Andrew Hudson recently prevailed on a Motion to Dismiss with Prejudice. Plaintiff filed a medical malpractice Complaint against healthcare Defendants without serving a Notice of Intent and accordingly did not participate in pre-suit as required by Florida Statue 766. Following arguments by all parties, the Judge ruled in favor of the Defense and found that the subsequent serving of a notice of intent could not be curative because the statute of limitations had run and accordingly the ruling was with prejudice.

Kelly Neufville obtained Summary Judgment in a personal injury case where the firm represented an equestrian center that offers many services, including guided horseback trail rides. In this case, the Plaintiff’s horse would not traverse a puddle on the trail, so the equestrian center’s guide instructed the Plaintiff to go around the puddle, off trail, and ultimately to dismount the horse when it got stuck in muddy terrain. The Plaintiff argued that she was reliant on instruction from the guide as to how to safely participate in equine activities and that the Defendant’s trail guide negligently instructed a novice rider to dismount a horse, resulting in injury. The Trial Court granted the Defendant’s Motion for Summary Judgment, finding that the defendant was entitled to statutory immunity from liability under Florida Statute 773.02 and that no exception existed under Florida Statute 773.03.

Tia 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.

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.