Patrick Wier Obtained a Summary Judgment in a Wrongful Death Case. Jason Azzarone Successfully Argues for Affirmance to the Second District Court of Appeal.

Patrick Wier Obtained a Summary Judgment in a Wrongful Death Case. Jason Azzarone Successfully Argues for Affirmance to the Second District Court of Appeal.

Jason M. AzzaronePatrick D. WierPatrick Wier obtained Summary Judgment in a wrongful death case where the firm represented an agency that provided foster care for infants. At the Trial Court level, the Plaintiff argued that the Defendant negligently failed to supervise the foster parents. There were also claims for negligent training. In light of the foster parents’ concession that they were properly trained and failed to follow the training, the Trial Court granted the Defendant’s Motion for Summary Judgment, finding that there was no breach of any duty owed by the Defendant to the minor child. Additionally, the Trial Court found that there was no causal link between the Defendant’s actions and the events surrounding the infant’s death.

The Plaintiff appealed the Trial Court’s decision to the Second District Court of Appeal. On appeal, the Plaintiff/Appellant argued that the Trial Court erroneously granted the Motion for Summary Judgment because the agency owed a duty to the decedent and the intervening actions of the foster parents did not negate that duty. The Plaintiff/Appellant also argued that the agency owed a continuing duty to the infant to see that the foster parents were caring for the child properly. Finally, the Plaintiff/Appellant argued that genuine issues of fact remained regarding the training of the foster parents. Following oral argument, the Second District Court of Appeal entered a Per Curiam Affirmance.

Jason Azzarone was successful in arguing to the Sixth District Court of Appeal in a case involving Amendment VII

Jason Azzarone was successful in arguing to the Sixth District Court of Appeal in a case involving Amendment VII

Jason M. AzzaroneJason Azzarone was successful in arguing to the Sixth District Court of Appeal that the Trial Court erred in overruling objections to interrogatories propounded by the Plaintiff in a medical malpractice action. Specifically, Mr. Azzarone argued that the Trial Court’s order required the Defendant Hospital and Physician to respond to interrogatories that requested information regarding credentialing and medical review committee or board investigations on the basis that the information was discoverable pursuant to Article 10, Section 25 of the Florida Constitution, which is commonly known as Amendment VII. On Certiorari, Mr. Azzarone argued that the Trial Court’s Order overruling the objections departed from the essential requirements of law in requiring the Hospital and Physician to provide information that was protected by Florida Statutes §§ 395.0191(8), 395.0193(8) and 766.101(5). In quashing the Order under review, the Sixth District Court of Appeal agreed that the plain language of Amendment VII did not apply to interrogatories. The Sixth District Court of Appeal also agreed with the argument that the information was statutorily immune from discovery.

Tia Jones Obtained a Dismissal for Fraud Upon the Court. Jason Azzarone Successfully Argues for Affirmance to the Second District Court of Appeal

Tia Jones Obtained a Dismissal for Fraud Upon the Court. Jason Azzarone Successfully Argues for Affirmance to the Second District Court of Appeal.

Jason M. AzzaroneTia J. JonesTia Jones successfully argued to the Trial Court that the Plaintiff’s Complaint should be dismissed for Fraud Upon the Court where the firm represented the owner of an apartment complex. The Plaintiff alleged that she slipped and fell while walking through her apartment after advising the Defendant of a water leak. Over the course of discovery, the Defendant discovered that the Plaintiff had numerous back surgeries ranging over a decade which were not disclosed. The Defendant also learned that the Plaintiff had sought disability benefits for the exact injuries she was alleging stem from the slip and fall. The Trial Court granted the Defendant’s Motion to Dismiss for Fraud on the Court, finding that the Plaintiff was not truthful in her discovery responses.

The Plaintiff appealed the Trial Court’s decision to the Second District Court of Appeal. On appeal, the Plaintiff/Appellant argued that the Trial Court erroneously granted the Motion to Dismiss because the issue of the Plaintiff’s past medical care went to her credibility which the jury should determine. Plaintiff/Appellant also argued that the Plaintiff did not intentionally misrepresent her past medical condition. Following oral argument, the Fourth District Court of Appeal entered a Per Curiam Affirmance.

