Articles Posted in Florida Case Law

Paul L. Kurth died in Missoula, Montana on January 26, 2000; he was 82 years old. At the time of his death he was living with his niece and her husband, Sinda and Marty Puryer. According to Mr. Puryer, two years prior to Mr. Kurth’s death, Mr. Kurth dictated his will to Mr. Puryer. In the will, entitled “Instructions and Last Will and Testament of Paul L. Kurth,” Mr. Kurth left everything he owned to the Puryers. The will was signed by Mr. Kurth and witnessed by Mr. Puryer and a long term care giver. In 2001, a year after Mr. Kurth’s death, Mrs. Puryer hired an attorney to administer Mr. Kurth’s estate. The attorney collected the personal assets of Mr. Kurth’s estate and distributed them to the Puryers, according to the holographic will of Mr. Kurth’s and an affidavit signed by Mrs. Puryer attesting to the legitimacy of the will.  Past that point of administration, the Puryers never formally probated Mr. Kurth’s will.

In addition to the Mr. Kurth’s personal property, he held a real property interest in mineral rights in eastern Montana. In 2013, thirteen years after Mr. Kurth’s death, an oil and gas company contacted Bruce Barstis, one of Mr. Kurth’s nephews, in hopes of leasing the minerals. Mr. Barstis promptly retained an attorney and notified all of Mr. Kurth’s heirs (he was never married and had no children, he was survived by three siblings and nine nieces and nephews) that his estate needed to be probated to effect the transfer of his real property interest. Mr. Barstis offered to act as the estate’s personal representative. As soon as Mr. Puryer received the notice from Mr. Barstis he filed a Petition for Formal Probate of Will and Appointment of Personal Representative.

Mr. Barstis challenged the alleged will on multiple grounds, including that the time for probate had passed and that the exceptions to the time frame did not apply. According to §72-3-122(1), a will must be probated within three years after the death of the decedent with some exceptions. If the will is not probated within that time frame and does not fit into one of the exceptions, then the will cannot be accepted for probate and the decedent is considered to have died intestate, meaning without a will. The District Court held that the time to probate the will had expired and that the Puryers did not meet the exceptions; therefore, Mr. Kurth died intestate and the estate must proceed under Montana intestacy statutes. The Puryers appealed the decision. The Supreme Court of the State of Montana affirmed the District Court’s decision.

In 2003, then Governor Jeb Bush signed into law Fla. Stat.§ 766.118, which capped the amount of recovery a plaintiff could receive from defendants for medical malpractice. The medical community claimed that doctors were fleeing Florida because of the sky-high cost of medical malpractice insurance and these caps would help to keep doctors in Florida and attract doctors to Florida. This statute limited noneconomic damages, otherwise known as pain and suffering, to between $500,000 and $1.5 million, depending on whether the healthcare provider is deemed a “practitioner” or a “nonpractitioner” and if the plaintiff died, was left in a vegetative state, or can prove “catastrophic injury.”

In November of 2006, Susan Kalitan arrived at Broward General Hospital for an out-patient carpal tunnel surgery, which is performed under general anesthesia. While the doctor and two nurses were administering the anesthesia, Kalitan’s esophagus was punctured. When she awoke in the recovery room, she immediately began complaining of chest and back pain, but because her heart rate and rhythm appeared normal, her complaints were ignored and she was sent home where her health deteriorated. The next morning Kalitan was discovered by a friend and rushed to the hospital. Kalitan was diagnosed with a perforated esophagus. Due to the perforation, fluid and food had escaped her esophagus and found its way into her chest cavity for more than 24 hours, causing a life-threatening infection. Kalitan had to have chest and neck surgery performed to remove the foreign material from her chest and remove the infection. She was then placed into a drug induced coma for three weeks while she recovered and fed through a feeding tube. When Kalitan awoke from her coma she remained in the hospital for several more weeks; she underwent speech pathology to learn to speak and swallow again and physical therapy to learn how to walk again. Kalitan remained on a feeding tube for six months. These are just of few of the complication that Kalitan continued to suffer because of the negligence of the anesthesiologist and Broward General Hospital.

