Florida Torts Extras

Question 1

What is the medical malpractice procedural framework in Florida?

Answer 1

Florida has adopted a detailed procedural framework for bringin medical malpractice claims. (Still negligence, so go into greater duty of DR and even greater duty of specialist).

1. Claimant must investigate the grounds for the claim and obtain a written opinion by a medical expret verifying that reasonable grounds for a claim exist.
2. At least 90 days before filing suit, a claimant must notify the prospective defendant by certified mail.
3. During the 90 day period after notice, the claimant may not file suit and the SOL is tolled as to all potential defendants.
4. During 90 day period after notice, a Defendant’s insurer must evaluate the claim and deliver to the claimant either (a) a rejection of the claim, (b) an offer to settle, or (c) an offer to admit liability and seek arbitration for damages.
5. The claimant must accept or reject an offer to admit liabilty within 50 days.
6. A C rejecting the offer has the greater of 60 days of the remaining period in the SOL in which to sue.
7. A C accepting an offer waives all other remedies and has 30 days in which to settle the amount of damages with the defendant before automatic binding arbitration occurs.

Question 2

Florida has abolished _____ liability in tort.

Answer 2

joint and several liability for causes of action accruing on or after April 26, 2006. So each defedant is liable for his or her portion only.

E.g. in case where product defect, but then doctor was negligent in surgery. The manufacturer and doctor are not jointly and severally liable. The manufacturer can separate out his/ her level of liability.

Question 3

T/F: Florida has abolished implied assumption of risk?

Answer 3

True.

Question 4

Because FL has abolished implied assumption of risk, traditional fact patterns that would involve assumption of risk are broken down into 2 categories through which a D can seek some protection:

Answer 4

1. When the D has only a limited duty to the plaintiff because of plaintiff’s knowledge of the risks, a court may protect the defendant simiply by holding that the D did not breach his limited duty of care OR
2. If the P has behaved unreasonably, the P is contributorily negligent and damages will be apportioned under the state’s comparative negligence statute.

Question 5

When products liability fact pattern, consider COA in:

Answer 5

1. negligence
2. strict liabilty
3. express warrant
4. misrepresentation

Question 6

In FL, express warranty does not require _____; however, implied warranties of merchantability and fitness do.

Answer 6

privity

(So if X got injured on Y’s boat due to a crappy rope and Y bought the roap from the Marina, X can sue the Marina under express warranty theory, but not implied warranties of fitness or merchantability).

Question 7

If negligence and someone dies –>

Answer 7

wrongful death

Question 8

FL uses ___ comparative negligence.

Answer 8

pure

(If I’m 10% liable for my own injuries, get 90% recovery. Even if I’m 70% liable, get 30% recovery).