Patrick Wier Obtained a Summary Judgment in a Wrongful Death Case. Jason Azzarone Successfully Argues for Affirmance to the Fourth District Court of Appeal.

Patrick Wier Obtained a Summary Judgment in a Wrongful Death Case. Jason Azzarone Successfully Argues for Affirmance to the Fourth District Court of Appeal.

Jason M. AzzaronePatrick D. WierPatrick Wier was successful in arguing that Summary Judgment was appropriate in a case where the Plaintiff asserted wrongful death stemming from a suicide. Mr. Wier represented physicians who treated the decedent prior to his suicide. The Plaintiff asserted that the physicians should not have released decedent from the hospital without conducting a psychiatric evaluation. At Summary Judgment, Mr. Wier argued that a psychiatric evaluation was performed and further argued that the ultimate death of the decedent did not stem from any alleged medical negligence which occurred over a month later. Mr. Wier also argued that there was no duty to involuntarily commit the decedent. Finally, Mr. Wier argued that the Plaintiff’s expert could not opine that any of the Defendant’s actions caused the decedent’s death without the use of speculation. The Trial Court agreed and entered an Order granting Final Summary Judgment.

The Plaintiff appealed the Trial Court’s decision to the Fourth District Court of Appeal. On appeal, the Plaintiff/Appellant argued that the Trial Court erroneously granted the Motion for Summary Judgment because the physicians owed a duty to the decedent. The Plaintiff/Appellant also argued that genuine issues of material fact existed, precluding summary judgment. Following oral argument, the Fourth District Court of Appeal entered a Per Curiam Affirmance.

Gregory Glasser Obtains a Summary Judgment for Jackson Memorial Hospital in Miami

Gregory Glasser Obtains a Summary Judgment for Jackson Memorial Hospital in Miami

Gregory GlasserGregory Glasser recently won a Summary Judgment on behalf of Miami-Dade County and Jackson Memorial Hospital. In this case the Plaintiff was atop an elevator cab performing service work when the elevator unexpectedly energized and went up, crushing the Plaintiff between the cab and the building structure and resulting in catastrophic injury. Greg successfully argued that our clients were protected by sovereign immunity, and even if immunity did not apply, our clients owed no duty to the Plaintiff. The Miami-Dade County Judge agreed and entered a lengthy order in favor of our clients, finding sovereign immunity applied and no duty was owed.

Lou La Cava and Justine Adamski Obtained a Defense Verdict in a Wrongful Death Case Against a Hospitalist in Pinellas County Florida

Lou La Cava and Justine Adamski Obtained a Defense Verdict in a Wrongful Death Case Against a Hospitalist in Pinellas County Florida

Justine D. AdamskiLouis J. La Cava

Lou La Cava and Justine Adamski obtained a defense verdict in a two week medical malpractice wrongful death case tried in Pinellas County. The Plaintiff, who was 63 years old at the time, died within 26 hours after being discharged by the defendant hospitalist. He was survived by his wife and daughter. The patient came into the ER after having two episodes of shortness of breath and chest tightness the night before and the day of the visit. ER did an EKG which showed a left axis deviation and was called abnormal. A second EKG was normal. They worked him up as a cardiac patient. Troponins were normal. Chest x-ray was normal and D-Dimer was normal. ER physician’s assistant asked that the patient be admitted. The defendant admitted him for observation rather than as an in patient. The patient gave a history of asthma and took Advair for that. He had hypertension and diabetes. The defendant ordered an exercise and nuclear stress test to be performed the next morning. It was performed by a nuclear medicine physician. It was read as normal with the patient going about 7 minutes before needing the test stopped for fatigue and shortness of breath. The patient had two additional episodes of SOB in the hospital that appeared to be relieved by his asthma medicine. After the stress test the defendant discharged him but did not write a note and did not document a physical exam. He did not dictate his discharge summary until the next day after the patient had passed away. The patient was given a prescription for Albuterol to use as a rescue inhaler if he became SOB. The discharge diagnosis was reactive airway disease. It was recommended that he see his PCP in a week and have out patient pulmonary function tests done. He was told to do activities as tolerated. He went home and was apparently fine that day. He did not get the prescription for albuterol filled. The next day he was apparently fine in the morning but toward noon he began having either SOB or chest pain. He asked his wife to pick up the prescription. He went up to lie down and when the wife returned he had passed away. This was approximately 26 hours after he left the hospital. On autopsy he have left ventricular hypertrophy and moderate to severe COPD and emphysema. He apparently died from an arrythmia.