In 2008 Kalitan filed a medical malpractice suit against North Broward Hospital District (“North Broward”) and the doctors and nurses who administered the anesthesia and their employers. In 2011 the case went to trial and the jury found the anesthesiologist, nurse anesthetist, student nurse anesthetist and the nurses at North Broward negligent and awarded her $4,718,000 in damages; $718,000 in economic damages and $4,000,000 in non-economic damages. Unfortunately, because of Fla. Stat.§ 766.118, Kalitan’s damages were reduced by the trial judge to $2,793,011. Both Kalitan and the Defendants appealed the decision and the Fourth District Court of Appeals reversed based upon the Florida Supreme Court’s decision in Estate of McCall v. United States, 134 So.3d 894 (Fla. 2014). In McCall the Court found that the caps in Fla. Stat.§ 766.118 were unconstitutional in multiple claimant personal injury cases.

Florida’s 4th District Court of Appeals handed down a decision earlier this month that will effectively remove the caps on non-economic damages, such as pain and suffering, in Florida medical malpractice and personal injury lawsuits. The Court decided that arbitrarily limiting the amount that an injured plaintiff can recover for non-economic damages violated the equal protection clause of the state constitution. As a result of the ruling, plaintiffs in medical malpractice lawsuits can seek and be awarded any amount of non-economic damages that the judge or jury sees fit.

The Case of Susan Kalitan

Susan Kalitan filed a malpractice lawsuit in 2008 against the North Broward Hospital District and several physicians who treated her during an outpatient carpal-tunnel surgery that she had performed in 2008. Kalitan was placed under general anesthesia for the surgery, and after she returned home, she began suffering from an infection in her esophagus and was required to return to the hospital to undergo chest and neck surgery. She was placed in a drug-induced coma for three weeks while recovering.

After the trial, the jury awarded Ms. Kalitan $4.7 million in damages, $4 million of which were non-economic damages for pain and suffering. The award was reduced by $2 million using the limits put into place by a 2003 law, and Kalitan appealed.

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In a recent case, the Florida Supreme Court determined drivers cannot be prosecuted for leaving the scene of a car accident unless they knew they were involved in the accident when it occurred. The case involved a truck driver who hit a teenage boy on his skateboard on highway A1A in Boca Raton in 2007. The boy fell into a crosswalk and was struck by the driver, who was pulled over by police after the boy was dragged some 90 feet under the truck. The driver was not found to have been under the influence of drugs or alcohol, but he claimed he was not aware of the accident because his radio, air conditioning, and windshield wipers were all on at the time of the accident, which occurred in the rain.

One witness saw the back tire run over the boy, and another witness saw the skateboard jettisoned out from beneath the truck and split into two pieces. The truck showed no signs of damage from the accident, and police found no skid marks at the site of the crash. Unfortunately, the boy suffered severe brain injuries as a result of the accident and was in a coma for several weeks.

Automobile Accident Victims’ Rights in Florida

Although the state Supreme Court ruled that, in order to convict a driver of leaving the scene of a crash, prosecutors must prove beyond a reasonable doubt that a driver is aware of the accident at the time it occurs, Florida law still allows accident victims and certain family members to sue a driver for monetary damages without proving beyond a reasonable doubt that the driver is aware of the crash.

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The Supreme Court of Idaho reversed a medical malpractice case in favor of the plaintiff. The defendant is a nursing home that specializes in long-term rehabilitation care. The plaintiff’s mother was a resident of the nursing home for five years. Apparently, during her stay there, the plaintiff’s mother had a fall. Subsequently, emergency room physicians administered medication that caused the plaintiff’s mother to have extreme side effects, including nausea, vomiting, and other issues. She was placed in the “comfort care” unit of the nursing home, and unfortunately she died shortly thereafter.

The plaintiff filed a complaint against the nursing home, claiming that it knew of his mother’s fall risk and that it did not provide adequate support to prevent the fall. The company moved to dismiss the case, claiming that the plaintiff did not prove that it acted below the appropriate standard of care.

The nursing home provided an affidavit from the nursing care director that it did follow appropriate protocols, and as a result the plaintiff also provided affidavits from two experts stating that the nursing home did indeed fall below the standard of care. The Court initially ruled in favor of the defendants, but the Supreme Court of Idaho found that the affidavits provided by the plaintiff were reliable and should have been admitted because they go to genuine issues of material fact.
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The Medical Liability Act was enacted in 2003 in an attempt to make health care more accessible and reduce insurance premiums. The Act explains that under the “statute of repose” individuals may only bring medical malpractice claims within 10 years of the medical treatment giving rise to the claim.


