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Late Breaking Court Decisions |
Arguing Unnecessary Surgery: Proceed at Your Own Risk!
By Thom Glasson
Nason v. Shafranski, is an April 28, 2010 decision from the 4th DCA which involved an automobile accident where the plaintiff received treatment for neck and back injuries. The plaintiff was referred to neurosurgeon Dr. Charles Theofilos, of Palm Beach Gardens, who started with conservative treatment but quickly moved on to injections, non-invasive procedures and then two surgeries. Defense admitted liability, but disputed the amount of damages and further contended that the surgeries were unnecessary.
The Plaintiff asked for a jury instruction regarding intervening cause-wrongdoer negligence in causing the original injury where medical treatment aggravated or  increased injuries. The defense argued that they weren't arguing Dr. Theofilos' negligence, they were arguing the Plaintiff's decision to undergo the surgeries. The court declined the instruction.
During deliberations, the jury asked the question "where there's an unscrupulous doctor, does that relieve the Defendant under the law from liability?" The Plaintiff again asked the Court for the intervening cause-wrongdoer negligence instruction and the Court refused.
The Plaintiff asked for $3-4 million. Medical bills were $340,000 and economic damages were testified to as being $733,000. The jury returned a verdict in the amount of $338,000. The Plaintiff appealed.
In the appeal, the Court reversed and remanded, noting that the Defense expert clearly focused on the treater's (Dr. Theofilos) lack of skill, judgment and the poor result. The jury's confusion regarding this issue was apparent from their note, according to the opinion.
The 4th DCA ruled that the trial court erred by allowing the Defendant to present expert testimony regarding the surgeries being unnecessary, thereby shifting the blame from the Defendant to the Plaintiff's physician. The error was compounded by disallowing the Plaintiff's requested jury instruction. The case was remanded for a new trial. |
Navigating the Changing Ground Rules for Proposals for Settlement (PFS's)
By Thom Glasson
Attorney's Title Insurance Fund, Inc. v. Gorka et al, No. SC08-1899 (April 1, 2010) is a case in which Gorka and Larson sued Attorney's Title Insurance Fund relative to an alleged failure to defend in a title dispute.
Attorney's Title filed a joint PFS which contained a requirement that the offer be accepted by both plaintiffs and stated explicitly that "neither plaintiff can independently accept the offer without their co-plaintiff joining in the settlement."
The PFS was not accepted by either plaintiff. A bench trial returned a judgment for Attorney's Title and they filed a motion to tax fees and costs but the trial court found the PFS was invalid and unenforceable. The 2nd DCA affirmed and the Supreme Court agreed, finding that the joint offer was invalid and unenforceable because it was conditioned such that neither offeree could independently evaluate or settle his/her respective claim by accepting the proposal.
The Supreme Court in Lamb v. Matetzschk recognized in 2005 that "each [party] should be able to settle the suit knowing the extent of his or her financial responsibility." This new Supreme Court opinion goes on to say, "[t]herefore, it is inherent that the offer of settlement cannot be conditioned on joint acceptance, which is the antithesis of a differentiated offer."
While this is certainly a change in the law as to what is acceptable and enforceable with PFS's, there are still effective ways to use these very important litigation tools.
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Kirwan & Spellacy is a full-service defense litigation firm serving the diverse needs of the insurance and business community throughout Florida.
Practice Areas include:
Automobile Liability/ Uninsured Motorist
Commercial Premises & General Liability
Liability Claims
Personal Injury Protection
Special Investigative Unit/Fraud
Subrogation
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Locations
Fort Lauderdale
888 S.E. 3rd Avenue
Suite 301
Fort Lauderdale, FL 33316
(954) 463-3008
Miami
19 West Flagler Street
Suite 1100
Miami, FL 33130
(786) 275-3140
Jupiter
275 Toney Penna Drive
Suite 1, Jupiter, FL 33458
(561) 615-0333
Winter Haven
595 Cypress Gardens Blvd., Suite 320
Winter Haven, FL 33880 (863) 508-1684
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Contact Shawn Spellacy directly.
Email or telephone 954.463.3008.
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CE Seminars: Proposals For Settlement |
| Kirwan & Spellacy offers a state-certified continuing education seminar for adjusters on Proposals for Settlement, as well as other relevant topics, as a courtesy to our clients. Let us know if we can bring a seminar to your office on this changing area of law, bringing you up to date on the latest changes, and providing continuing education credits toward your requirements. We are happy to help!
Contact Shawn Spellacy at 954-463-3008, or by email to schedule a seminar, or for more information on this and other complimentary CE course offerings.
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