Monday, January 26, 2009

Chew on some interesting criminal law cases, last week of January 2009:

Criminal law -- Manslaughter -- Evidence -- Error to exclude evidence of victim's blood-alcohol level at time of affray in which defendant struck victim one time and victim fell where theory of defense was that victim was acting in an aggressive, threatening manner, under the influence of alcohol, and that defendant was only defending himself when he punched the victim a single time -- New trial required
Reported at 34 Fla. L. Weekly D223c

Criminal law -- Incest -- Defendant who had sexual intercourse with his 18-year-old adopted daughter and niece by his marriage to her biological mother's sister was erroneously convicted of incest because adopted daughter was not related to defendant by consanguinity -- Legal definition of incest is limited to persons who are related either by lineal consanguinity or collateral consanguinity -- It does not extend to persons who are related by affinity or adoption, but not biologically by blood
Reported at 34 Fla. L. Weekly D217a

Criminal law -- Murder -- Circumstantial evidence -- Trial court did not err in denying defendant's motion for judgment of acquittal where circumstantial evidence was sufficient for jury to exclude every reasonable hypothesis except for that of guilt -- No merit to defendant's claim that court's finding in penalty phase of trial that state failed to prove heinous, atrocious, or cruel aggravator applied to issue of whether evidence was sufficient to rebut defendant's hypothesis of innocence that someone else killed victim -- Penalty phase proceedings are distinct from guilt phase of murder trial, and court's findings regarding aggravators in penalty phase are not intended to override jury's verdict in guilt phase
Reported at 34 Fla. L. Weekly D213a

Criminal law -- Possession of cocaine, marijuana, and paraphernalia -- Search and seizure -- Vehicle stop -- Error to stop vehicle on ground that trailer hitch partially blocked tag and officers could not read letters on tag from distance of thirty to fifty feet -- Properly attached trailer hitch is not “other obscuring matter” for purposes of statute requiring that identifying information on plate be clear and distinct and free from defacement, mutilation, grease, and “other obscuring matter”
Reported at 34 Fla. L. Weekly D220a

Criminal law -- Habeas corpus -- State court reasonably applied Supreme Court precedent to facts of case in rejecting claim that certain jury instructions on accomplice liability used at petitioner's trial on murder and related charges were ambiguous and were likely misinterpreted by jury to relieve state of burden of proving every element of crime beyond a reasonable doubt -- Circuit court erred in granting habeas relief where state-court decision did not result in “unreasonable application of . . . clearly established Federal law”
Reported at 21 Fla. L. Weekly Fed. S602a

Criminal law -- Conspiracy to distribute cocaine base and powder cocaine -- Sentencing -- Federal guidelines -- Offense level -- Quantity of drugs -- Circuit court of appeals' order requiring petitioners' resentencing based on the district courts' categorical rejection of the 100:1 crack-to-powder cocaine ratio and substitution of its own 20:1 ratio conflicts with Kimbrough v. United States, which recognized district courts' authority to vary from the crack guidelines based solely on a policy disagreement, and not simply on individualized determination that guidelines yield excessive sentence in a particular case
Reported at 21 Fla. L. Weekly Fed. S596a

Civil rights -- Search and seizure -- Qualified immunity -- Under two-step procedure for resolving government officials' qualified immunity claims mandated by Court in Saucier v. Katz, court must decide whether facts alleged or shown by plaintiff make out violation of constitutional right and, if so, whether that right was “clearly established” at time of defendant's alleged misconduct -- Saucier procedure, although often beneficial, it should no longer be regarded as mandatory in all cases -- Law enforcement officers in this case, who conducted warrantless search of plaintiff's house incident to arrest for sale of methamphetamine to an undercover informant whom he had voluntarily admitted to the premises, were entitled to qualified immunity on ground that it was not clearly established at the time of the search that their conduct was unconstitutional -- Officers relied on “consent-once-removed” doctrine, which permitted warrantless police entry into home when consent to enter had already been granted to undercover officer who observed contraband in plain view -- At time of entry, “consent-once-removed” doctrine had gained acceptance in lower courts and had been approved in some cases involving consensual entry by private citizens acting as informants, and officers were entitled to rely on those cases without facing personal liability for their actions even though their own federal circuit had not yet ruled on “consent-once-removed” entries
Reported at 21 Fla. L. Weekly Fed. S588a

