]]> http://www.csklegal.com/pages/alyson-innes-was-recently-featured-in-brief-magazine-by-the-orange-county-bar-association/feed/ 0 http://www.csklegal.com/pages/medical-malpractice-legal-update-third-edition/ http://www.csklegal.com/pages/medical-malpractice-legal-update-third-edition/#comments Fri, 10 Feb 2012 19:37:48 +0000 Cole, Scott & Kissane, P.A. http://www.csklegal.com/?p=3869 “Causation Defense Prevails”

To prevail in a medical malpractice action the plaintiff must establish the following as to each defendant: the standard of care owed by the defendant, the defendant’s breach of the standard of care, and that said breach proximately caused the damages claimed.  Citing Gooding v. Univ. Hosp. Bldg., Inc., 445 So.2d 1015, 1018 (Fla. 1984).  The holding in Hollywood Medical Center, Inc. v. Alfred, Nos. 4D09-4878 and 4D10-1003 (Fla. 4th DCA 2012) highlights the importance of the third element. Hollywood Medical Center (hereinafter “HMC”) appealed a final judgment in favor of the plaintiff and argued the trial court erred in denying their motion for directed verdict, as the plaintiff failed to prove that any negligence on the part of HMC’s nursing staff affected Ursuline Alfred’s outcome, or that had the negligence not occurred, Alfred more likely than not would have survived.

Alfred presented to HMC after having suffered a mal seizure.  HMC nursing personnel evaluated Alfred 8 minutes after she arrived to the emergency room.  They recorded her vital signs and described her as a level 2 patient; however, her vital signs corresponded to a level one patient, meaning she required the most intensive care.  The emergency room physician simultaneously presented at bedside and ordered medication to prevent another seizure.  Thereafter, Alfred went into full cardiac arrest and was pronounced dead 38 minutes after arriving at the hospital.

Plaintiff’s experts opined Alfred suffered a pulmonary embolism, which she could have survived had the physician intubated Alfred upon his initial evaluation.  With respect to the nursing care, Plaintiff’s expert opined nursing personnel fell below the standard of care when they failed to take Alfred’s vital signs immediately upon presentation to the hospital, characterizing her as a level 2 patient, and failing to question the physician’s choice of drug treatment.

HMC moved for directed verdict as to its vicarious liability for the physician and its nursing staff.  HMC argued the plaintiff failed to prove that the nursing staff’s breach in the standard of care caused Alfred’s death.  Plaintiff only proved the physician’s failure to intubate contributed to Alfred’s death.  No one testified the nurses’ failure to act adversely affected Alfred’s outcome.  Without such testimony as to causation, the defendant is entitled to a directed verdict.  A plaintiff in a medical malpractice action must show more than a decreased chance of survival because of the defendant’s conduct.  Rather, the evidence must show the acts or omissions adversely affected the patient’s outcome.

Practice Note:

If there are several possible causes of injury to the plaintiff, and the evidence does not eliminate the non-negligent causes, the plaintiff has not met his burden of proof.

For further assistance or questions, please contact:

·         Paula Parisi (email to: paula.parisi@csklegal.com; 813-864-9311)

Partner in Cole, Scott & Kissane, P.A.’s Medical Malpractice Group.

SUPREME COURT OF UNITED STATES ALLOWS THIRD PARTY RETALIATION CLAIMS UNDER TITLE VII

Description of Third Party Retaliation Claims

A third party retaliation claim occurs when an employee engages in protected activity, such as complaining that he or she was unlawfully discriminated against under Title VII, and the employer retaliates by taking an adverse employment action against a coworker or third party instead of the employee who engaged in the protected activity.

United States Supreme Court Addresses Third Party Retaliation Claims

In the Supreme Court case of Thompson v. North American Stainless, LP, 131 S.Ct. 863 (2011), the employee/plaintiff, Eric Thompson, sued his former employer under Title VII’s anti-retaliation provision.  Thompson alleged that his former employer violated Title VII’s anti-retaliation provision by terminating him three weeks after receiving notice that his fiancé, who worked for the same employer, filed a charge of gender discrimination with the Equal Employment Opportunity Commission (“EEOC”).  The district court entered summary judgment in the employer’s favor and ruled that Title VII does not recognize third party retaliation claims, and the U.S. Court of Appeals for the Sixth Circuit (Kentucky, Michigan, Ohio and Tennessee) affirmed the decision before it was appealed to the Supreme Court.

