Verdict for the Defense

As a trial recap, the plaintiff, Danais Santana, asserted that she has $17,000 in medical bills as a result of an October 2009 accident. The Plaintiff filed, years ago, and before any of these people were involved, a proposal for settlement for $4,250. Therefore, if this plaintiff received a verdict totaling roughly $5,500, our insured would be exposed to approximately $200,000 in attorneys’ fees.

The Plaintiff presented her own testimony at trial, which went very poorly, as this plaintiff was involved in three prior accidents. The plaintiffs then just simply read the previous testimony of Dr. Robert Martinez, our expert. The plaintiffs then called Dr. Freed, Chiropractor who had seen the plaintiff after this motor vehicle accident. The cross examination of Dr. Freed went  well,  Dr. Freed had to admit that he didn’t have knowledge of the plaintiff’s three previous accidents, or the extent of the injuries that she sustained in these accidents. Despite this, he did not change his opinion.

 To finish the case we played the deposition of Dr. Ravipati, treating physician, whose testimony was confusing, but in any event, established that because of the inaccurate medical history the plaintiff had given him, he could not determine within a reasonable degree of medical probability that there was any injury caused by the October 2009 accident.

 The jury determined there was no causation of any damage as a result of the October 2009 accident, and came back with a defense verdict in approximately 20 minutes.

 In my opinion, any time that we can get a plaintiff or a claimant lying, it is devastating to their case.

As reported by Bloomberg, Hulk Hogan sues Laser Spine Institute

Hulk Hogan Wrestles With Laser Spine Center in Lawsuit

By David Armstrong - Jan 14, 2013

Professional wrestler Hulk Hogan claims in a medical malpractice lawsuit that a Florida-based surgery company that advertises on the Internet and television persuaded him to undergo a half-dozen “unnecessary and ineffective” spinal operations, worsening his back problems.

Hogan, whose real name is Terry G. Bollea, seeks $50 million for lost work opportunities during a 19-month period when he was a patient at Laser Spine Institute, according to the lawsuit filed today in Florida state court in Clearwater.

Professional Wrestler Hulk Hogan. Photographer: Paul Kane/Getty Images

The for-profit institute, based in Tampa, bills itself as one of the largest outpatient spine centers in the world, once touted Hogan as a success story in its marketing materials.

Hogan alleges his name was used without his permission and that in March 2011, his lawyer ordered the spine center to stop using his likeness. He said a quote attributed to him in a marketing brochure came from a photo he signed as a personal favor to a Laser Spine employee on the day of his first surgery.

In an e-mailed statement, the institute declined to discuss Hogan’s allegations. Laser Spine “cares about its patients and their outcomes, and is proud to have helped thousands of patients achieve a better quality of life,” the company said in the statement.

The wrestler said in his lawsuit that he became aware that the surgeries he underwent at Laser Spine may have been unnecessary or performed negligently after reading a 2011 Bloomberg News report that detailed complaints that the care offered at the center is expensive and ineffective.

High-Volume Centers

The Laser Spine Institute is one of a growing number of high-volume, doctor-owned surgery centers that recruit patients through sophisticated direct-marketing campaigns on Google Inc.’s search site and others. More recently, the center began a national television advertising campaign with spots on cable news operator CNN. It also conducts seminars in hotel meeting rooms across the country.

The center promises patients a less-invasive, technologically advanced option to major back surgery. It has to include outpatient facilities in Philadelphia; Scottsdale, Arizona, and Oklahoma City. Laser Spine’s website says it performs more than 400 surgeries per month and employs 450 people.

Hogan alleges he was unaware that the institute doctor who urged him to have surgery there also had a substantial ownership interest in the center. He said his health insurer was billed “multiple six figure sums” for the procedures.

Bloomberg reported the for-profit center generated a 34.3 percent profit margin from 2006 through 2009.

Stopped By

The wrestler was scheduled to have a more traditional back surgery — known as anterior inter-body fusion — at a local hospital when a friend told him he should consider the Laser Spine Institute, according to the lawsuit. The founder of the institute, James St. Louis, was a neighbor of Hogan’s on a street of multimillion-dollar homes in Belleair, Florida, near St. Petersburg.

Hogan says he stopped in at the Laser Spine Institute without an appointment and met with St. Louis. He said the doctor talked him out of getting surgery at the hospital and instead persuaded him to undergo less invasive measures at the outpatient center.

His complaint echoes the experience of several other patients interviewed by Bloomberg News as well as allegations made in more than a dozen other malpractice complaints against the facility or its doctors.

Short-Term Relief

Hogan says he underwent six procedures over the next 19 months, getting short-term relief of two to three weeks after each one. The temporary alleviation of symptoms was the result of doctors there using a laser to burn nerves that eventually regenerate, he says in the complaint.