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Sunday, January 18, 2009

Recent nursing home litigation and potential theories of liability in the oven

In Benjamin v. Tandem Healthcare, 11 No. 15 Andrews Nursing Home Litig. Rep. 1, Andrews Nursing Home Litigation Reporter January 16, 2009, the Florida Supreme Court held that nursing homes are not governed by the "right to know" amendment to the Florida Constitution. That amendment [Article X, Section 25 of the Florida Constitution or “Amendment 7”] allows patients access to records relating to medical mistakes by health care providers. The six participating Justices agreed that the definition of "health care facility" in Amendment 7 did not include nursing homes.The Supreme Court relied on a "long_standing distinction" in Florida law between health care providers and nursing homes, governed by different statutes.

MINN. CARE HOME IS SUED OVER RESIDENT'S DEHYDRATION DEATH, Cole v. GGNSC Stillwater Greeley, 11 No. 15 Andrews Nursing Home Litig. Rep. 2, Andrews Nursing Home Litigation Reporter January 16, 2009
A 71_year_old dementia patient died from severe dehydration suffered during a three_week stay at a Minnesota nursing home, according to a federal court lawsuit filed by his son. The staff at the Golden Center Living Greeley facility in Stillwater is alleged to have failed to ensure that Dean Cole received adequate food and liquids during his December 2006 stay, Cole's son Kevin says in the lawsuit. Cole was hospitalized Dec. 29, 2006, after nursing home staff members found him unresponsive.

A WOMAN'S SERIES OF PROBLEMS LINKED TO FALL AT MICH. HOME, Link v. IHS Acquisition, 11 No. 15 Andrews Nursing Home Litig. Rep. 3, Andrews Nursing Home Litigation Reporter January 16, 2009
A Michigan woman alleges in a federal court lawsuit that neglect by a nursing home's staff caused a fall in which she suffered a broken hip, setting off a chain reaction of debilitating health complications. Nancy Link says she fell at the Lynwood Manor Healthcare Center because the staff failed to take the necessary precautions to ensure her safety. She seeks to hold the facility liable for her broken hip and a myriad of health complications that cropped up during her recovery.

OREGON HOME FACES $2 MILLION SUIT OVER SEX ASSAULT BY RESIDENT, Fellows v. Healthcare at Foster Creek, 11 No. 15 Andrews Nursing Home Litig. Rep. 4, Andrews Nursing Home Litigation Reporter January 16, 2009
A Portland, Ore., nursing home has been hit with a $2 million lawsuit alleging it failed to take adequate steps to prevent the sexual assault of a 61_year_old dementia patient by another resident. Staff members at the Healthcare at Foster Creek facility found the alleged victim naked from the waist down in the room of fellow resident Marko Chandler March 31, 2008, according to the complaint. However, the employees did not document or report the incident to authorities or take any action to prevent it.

MASS. NURSES LOSE BID TO FORCE DEATH SUIT INTO ARBITRATION, Constantino v. Frechette, 11 No. 15 Andrews Nursing Home Litig. Rep. 5, Andrews Nursing Home Litigation Reporter January 16, 2009
A group of nurses sued for wrongful death in connection with the care given to a Massachusetts nursing home resident cannot enforce an arbitration agreement between the facility and the resident, a state appellate court has ruled. The court said the agreement expressly limited its reach to disputes between the patient and the nursing home and did not cover individual claims against the facility's employees. This would seem to be an attempt at an end run around the express language of agreements to arbitrate liability issues.

Criminal Conduct: VETERANS HOME EXEC PLEADS NOT GUILTY TO CLEAN_AIR LAW RAP, 11 No. 15 Andrews Nursing Home Litig. Rep. 7, Andrews Nursing Home Litigation Reporter January 16, 2009
In an interesting lawsuit brought under the Clean Air Act, the director of a state_run nursing facility for veterans in Massachusetts has pleaded not guilty to charges that he ordered the illegal removal of a wall containing asbestos insulation without the proper cleanup procedures. Paul Morin, 56, of Chicopee, Mass., the superintendent of the Soldiers' Home in Holyoke, endangered the facility's employees and violated the state's Clean Air Act, Mass. Gen. Laws ch. 111, 142A, Attorney General Martha Coakley said in a Jan. 8 statement.