In Tenet Hosps. Ltd. v. Rivera, Ms. Rivera claimed that when she was nine months pregnant she started feeling ill and was experiencing a cough and a fever. She visited an emergency room at Providence Hospital in Texas.  A doctor at the hospital examined her and subsequently discharged her. The next day, Ms. Rivera returned to the hospital after noticing a decrease in her child’s movement. Her child was delivered via an emergency C-section. Ms. Rivera claims that her child’s lack of oxygen resulted in severe and permanent neurological disabilities.

Legal Proceedings

Ms. Rivera felt that the treating emergency room doctor should have notified Ms. Rivera’s OB/GYN of the issues she was experiencing and taken additional steps to ensure the health and safety of her child. Ms. Rivera’s attorney sent a notice of a claim to the hospital in 2004, nearly eight years after the incident, and did not file suit until March 2011 – 15 years after the injury and five years after the statute barred the claim.

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During the discovery process in a Florida personal injury suit, both parties are required to hand over certain evidence that they believe they will introduce at trial. This is fair to both sides, for it decreases the chance of being surprised on the day of trial.

Discovery rules are strict and, if not complied with, can result in the forfeiture of the ability to submit the evidence in question. For example, in the recent case of Kellner v. David, that is exactly what happened to the defendant, who tried to submit his measurements of the accident scene.

Kellner v. David: The Facts

The facts of the case are fairly straightforward. David was riding a motorcycle down a highway with a posted speed limit of 45 miles per hour. At some point, Kellner pulled out in front of David, causing the two to collide. David sued Kellner, alleging that he was negligent when he pulled out in front of her. Kellner’s defense was that David was speeding and, therefore, it was not his fault he didn’t see her coming.

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About a week ago, a Florida district court upheld a jury verdict awarding the family of a man killed by police $2.26 million. According to a report by CBS 12 News, the man was killed after he was involved in an altercation with police that he may have started. Evidently, the man was shouting at traffic and acting “strangely” when police approached him.

One thing led to another, and the encounter escalated. Police eventually shot the man, mortally wounding him. As he was dying, one or more police officers repeatedly shocked the man using their stun guns. The man soon died from his injuries.

At trial, the man’s family claimed that the actions of the police were excessive and filed a wrongful death suit against the government. After hearing the evidence, the jury determined that the use of the stun gun constituted “excessive and objectively unreasonable force,” awarding them $2.26 million. The district court judge upheld the jury’s verdict. A spokesperson for the police force indicated that it plans to appeal the decision.

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The Florida justice system sees hundreds of thousands of cases each year. Many of these cases are medical malpractice cases. Essentially, a medical malpractice case is a claim of medical negligence, alleging that, but for the medical professional’s negligence, the plaintiff would have avoided the harm that they suffered.

In an effort to make sure that the court system is able to handle each case with the individual attention it deserves, and to ensure that both sides are treated fairly, Florida lawmakers have come up with a series of procedural rules that must be followed in all medical malpractice cases. When these procedural rules are not followed, a medical malpractice plaintiff may lose their ability to bring their case. However, the procedural steps are only required when the plaintiff is bringing a medical malpractice suit.

Pierrot v. Osceola Mental Health, Inc.

In the recent case, Pierrot v. Osceola Mental Health, Inc., a Florida court had the occasion to explain when the procedural requirements for medical malpractice cases apply. The basic facts are as follows: A pregnant woman was involuntarily committed to a mental health facility (Osceola Mental Health) after she told witnesses that she was suffering extreme abdominal pain. After the woman was taken to the hospital, the staff failed to properly care for her and she died a few days later. The plaintiff in this case then filed suit under the “Baker Act” Continue reading ›

Issues of negligence are usually determined by the jury. However, in some cases where the plaintiff’s case is especially weak, a defendant may petition the court to dismiss the case against them. This is usually the case when the plaintiff does not submit enough evidence to prove that a legal cause of action exists, even if the court assumes all the plaintiff’s evidence is true. Procedurally, this process is called “summary judgment.”

Weider v. King Cole Condominium Association, Inc.

In a recent case by a Florida court of appeals, Weider v. King Cole Condominium Association, Inc., the court reversed a summary judgment motion granted by the trial court. The facts of the case are as follows: Weider was a resident in a condominium owned and operated by King Cole. At some point during her residency, she tripped over a “buckling” in the carpet in one of the condominiums’ common areas. The carpet had recently been cleaned and was still wet at the time of Weider’s accident. Apparently, the wet condition of the carpet made the buckling more pronounced. Continue reading ›

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