Litigation Results

December 20, 2019, PIP, invalid pre-suit demand, failure to comply with conditions precedent, Summary Judgment

Style: Spine Correction f/k/a Alignlife a/a/o Griselda Rubio v. State Farm

Venue: County Court, Polk County, Florida

On May 13, 2018, State Farm’s insured, Griselda Rubio, was a restrained passenger in a motor vehicle involved in a rear end collision on Interstate 4. The insured sought medical treatment with the Plaintiff provider, Alignlife, between June 8, 2018 and October 29, 2018.

Upon receipt of Alignlife’s billing, State Farm issued payments for the services, totaling $15,000, in accordance with the Fla. Stat. 627.736, the policy language, the Medicare Part B fee schedules, and the Worker’s Compensation fee schedules until all benefits became exhausted.

On January 14, 2019, the Plaintiff medical provider served State Farm with a pre-suit demand pursuant to Florida Statute 627.736(10) alleging State Farm owed an additional $3,810.39 in PIP benefits for dates of service of June 8, 2018 through October 29, 2018. Fla. Stat. 627.736(10) requires that the provider serve a pre-suit demand at least thirty (30) days prior to the initiation of litigation. The demand is required to include a copy of the assignment of benefits and an itemized statement specifying each exact amount, the date of treatment, and the type of benefit claimed to be due.

Attached to the correspondence was a copy of the Plaintiff’s billing ledger, detailing all dates of service, the total billed by Plaintiff, and the total paid by State Farm. This ledger identified a total patient balance due and owing of $5,351.07. The ledger contained a column entitled “Insurance Responsibility” which identified a total insurance balance due and owing of negative $38.89. Thus, the amount alleged to be due and owing in the pre-suit demand was contradicted by the Plaintiff’s own billing ledger.

Following the filing of suit by Plaintiff, Defendant proceeded with a Motion for Summary Judgment for Failure to Comply with Conditions Precedent. Defendant argued that the Court must apply a strict compliance standard to the requirements of Fla. Stat. 627.736(10), the internal inconsistency between the demanded amount and the account balance fails to strictly comply with the requirements of the statute, and that Summary Judgment, not abatement, is the appropriate remedy.

Plaintiff argued for substantial compliance with the statutory requirements and took the position that a provider cannot know the exact amount of benefits due and owing and that it is the responsibility of the carrier to determine the amount due.

In the first ruling on strict vs. substantial compliance with Fla. Stat. 627.736(10) in Polk County, the Court held that the appropriate standard is strict compliance, the Plaintiff bears the responsibility of determining the amount due and owing when sending a pre-suit demand, and that Plaintiff’s demand failed to strictly comply with that responsibility due to the internal inconsistencies between the demand and the billing ledger.

The Court granted final summary judgment in favor of State Farm with no damages being awarded to Plaintiff.

March 22, 2019, Low back injury, radiofrequency ablations

Style: Jamie Ambrose v. James J. Ferro & State Farm Mutual Automobile Insurance Company

Venue: Circuit Court, Pasco County, Florida.

Plaintiff, Jamie Ambrose, had been a restrained driver in a vehicle stopped at a red light at the
intersection of U.S. 19 and Moog Road, New Port Richey, Pasco County, Florida. Defendant,
James Ferro, had been the driver of a vehicle that failed to stop, colliding with the rear of
Plaintiff’s vehicle.

Plaintiff alleged she sustained injury to her lumbar spine and underwent radio frequency ablation
with medical expenses totalling over $50,000. Plaintiff sought damages for future medical
expenses as well as past and future pain and suffering in excess of $1,000,000.

Experts testifying for Plaintiff included: Lee Ann Brown, DO, Jay Parekh, DO

Plaintiff denied pre-existing condition.

Experts testifying for Defendant included: Michael Foley, MD, Ananda Som, MD, Peter
Candelora, MD

Defendant argued that Plaintiff presented with pre-existing conditions.