GOVERNMENT CAN RE_DEPOSE WITNESS HEADED FOR IRAQ IN VET SUICIDE CASE, Lucey v. Nicholson, 11 No. 15 Andrews Nursing Home Litig. Rep. 8, Andrews Nursing Home Litigation Reporter January 16, 2009
A Massachusetts federal judge has granted the U.S. government's motion to re_ depose a Department of Veterans Affairs social worker who is scheduled to deploy to Iraq and may not be available to testify at the May 2009 trial involving an Iraq War veteran's suicide. U.S. Magistrate Judge Kenneth P. Neiman granted a second deposition of Jaime Perez, a key plaintiffs' witness in the malpractice and wrongful_death suit brought by the parents of Jeffrey Michael Lucey.

SUIT SOUNDS IN MED_MAL, NOT SIMPLE NEGLIGENCE, N.J. COURT SAYS, Davis v. St. Barnabas Med. Ctr., 11 No. 15 Andrews Nursing Home Litig. Rep. 9, Andrews Nursing Home Litigation Reporter January 16, 2009
A New Jersey woman's suit was rightfully dismissed for failure to comply with the state's affidavit_of_merit statute since the complaint, as pleaded, sounded in medical malpractice and not simple negligence, a New Jersey appeals court has ruled. Viola Davis sued St. Barnabas Medical Center for injuries she sustained after she was admitted to the hospital in May 2005, was given a number of medications, and later wandered out of her room in a "drug_induced state" and fell. This is an interesting case because suits like this have been brought in Florida and some courts have held that those plaintiffs alleged premises liability claims and could, thus, circumvent presuit notice requirements.

DISPUTED CAUSE OF DEATH PRECLUDES ARIZ. HOSPITAL'S DISMISSAL, Lacombe v. Bullhead City Hosp. Corp., 11 No. 15 Andrews Nursing Home Litig. Rep. 12, Andrews Nursing Home Litigation Reporter January 16, 2009
Finding that the evidence before the court was not "so one_sided that one party must prevail as a matter of law," an Arizona federal judge has denied a hospital's motion for summary judgment in a wrongful_death lawsuit. Bullhead City Hospital Corp., the operator of the Western Arizona Regional Medical Center, argued that evidence showed that the death of David Nichols was not the result of an adverse reaction to penicillin, as alleged by his estate, but rather an enlarged heart and subsequent heart condition.

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Thursday, January 15, 2009

Apparent agency, whose “holding out of agency” counts anyway, and apples vs. oranges

Florida law uses a three element test to determine if an apparent agency exists. “An apparent agency exists ‘only if each of the three elements are present: (a) representation by the purported principal; (b) a reliance on that representation by a third party; and (c) a change in position by the third party in reliance on the representation.’” Robbins v. Hess, 659 So. 2d 424, 427 (Fla. 1st DCA 1995), quoting Mobile Oil Corp. v. Bransford, 648 So. 2d 119, 121 (Fla. 1995).
As to the first element, apparent agency does not arise from the subjective understanding or wishful thinking of the person dealing with the supposed agent, or from the appearance created by the supposed agent. The apparent agency can only arise where the purported principal creates the appearance of an agency relationship. Spence Payne Masington v. Philip M. Gerson, 483 So. 2d 775 (Fla. 3d DCA 1986).
In Izquierdo v. Hialeah Hosp., Inc., 709 So. 2d 187 (Fla. 3d DCA 1998), plaintiff filed a wrongful death/medical malpractice action against Hialeah Hospital under a vicarious liability theory. Plaintiff claimed a defendant physician’s negligent care led to her son’s death, and that the hospital was liable under an apparent agency theory on the basis that she was led to believe the physician was a hospital employee. The Third District held that apparent authority could not be based on the plaintiff’s or even the physician’s subjective understanding of some apparent authority. Id. Only the purported principal’s actions could create the apparent authority necessary to create an apparent agency relationship. The court found that there was insufficient evidence that the hospital engaged in any activities to create the appearance of an agency relationship. If the principal, for example, the hospital, does not hold the supposed agent out and its agent, therefore, a Summary Judgment on the apparent agency aspect of a Plaintiffs claim is correct, as a matter of law, unless Plaintiffs cannot present evidence to satisfy the first element which must be established to support an apparent agency theory of liability. Dalia v. Electronic Realty, Inc., 629 So.2d 1075 (Fla. 3d DCA 1994); Tarr v. Cooper, 708 So.2d 614 (Fla. 3d DCA 1998).
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