Plaintiff claimed he needed cardiac and pulmonary consults. Cardiologist would have ordered an echocardiogram which would have diagnosed LVH. A pulmonologist they claimed would have done pulmonary function studies which would have diagnosed his lung disease. If this was done plaintiff alleged he would have been put on alternative lung medication because the one he was on can increase the likelihood of an arrythmia. He would have also been given an oral steroid. A cardiologist would have adjusted his blood pressure meds to try to reverse his LVH. He would have been placed on bed rest and would have survived. Plaintiff had 4 expert witnesses testify. Plaintiff alleged his death was caused by another pulmonary SOB episode that led to the arrythmia.

The defense was that prospectively there was no need for the consultations. From a cardiac standpoint the work up was negative including an ejection fraction of 63. Even though he may have had LVH it was not causing left ventricular dysfunction. Therefore, the echocardiogram was not indicated. A pulmonologist was not needed because his pulmonary problem was not severe or continuous. It was episodic and responded to treatment. He did not need oral steroids for the same reason. The defense experts opined he died purely of a cardiac sudden death and there was nothing that could have been done in the hospital to prevent the death. PFTs can be done as an outpatient and even if done in the hospital would not have changed the treatment. The defense argued that when judged prospectively the care was well within the standard of care.

The jury deliberated approximately one hour and returned a verdict for the defense.

Mario Gomez Obtains Dismissal after Filing a MTD for Fraud

Mario Gomez Obtains Dismissal after Filing a MTD for Fraud

Mario GomezPlaintiffs, husband, and wife filed suit claiming permanent injuries stemming from a rear-end motor vehicle accident. Both claimed injury to their spine, resulting in various procedures and surgeries. Combined, the Plaintiffs incurred just under $500,000 in Letter of Protection medical bills. Plaintiffs produced photographs of their vehicle showing a dented bumper, trunk, and broken taillight. Plaintiffs used the severity of the impact to bolster their medical causation arguments and the need for the procedures and surgeries. Defendant denied causing any damage to the Plaintiffs’ bumper as the impact was low velocity (but had no photos from the scene of the accident to prove his position). However, Defendant was able to obtain deposition testimony from the police officer, and bodycam footage (although somewhat blurry from humidity) from the accident scene to prove there was no visible damage to the rear of the Plaintiff’s vehicle.

Defendant also retained an accident reconstruction expert and biomechanical expert to support the Defendant’s position that the height differential in the vehicles could not have resulted in the type of damage claimed, and that the minor impact could not have caused sufficient velocity/forces to cause the injuries claimed. Additionally, Plaintiffs denied and/or downplayed their multiple prior injury claims, and the Defendant uncovered a combined fourteen (14) personal injury claims between the husband and wife, arguing that the two were serial Plaintiffs. Surveillance footage captured the two Plaintiffs engaging in multiple activities that they claimed in deposition they could not perform because of their alleged permanent injuries. The Defendant also uncovered that one of the Plaintiff’s was not taking the narcotic mediation prescribed by his pain management specialist (though pharmacy records revealed multiple purchases). In fact, the Plaintiff husband’s urinalysis revealed that he was instead abusing Fentanyl (a non-prescribed drug) which he was likely purchasing from the sale of the prescribed narcotic mediation. As a result, the extensive discovery, the Defendant filed a Motion to Dismiss for Fraud. The case was ultimately dismissed, and the Court entered an award in favor of the Defendants to recover all their costs.