The jury returned a verdict limited to the Emergency Department medical bill in the amount of
$7,442.46, finding no permanent injury had been sustained.

After collateral source offsets, net verdict was zero.

Last modified: April 4, 2019

November 1, 2018 CATASTROPHIC INJURY, VEGETATIVE STATE

Style: Earl B. Mason Sr. as Plenary Guardian of the ward, Earl B. Mason Jr. v. Robert Hines as Personal Representative of the Estate of Nyla Whiting

Venue: Circuit Court , Hillsborough County , Florida

Defendant Nyla Whiting, age 70, had been the driver of a 2002 Toyota Corolla traveling southbound on 78^th St., Tampa, Florida. Plaintiff Earl B Mason Jr. had been a pedestrian who walked into the path of traffic as he attempted to cross 78^th St eastbound, approximately 70 ft. from an available pedestrian crosswalk.

Ms. Whiting was unable to avoid striking Mr. Mason making impact between 18 and 22 mph.

Mr. Mason suffered catastrophic injuries and institutionalized in a vegetative state since the accident.

Past medical expenses was $546,742.

Plaintiff sought future medical expense and cost of life care in the amount of $5,514,679 in addition to unspecified amount for pain and suffering.

Experts on behalf of Plaintiff: Robert Martinez MD, Gerri Pennachio, vocational rehab, Brenda Mulder MBA, Steven Koontz PE

Experts on behalf of Defendant: Steven Bifulco MD, Cynthia Stephens Ph D, Charles O Funk Ph D, PE

The matter proceeded to arbitration October 29 2018 with arbitration award entered November 1 2018 in favor of Defendant.

No damages were awarded.

November 16, 2017 POST SURGERY LUMBER SPINE

Style: Gerardo Martinez v. Ruebin A. Martin

Venue: Circuit Court, Hillsborough County, Florida

Plaintiff Gerardo Martinez had been a restrained rear seat passenger in a vehicle proceeding through an intersection at 26th street and Lake Avenue, Tampa, Hillsborough County Florida. Defendant Ruebin Marin had been the driver of a vehicle which ran a stop sign colliding with the right rear passenger side of plaintiff vehicle.

Plaintiff alleged the accident caused injury to his lumber spine, L3.4 herniation/extrusion with compression of the left L4 nerve root and necessitation of laminectomy July 18, 2016.

Past medical expense was $154,111.

Plaintiff sought damages for future medical expenses as well as past and future pain and suffering.

Experts testifying for plaintiff included: David Rosenbach, MD and James Ronzo, MD.

Defendant argued that injuries were the result of a subsequent intervening accident.

Experts testifying for defendant included: Kenneth Hammon, DC, Jack Maniscalco, MD and Michael Foley, MD.

Defendant admitted to liability.

Defendant’s motions for directed verdict as to future medical expenses and future pain and suffering were granted during trial.

The jury returned its verdict November 16, 2017 finding that plaintiff’s injuries and resulting surgery were not causally related to defendant’s actions.

No damages were awarded as a result.

June 30, 2017 SURGERY LUMBAR SPINE

Style: Abbadessa v. State Farm Mutual Automobile Insurance Company

Venue: Circuit Court, Hillsborough County, Florida

Plaintiff’s vehicle was rear-ended by an underinsured driver while coming to or at a stop in Brooksville, Florida, on March 17, 2014. Plaintiff alleged she sustained injury to her lumbar spine and underwent laminectomy, discectomy, and fusion on April 16, 2015 with medical expenses totaling over $295,000. After securing a directed verdict on part of Plaintiff’s complaint, the jury returned a verdict limited to past medical expenses in the amount of $20,000, finding no permanent injury had been sustained.

After collateral source offsets, net verdict was zero.

June 15, 2017 WRONGFUL DEATH / MOTORCYCLE

Style: Estate of Richard Davies Briggs v. Robinson, et. al.

