DEFENDANT'S VERDICT - MEDICAL MALPRACTICE - OB/GYN NEGLIGENCE - ALLEGED LACK OF INFORMED CONSENT - CLAIMED UNNECESSARY AND NEGLIGENTLY PERFORMED GYNECOLOGICAL SURGERY - PHYSICAL DEFORMITY - NEUROLOGICAL DEFICITS - SEXUAL DYSFUNCTION.

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weiler on the subject premises and of the dog’s vicious

propensities including the dog’s prior attack on a

Maltese poodle.

The plaintiff argued that the defendant failed in its duty

to the plaintiff in that it had the ability to control the pre-

misesbutfailedtotakeanyreasonableactiontopre

-

vent the dog from existing on the property and failed to

enforce the conditions outlined in its community rules

and regulations. The plaintiff alleged that the attack re-

sulted in permanent injuries. As a result of the attack, the

plaintiff suffered scratches and bite wounds to his left

hand. The plaintiff also sustained a torn labrum in trying

to fend off the attacking dog for which he underwent

surgery.

The third-party defendants purchased their house under

a Special Warranty Deed which specified that they were

required to defend and indemnify the defendant devel-

opment from any and all claims, including attorneys’

fees, resulting from or relating to the use of the common

areas of the Silver Palms Development by the third-party

defendant’s guests, family members or invitees. Further,

pursuant to Section 15.2 of the Deed, “No pet shall be

permitted outside a Home unless such pet is kept on a

leashorwithinanenclosedportionoftheyard…”The

defendant’s discovery revealed that the subject Rott-

weiler escaped from his leash while being walked by the

dog owner who, along with the Rottweiler, was residing

at the third-party defendants’ house on the date of the

incident, with the third-party defendants’ knowledge and

permission. The defendant argued that the proximate

cause of the plaintiff’s damage were the acts and/or

omissions of the third-party defendants’ guest in failing to

properly secure and restrain the dog and that the duties

alleged by the plaintiff in his complaint to have been

breached by the defendant development were the

responsibility of the third-party defendants, pursuant to

the Declaration.

Prior to trial, the parties settled the claim as to the third-

party defendants and the matter went to trial as to the

defendant condominium community and its manage-

ment company.

The jury found negligence on the part of the defendant

condominium community and its management com-

pany equally and no negligence by the dog owner. The

jury awarded the plaintiff damages in the amount of

$172,500 broken down as follows: $127,500 in past

medical expenses; $15,000 in future medical expenses;

$15,000 in past loss of earnings; $0 in future loss of earn-

ings; $15,000 in past non-economic damages and $0

in future non-economic damages.

REFERENCE

Brandon vs. Silver Palms by Lennar Community Associa-

tion, Inc. et al. Case no. 2019-03 693 6-CA-01; Judge

William Thomas, 05-18-22.

Attorney for plaintiff: Yeemee Chan of Steinger,

Greene & Feiner in Fort Lauderdale, FL. Attorney for

defendant: Steven Hemmert of Law Office of David S.

Lefton in Plantation, FL.

COMMENTARY

Following the verdict, the defendants filed a Motion for Directed

Verdict on Future Damages. Pursuant to Fla. R. Civ. P. 1.480, the

defendants asked the court to strike that portion of the jury verdict

relating to future medical expenses in accordance with the defen-

dants’ motion for directed verdict made during trial. The defendant

argued that, in his case in chief, the plaintiff presented the testi-

mony of only one medical expert who testified via video deposition.

The plaintiff’s expert testified that he performed an arthroscopic

surgery on the plaintiff to repair a torn labrum. As to future medi-

cal care, the plaintiff’s expert testified that he will need follow-up

that could include anything from X-rays to follow-up the arthro-

scopic surgeries to clean out scar tissue, or possibly, if post-trau-

matic arthrosis develops, a possible joint replacement. When asked

about specific costs of future treatment, the plaintiff’s expert stated,

“I have an idea, uh, but, uh, like I said, I – I cannot, uh, tell, uh,

exactly what is going to be needed in this case.” At the close of the

evidence, the defendants moved for directed verdict, arguing that

the plaintiff had not proven that future medical expenses will be

more probable than not to occur. The motion was denied, with the

court finding that the plaintiff’s expert’s opinions regarding future

medicalcareweresufficientfortheissuetogotothejury.

The defendants renewed their motion post-trial arguing that the

plaintiff failed to establish that he is reasonably certain to incur

any medical expenses in the future. There was no testimony what-

soever that future care or treatment would be “reasonably certain”

or “more probable than not.” Therefore, the plaintiff failed to meet

his burden of establishing that future medical expenses will more

probably than not be incurred per Fasani v. Kowalski, 43 So. 3d

805 (Fla. 3d DCA 2010), citing Auto-Owners Insurance Co. v.

Tompkins, 651 So. 2d 89 (Fla. 1995) and Loftin v. Wilson, 67 So.

2d 185 (Fla. 1953). The defendants’ motion is pending.

DEFENDANT’S VERDICT – MEDICAL MALPRACTICE – OB/GYN NEGLIGENCE – ALLEGED

LACK OF INFORMED CONSENT – CLAIMED UNNECESSARY AND NEGLIGENTLY

PERFORMED GYNECOLOGICAL SURGERY – PHYSICAL DEFORMITY – NEUROLOGICAL

DEFICITS – SEXUAL DYSFUNCTION.

Palm Beach County, FL

This medical malpractice action arose from the

defendant doctor’s performance of the excisions

of multiple vulvar lesions on the plaintiff. The

plaintiff claimed that during the procedure, an

additional surgery (a labiaplasty of the bilateral

inner labia minora) was unnecessarily and

negligently performed by the defendant without

her informed consent. The entity which handles

administrative and billing functions for the

defendant’s practice group was also named as a

defendant, but settled prior to trial. The defendant

doctor maintained that he properly obtained the

8 SUMMARIES WITH TRIAL ANALYSIS

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