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Mario Gomez obtains Dismissal of Plaintiff’s Complaint following Motion for Summary Judgment/Motion to Dismiss for Fraud

Mario Gomez obtains Dismissal of Plaintiff’s Complaint following Motion for Summary Judgment/Motion to Dismiss for Fraud

Mario GomezPlaintiff filed a suit claiming personal injuries stemming from a premises liability claim against the owner of the property (Defendant). Plaintiff claimed he slipped and fell causing permanent injuries which included a wrist fracture, spinal injuries, and a traumatic brain injury. The incident was captured on the property owner’s surveillance footage. Defendant objected to the video’s production in discovery before the Plaintiff was deposed so as to not allow the Plaintiff to alter his testimony in line with the footage. Plaintiff’s testimony sharply contradicted the footage which revealed the Plaintiff was liable for his own claimed injuries. As a result of the glaring contradiction between the deposition testimony and surveillance footage, the Defendant filed a Motion for Summary Judgment (based on the newly implemented summary judgment standards), Motion to Dismiss for Fraud, as well as serving the Plaintiff and his attorney a Motion for 57.105 Sanctions and the required Safe Harbor Letter. As a result, the Plaintiff filed a Voluntary Dismissal to avoid the imposition of sanctions.

Keith Puya and Steven Lury Were Successful in Defending a Medical Malpractice claim in Palm Beach County

Keith Puya and Steven Lury Were Successful in Defending a Medical Malpractice claim in Palm Beach County

Steven M. LuryKeith J. PuyaKeith Puya and Steven Lury represented an orthopedic surgeon in Palm Beach County in connection with a medical malpractice claim. It was alleged that the client was negligent in performing a diagnostic knee arthroscopy in the presence of a potential infectious process, i.e., a scab on the surgical knee. Post surgery, the Plaintiff developed a severe MRSA infection in the knee requiring several months of IV antibiotic therapy, followed by oral antibiotics. Plaintiff is now in need of a total knee replacement at the age of 30. Mr. Bamburg also had approximately 14 surgeries, including a major fasciotomy, a number of arthrotomies and manipulations under anesthesia as well as over $1.3 million in medical expenses. Both the plaintiff’s treating orthopedic and retained expert did not believe it was safe for him to have a total knee replacement, given his extremely high risk for developing a peri-prosthetic joint infection and the possible need for an amputation. The plaintiff is left with a significant flexion contracture, loss of extension and major scarring and deformity of his right leg.

The plaintiff requested the jury award damages in the range of approximately $19 million to around $28 million dollars give the fact that the plaintiff’s projected life expectancy was over 45 years. The defense centered around the fact that although there were numerous post operative pictures, there was no picture of any scab on the surgical knee, even though the Surgery Center nurses, pre-operatively noted in the records that the patient had ‘scabs on bilateral knees.’ The defense was successful in showing the jury that the client did not and never would perform an elective surgical procedure at or through a scab as suggested by the Plaintiff. The jury deliberated the case for 90 minutes and returned a Defense Verdict.

Patrick Wier and Jeffrey Goodis Successfully Argued that the Plaintiff Was Not Entitled to Present His Case to the Jury

Patrick Wier and Jeffrey Goodis Successfully Argued that the Plaintiff Was Not Entitled to Present His Case to the Jury

Jeffrey M. GoodisPatrick D. Wier In a case involving allegations of prosecutorial misconduct, Patrick Wier and Jeffrey Goodis successfully argued to both the Trial Court and the Second District Court of Appeal that the Plaintiff was not entitled to present his case to the jury because of the protections of Qualified Immunity. At the Trial Court level, they argued that the Plaintiff’s claim did not present any issues of material fact that could provide a reasonable basis to allege that the Defendant acted in a manner that was plainly incompetent or in knowing violation of the law when he performed his duties as an Assistant State’s Attorney. One of the issues argued was whether bad faith, including alleged legal malice, as an element of malicious prosecution, was sufficient to override a prosecutor’s immunity. Mr. Wier and Mr. Goodis argued that the prosecutor’s conduct was in good faith and that based on the knowledge of the facts at the time of filing of the Information, even if some investigative activity was performed, the prosecutor’s actions did not amount to bad faith as sometimes a prosecutor could make a decision that would later be questioned, or a victim could choose not to further pursue his or her claim, and neither would be sufficient to show the prosecutor acted in knowing violation of the law. They also argued that the Plaintiff had violated the victim’s right to custody several times prior to the date on which the Information was filed. The Trial Court entered an Order granting Final Summary Judgment in favor of the Defendant. Upon Plaintiff’s appeal of this decision, Mr. Wier and Mr. Goodis argued that the Trial Court’s decision was correct. The Second District Court of Appeal agreed and affirmed the Trial Court’s decision.