Venue: Circuit Court, Hillsborough County, Florida

This case involved a motorcycle versus motor vehicle collision which occurred on May 5, 2012 in Tampa, Hillsborough County, Florida. The decedent sustained an oral laceration requiring nine sutures to close as a result of the impact. Following the accident, the decedent followed a course of conservative care.

On July 23, 2012, decedent experienced symptoms necessitating his presentation to Florida Hospital Emergency Room and was admitted with acute sepsis. On July 31, 2012, the decedent expired with final diagnosis related to complications from acute sepsis/MRSA infection.

Plaintiff contended the MRSA bacteria entered the decedent’s body and blood stream through the oral laceration sustained in the motor vehicle accident of May 5, 2012 and retained Michael David, MD, PhD as an infectious disease expert.

Dr. David provided an expert opinion that the most likely portal of entry of the MRSA bacteria into the decedent’s bloodstream was the oral laceration sustained in the motor vehicle accident. On cross examination, the limited information relied upon by the expert in reaching his opinion was established.

Ramey and Kampf, P.A., on behalf of the Defendant, argued that other potential portals of entry existed which could not be ruled out to include the diagnosis of MRSA lesion to right leg November 23, 2011, the diagnosis of a MRSA lesion to left earlobe April 30, 2010, previously undisclosed MRSA abscess identified by one of the decedent’s survivors on the witness stand occurring approximately two years prior to the date of loss, right eye cataract extraction November 30, 2011, left eye cataract extraction December 14, 2011, and daily insulin injections.

No witnesses were called on behalf of the defense.

After four days of trial, the jury returned a verdict for the defense awarding zero damages.

August 5, 2016 MULTIPLE PLAINTIFFS/SURGICAL RECOMMENDATIONS

Style: Jacqueline Debose & Joseph Debose v. Charles Sallee

Venue: Circuit Court, Pinellas County, Florida

Plaintiffs’ vehicle was rear-ended while at a stop at the intersection of Tyrone Boulevard and Park Street, St. Petersburg, Pinellas County, Florida resulting in minimal property damage. Both Plaintiffs presented with a complex medical history primarily related to pre-existing conditions.

With regard to Jacqueline Debose, it was claimed she injured her cervical spine and aggravated preexisting lumbar spine conditions. With regard to Joseph Debose, it was claimed he injured his right shoulder and aggravated pre-existing cervical and lumbar spine condition.

Past medical expenses for Plaintiffs was in excess of $50,000.00, respectively.

Plaintiffs sought recovery of past medical expenses as well as future medical expenses to include $150,000 in relation to estimated right shoulder surgical costs for Joseph Debose.

The claims were evaluated and presented to the jury suggesting damages and verdicts in the amount of $21,500 and $16,500 respectively.

The jury returned the verdict in favor of Jacqueline Debose in the amount of $21,500 and Joseph Debose in the amount of $16,500 with no award for future damages as to either Plaintiff.

September 25, 2015 SHOULDER SURGERY/PUNITIVE DAMAGES

Style: Kishada Benjamin v. Gladwin & Valiance

Venue: Circuit Court, Hillsborough County, Florida

Plaintiff was the front seat passenger of a vehicle struck in the rear on May 5, 2012, in Tampa, Hillsborough County, Florida. Plaintiff alleged injury to her right shoulder including a rotator cuff tear necessitating surgery on July 11, 2013.

In addition to compensatory damages, Plaintiff alleged punitive damages in light of an alleged statement made by Defendant at the scene of the accident to emergency services personnel that he had consumed a six-pack of beer three hours prior to the accident.

Ramey & Kampf, P.A., on behalf of the defense, argued that Plaintiffs credibility was at issue due to inconsistent facts concerning mechanism of injury and the history provided to her treating physicians, as well as undisclosed pre and post-accident evidence would account for the injuries at issue.

In addition, the defense established that there was no evidence of impairment of the Defendant’s normal faculties through testimony of investigating law enforcement officers and emergency medical personnel.

After four days of trial, the jury returned a zero verdict.