Saturday, June 30, 2012

Health care developments, postconviction relief and espresso custard with chocolate ganache

Health care -- Patient Protection and Affordable Care Act is constitutional in part and unconstitutional in part -- Jurisdiction -- Anti-Injunction Act does not bar suit, which seeks, in part, to restrain the collection of shared responsibility payment from those who do not comply with the individual mandate, as Affordable Care Act describes this payment as a “penalty,” not a “tax” -- Although that label cannot control whether payment is a tax for purposes of Constitution, it does determine application of Anti-Injunction Act -- Individual mandate, which requires most individuals to maintain “minimum essential” health insurance coverage and provides for a “shared responsibility payment” by persons who are not exempt and who do not receive insurance through employer or government program, cannot be upheld as exercise of Congress's power under Commerce Clause, which authorizes Congress to regulate interstate commerce, not to order individuals to engage in it -- However, it is reasonable to construe individual mandate as increasing taxes on those who have certain amount of income, but choose to go without health insurance, and such legislation is within Congress's power to tax -- Medicaid expansion portion of Act, violates Constitution by threatening existing Medicaid funding -- Congress has no authority to order states to regulate according to its instructions -- Although Congress may offer grants and require states to comply with accompanying conditions if states elect to accept offer, Act requires that states either accept a basic change in nature of Medicaid or risk losing all Medicaid funding -- Remedy for this provision is to preclude federal government from imposing such a sanction, and that remedy does not require striking down other portions of ActNATIONAL FEDERATION OF INDEPENDENT BUSINESS, ET AL., Petitioners v. KATHLEEN SEBELIUS, SECRETARY OF HEALTH AND HUMAN SERVICES, et al. U.S. Supreme Court.

Insurance -- Homeowners -- Water damage -- Trial court erred in awarding insured amount in excess of one million dollars for water damage sustained following a water pipe rupture where policy endorsement limited coverage for water damage to $25,000CERTAIN INTERESTED UNDERWRITERS AT LLOYD'S LONDON SUBSCRIBING TO POLICY NO. 328-2037, Appellant, vs. PITU, INC., A FOREIGN CORPORATION, Appellee. 3rd District.

Torts -- Medical malpractice -- Failure to diagnose and treat cervical cord compression, a condition which eventually caused patient to suffer quadriplegia -- No abuse of discretion in refusing to strike defendant's responsive pleadings for failure to comply with presuit requirements -- Argument -- Causation -- No error in refusing to grant mistral because of several allegedly improper comments by defense counsel in closing argument -- Counsel for defendant, the neurologist who initially treated patient, did not make impermissible burden-shifting argument on issue of negligence of neurosurgeon with whom defendant consulted by arguing that plaintiffs failed to present testimony from any neurosurgeon that he would have done anything differently -- Instead, counsel appeared to argue that plaintiffs failed to present evidence of causation in light of consulting neurosurgeon's testimony that if defendant had ordered a cervical MRI earlier and the radiographic findings were identical to those seen in later films, neurosurgeon still would not have conducted cervical decompression surgery at that time because neurosurgeon's examination of patient did not find any upper extremity dysfunction -- Jury instructions -- Trial court properly denied instruction regarding liability of initial and subsequent tortfeasors -- Although record evidence arguably supported theory that defendant- neurologist and settling codefendant-neurosurgeon were joint tortfeasors whose negligence united in causing single injury to plaintiff, it did not support conclusion that the two were “initial and subsequent” tortfeasors -- Attorney's fees -- Claim that trial court erred in entering final fee judgment jointly and severally against both patient and wife, whose sole claim was for loss of consortium, was not preserved for appeal where there is no indication in record that plaintiffs raised issue before the trial court -- Final judgment in favor of defendant and final judgment on attorney's fees affirmedRUBY SAUNDERS, individually and as Personal Representative of the Estate of Walter Saunders, Appellant, v. WILLIS DICKENS, M.D., Appellee. 4th District.

Wrongful death -- Medical malpractice -- Releases -- Action against medical providers for malpractice in treatment of child for condition caused by ingestion of prescription drugs which had allegedly been negligently formulated and dispensed by pharmacist and pharmacy -- Trial court erred in granting medical providers' motions for summary judgment based on wording of releases executed by pharmacist and pharmacy in connection with settlement of claims against them where releases, read as a whole, “expressly reserved” right to pursue causes of action against medical providers resulting from their negligenceMICHELLE VANALSTINE and MATTHEW VANALSTINE, as Co-Personal Representatives of the Estate of CHARLES VANALSTINE, Appellants, v. PALMS WEST HOSPITAL, L.P., ALBERTO MARANTE, M.D., SUDHIRA KULATUNGA, M.D., and FLORIDA PEDIATRIC CRITICAL CARE, P.A., Appellees. 4th District.

Criminal law -- Post conviction relief -- No merit to claim that trial court could not impose upward departure sentence on different grounds after habitual offender sentence was stricken -- Substitute judge who conducted resentencing complied with applicable procedural ruleVICTORIO HUIPIO, Appellant, v. STATE OF FLORIDA, Appellee. 4th District.

Criminal law -- Post conviction relief -- Trial court erred in denying defendant's petition for post conviction relief where defendant filed properly sworn petition within time afforded by appellate court when it reversed trial court's order denying petition and remanded for trial court to dismiss petition with leave to re-file legally sufficient motionCURTIS DEWAYNE ANDERSON, Appellant, vs. THE STATE OF FLORIDA, Appellee. 3rd District.

Criminal law -- Post conviction relief -- Trial court erred in summarily denying defendant's claims where trial court denied all claims without leave to amend and without stating a basis for the denial -- Although trial court is not precluded from simply adopting and incorporating state's response when state has provided record documents conclusively refuting claims, the order in this case did not expressly adopt and incorporate state's response -- Appellate court cannot conclude that trial court implicitly adopted state's response where response specifically stated that one of defendant's claims should be dismissed as facially insufficient with leave to amend, yet court's order summarily denied all claimsJAMES ROBERTS, a/k/a JAMES LEWIS ROBERTS, Appellant, v. STATE OF FLORIDA, Appellee. 2nd District.

Criminal law -- Post conviction relief -- Timeliness of motion -- Two-year window for filing rule 3.850 commenced on date judgment and sentence became final after appellate court remanded case for resentencing -- Remand for further proceedingsEDUARDO MOLINA BRACERO, Appellant, v. STATE OF FLORIDA, Appellee. 2nd District.

Criminal law -- Sentencing -- Correction -- Defendant's thirty-year sentence for attempted second-degree murder is illegal where it exceeds both the statutory maximum sentence and lowest permissible sentence on defendant's scoresheet -- Although defendant agreed to the sentence in negotiated plea agreement, defendant cannot plead to an illegal sentenceANTOINE SMITH, Appellant, v. STATE OF FLORIDA, Appellee. 1st District.

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