DEFENDANT'S VERDICT - PREMISES LIABILITY - FALLING OBJECT - PLAINTIFF STRUCK BY HEAVY TRAILER HITCH THAT FALLS FROM HIGH SHELF IN DEFENDANT STORE, STRIKING PLAINTIFF AND CAUSING FALL - RIGHT KNEE MEDIAL MENISCUS TEAR WHICH REQUIRES SURGERY- INFECTION FROM SURGERY - LOWER LEG AMPUTATION - DEFENDANT DENIES NEGLIGENCE AND QUESTIONS CAUSATION OF PLAINTIFF'S UNDERLYING INJURY.

• Pages: 12-14

mal pain levels; failed to timely communicate to a

physician the plaintiff’s neurological deficits including in-

ability to move his legs, inability to stand with maximum

assistance, and urinary retention; failing to perform a

STAT MRI as ordered; and failing to invoke the chain of

command and question the administration of Heparin

5,000 units subcutaneously on postoperative day one.

The plaintiff asserted that the defendant’s nursing staff

fell below the standard of care when they failed to notify

the plaintiff’s surgeon and advocate for bedside assess-

ment when the plaintiff could not lift his legs postopera-

tively; failed to report urinary retention; and failed to

report the significance of the plaintiff’s not being able to

stand with assistance by the occupational and physical

therapists on the day after the surgery. The defendants’

deviation from the standard of care caused permanent

injury to the plaintiff. The plaintiff presented testimony

from an expert in nursing that the defendant’s nursing

staff failed to inform the plaintiff’s treating surgeon and

failed to advocate for the plaintiff in a timely fashion

based on their observations of his postoperative

condition.

As a result of the defendants’ delay in the diagnosis and

treatment of the plaintiff’s postoperative epidural

hematoma, the plaintiff suffered lower extremity injury,

with permanent weakness, along with loss of bowel and

bladder function. The defendant argued that, per

Insinga v. LaBella, 543 So. 2d 209 (Fla. 1989), a hospital

is not liable for the negligence of independent contrac-

tor physicians to whom it merely grants privileges.

The jury found no negligence by the hospital or its staff

and returned a verdict in favor of the defendant.

REFERENCE

Halperin vs. JFK Medical Center Limited Partnership, et

al. Case no. 2019CA000332; Judge James Nutt, 04-20-

22.

Attorney for plaintiff: Kevin Smith of Lytal, Reiter,

Smith, Ivey & Fronrath in West Palm Beach, FL.

Attorney for defendant: Manuel R. Comras of Biling,

Cochran, Lyles, Mauro & Ramsey, P.A. in West Palm

Beach, FL.

COMMENTARY

The plaintiff filed a post-trial motion for new trial arguing that the

jury returned a verdict form in which a finding of negligence

against the defendant hospital and the non-party defendant physi-

cian was returned along with a finding of 100% negligence against

the defendant physician and money damages being awarded. The

verdict was returned to the jury to be readdressed. The jury subse-

quently came back with a question as to whether responsibility for

the hospital was for the physician or whether they were separate.

This question was answered. The jury then crossed out all damages

awarded and the finding of negligence against the defendant hos-

pital and returned a defense verdict.

The plaintiff asserted that the question should not have been an-

swered as it immediately resulted in the jury finding no negligence

on the part of a party defendant, where negligence had been

found. It was the plaintiff’s position that the court committed error

in the handling of the initial verdict and subsequent questions and

that this action warranted a new trial. The defendant opposed the

plaintiff’s motion, arguing that the court’s handling of the inconsis-

tent verdict was an appropriate exercise of the court’s discretion.

The jury initially returned a verdict indicating a finding of negli-

gence on the part of both the defendant hospital and the Fabre de-

fendant physician, but assigned 100% responsibility for damages

to the physician and 0% to the hospital. The court correctly in-

structed the jury that the verdict was inconsistent and sent them

back to reconsider the verdict. Shortly thereafter, the jury returned

with the following question: In reference to question #1, is the

doctor included with [the hospital] or is our decision only to be

made in reference to [the hospital]? The court discussed the matter

with all counsel and considered instructing the jury that the defen-

dant hospital was not responsible for the negligence, if any, of the

doctor. However, plaintiff’s counsel objected to this approach and

requested that the questions be answered with a simple “no” or

“yes.” As a result, the court correctly answered “no” to the first part

of the question and “yes” to the second part of the jury’s question.

Plaintiff’s counsel did not object to the response the court ulti-

mately gave the jury and, indeed, suggested this response. The de-

fendant argued that, by doing so, the plaintiff waived post-trial

review per Romero v. State, 169 So. 3d 1261, 1262-63 (Fla. 5th

DCA 2015) finding the error unpreserved where defense counsel

made a suggestion but then assented to the trial court’s proposed

answers to the jury’s questions; and Tate v. State, 136 So. 3d 624,

631 (Fla. 2d DCA 2013) stating that the appellant did not preserve

his challenge to the trial court’s answer to the jury’s question

where he did not object and actually agreed to the court’s re-

sponse.

The defendant maintained that plaintiff’s counsel agreed to the

jury instructions which appropriately instructed the jurors regard-

ing the law in the case. The court was entitled to assume that the

jury’s findings took into account the jury instructions and thus the

court should deny the plaintiff’s motion and enter final judgment

in favor of the defendant in accordance with the verdict.

DEFENDANT’S VERDICT – PREMISES LIABILITY – FALLING OBJECT – PLAINTIFF STRUCK

BY HEAVY TRAILER HITCH THAT FALLS FROM HIGH SHELF IN DEFENDANT STORE,

STRIKING PLAINTIFF AND CAUSING FALL – RIGHT KNEE MEDIAL MENISCUS TEAR

WHICH REQUIRES SURGERY– INFECTION FROM SURGERY – LOWER LEG

AMPUTATION – DEFENDANT DENIES NEGLIGENCE AND QUESTIONS CAUSATION OF

PLAINTIFF’S UNDERLYING INJURY.

Miami-Dade County, FL

In this premises liability case, the plaintiff asserted

that the defendant store negligently placed a

heavy object in such a way that it fell and caused

the plaintiff significant, permanent injury. The

defendant denied negligence and contested the

plaintiff’s damages.

12 SUMMARIES WITH TRIAL ANALYSIS

Volume 32, Issue 9, September 2022 Subscribe Now