The Supreme Court reversed the decision by holding that Title VII’s anti-retaliation provision extends to third party claims.  The Supreme Court reasoned that firing an employee’s fiancé could dissuade a reasonable employee from making or supporting a charge of discrimination and is therefore prohibited by the anti-retaliation provision of Title VII.  The Supreme Court further stated that firing an employee’s close relative because the employee engaged in activity protected by Title VII will “almost always” constitute unlawful retaliation, whereas “inflicting a milder reprisal on a mere acquaintance will almost never do so.”  However, the Supreme Court refused to identify a fixed class of relationships for which third party reprisals are unlawful, and stated that each case must be decided based on its own particular circumstances.  The Supreme Court also determined that the fiancé in Thompson had standing to bring a cause of action for his termination under Title VII because he fell within the “zone of interests” sought to be protected by Title VII’s anti-retaliation provision.  The Supreme Court held that the “zone of interests” test is used to determine if a party is “aggrieved” under Title VII, and this test enables suit by any plaintiff with any interest “arguably [sought] to be protected by the statutes.”

Practical Significance in EPL Claims Handling

The ruling in Thompson will likely increase the number of third party retaliation claims under Title VII nationwide because plaintiffs’ attorneys will argue for a broad interpretation of the decision to include potentially all relatives, friends, spouses, fiancés, girlfriends or boyfriends who suffer adverse employment actions after the employee engages in protected activity.  The major concern for employers is that they are at risk whenever they take an adverse employment action against an employee who has a close connection or relationship with a different employee who filed a charge of discrimination with the EEOC or otherwise engaged in protected activity.  Employers should consider whether the decision maker has knowledge of any connection or close relationship before the adverse employment action is carried out against the third party.  Employers should also ensure that any adverse employment action is supported by a legitimate, non-retaliatory reason that is well documented.

For further assistance or questions, please contact:

• Barry Postman email: barry.postman@csklegal.com; 561-383-9234
• Brian Rubenstein email: brian.rubenstein@csklegal.com; 813-864-9324

Partners in Cole, Scott & Kissane, P.A.’s Employment Law Group.

CSK Construction Division – January 2012 Legal Spotlight

Happy New Year!  This Month’s Construction Law Email Blast will focus on recent changes to Florida’s licensure requirements applicable to mold assessors and remediators and contractors in general.

FLORIDA LEGISLATURE CRACKS DOWN ON UNLICENSED

PRACTICE OF MOLD ASSESSORS AND MOLD REMEDIATORS

Starting on July 1, 2011, the Florida Legislature began the full enforcement of the unlicensed practice of mold assessors and mold remediators.  This means that anyone holding themselves out to be a mold assessor or mold remediator needs to be licensed through the Department of Business and Professional Regulation (“DBPR”) before he or she can engage in this type of business practice.  As set forth in Chapter 468 of the Florida Statutes, the legislature intends to prevent damage to real and personal property to avert economic injury to residents in Florida, and to regulate persons and companies that hold themselves out to the public as qualified to perform mold-related services.  See § 468.84, Florida Statutes.

The requirements mandated by the DBPR for licensure under this Statute include, but are not limited to: (i) applicants passing a licensing examination; (ii) applicants producing documented training in water, mold, and respiratory protection; (iii) applicants submitting proof of continuing education requirements for application renewal, and (iv) applicants maintaining insurance requirements for both mold assessors and mold remediators.  A mold assessor is required maintain general liability and errors and omissions for both preliminary and post-remediation mold assessment insurance coverage of at least $1 million, and mold remediators are required to maintain a general liability insurance policy in an amount not less than $1 million, that includes specific coverage for mold-related claims.  See § 468.8421, Florida Statutes.

Unlike § 489.128, Florida Statutes, which provides that contracts entered into on or after October 1, 1990 by unlicensed contractors are unenforceable in law or in equity, this statute does not specifically preclude unlicensed assessors and remediators from recovering in law or in equity.  However, the statute does create a basis for a common law defense against unlicensed mold assessors and remediators. Because the statute subjects unlicensed mold assessors and remediators to criminal penalties, one can argue that the unlicensed assessor or remediator is engaged in illegal activity under § 468.8419(3), Florida Statutes, and, therefore, should be denied any legal or equitable relief.

The licensing statute and common law defense are important to defense counsel and liability carriers for at least two reasons.  First, in underwriting, it is important to verify the licensure of the potential insured to minimize the insured risk.  Though the illegal activity of the unlicensed individual may not be covered, the negligence of the business entity in allowing the unlicensed individual to assess or remediate may be covered.

Second, for counsel defending an assessor or remediator, it is equally important to verify the insured’s licensure or become aware early in the representation of the insured’s unlicensed status and the implications for the defense.  Note that an unlicensed contractor may be barred from asserting legal or equitable defenses and pass through claims, in addition to being unable to recover money due for services rendered or work performed.