He claims in the lawsuit that the procedures performed at Laser Spine Institute are of limited benefit and unable to correct his back problems, including scoliosis, or the abnormal curving of the spine; spondylolisthesis in which vertebrae slip out of position; and spinal stenosis, a condition in which the spinal column narrows.

Laser Spine’s marketing campaign is intended to “scare” patients away from more traditional treatments while failing to tell them that its procedures only temporarily treat symptoms, Hogan alleges in his complaint.

After his treatment at Laser Spine failed, Hogan eventually underwent the traditional fusion surgery performed by doctors at the University of South Florida. His lawsuit says he was able to return to his professional activities three months after the December 2010 fusion surgery.

The case is Terry G. Bollea v. Laser Spine Institute LLC, 13-389CI021, Circuit Court of Pinellas County (Clearwater, Florida).

 

Offers and demands MUST SPECIFICALLY BE FOLLOWED in the insurance/bodily injury world

In Lunas v. Cooperativa, 37 Fla. L. Weekly D2568, 2nd DCA, November 2, 2012, the Second District Court of appeal reversed the trial court’s order granting a motion to enforce settlement between an insurer and insured.  In this sinkhole case, the insured demanded to settle a claim requesting two checks: one payable to the insured and mortgagee and the other to the insured, insured’s attorney and public adjuster.  The carrier responded with one check, but complied with the remainder of the demand. Judge Casanueva, writing for the Second DCA determined simply their was no meeting of the minds as two checks were not written and reversed the trial’s order.
Practice Tip:  Review each and every part of a demand letter. Number the conditions to settle and completely mirror the requests.  If not you will be facing a potential bad faith action down the road.

Motion to Dismiss for Fraud Decision Upheld!

Congratulations to managing partner Matthew Scarborough on his recent victory in Robert Allen Perrine v. Robert Eugene Henderson and Swell Construction.

On appeal, Plaintiff Robert Allen Perrine sought to prove the trial court erred in issuing an Order of Dismissal in favor of Robert Eugene Henderson and Swell Construction. Mr. Perrine alleged that the trial court abused its discretion in dismissing his complaint for fraud on the court.

The Fifth District Court of Appeal affirmed the decision of the trial court, upholding the trial court’s finding of misrepresentations of medical history and current injuries on the part of Mr. Perrine; all core issues of the case. Trial courts possess an intrinsic authority to dismiss an action as sanction if the Plaintiff fraudulently misleads the court. The court should exercise this power “cautiously, sparingly and only on a clear showing of fraud”. Courts proceed with caution on this basis because the Florida Constitution guarantees court accessibility to any person to redress injury.

The Appellate Court utilized the applicable test for the determination to dismiss a case on the basis of fraud set forth by Cox v. Burke, 706 So. 2d 43, 46 (Fla. 5th DCA 1998). This test demands a high burden of proof in order to establish fraud upon the court stating:

The requisite fraud on the court occurs where it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party’s claim of defense.

Inconsistency, nondisclosure, poor recollection, dissemblance and even lying are insufficient misconduct to support a dismissal on fraud.

Scarborough, Hull and Miller would like to congratulate Mr. Scarborough for prevailing in meeting the complicated rigors of this test to establish fraud and subsequently have the case dismissed.

Trial Win!

SHM would like to congratulate Matthew Scarborough on his recent trial victory in Polk County, FL. Faced with clear liability, horrific property damage photos of the Plaintiff’s automobile and 180,000 in outstanding medical bills, the jury returned a verdict of $24,000.00. The Plaintiffs rejected proposals for settlement totaling $135,000 (the remaining policy limits of the insurance policy). Motions for attorneys fees and costs against both Plaintiffs are pending.

MOTION TO DISMISS FOR FRAUD GRANTED!!!!!!

Scarborough, Hull & Miller congratulates its managing partner, Matthew Scarborough on his recent victory. Mr. Scarborough filed an extensive initial Motion to Dismiss for Fraud which was denied. After additional discovery, the court entertained a renewed Motion to Dismiss for Fraud which was granted just two weeks before trial. The plaintiff was asking for medicals and lost wages totaling over two million dollars. The entire opinion by the trial judge is attached here. Should you have any questions about this opinion or Motions to Dismiss for Fraud, don’t hesitate to contact Matthew Scarborough at matt@shmlegal.com. Scarborough, Hull & Miller also has an extensive seminar on Fraud Defense, so should you need your entire staff to obtain CE credits and a better understanding of this defense, don’t hesitate to contact Liva Rivera at liva@shmlegal.com to schedule a seminar for your company.

View Order

Scarborough, Hull & Miller Opens Orlando Office

The law firm of Scarborough, Hull & Miller is pleased to announce the opening of an office in Orlando to better serve our clients in Central Florida.

The contact details for the Orlando office are:

37 N Orange Avenue, Suite 500
Orlando, Florida 32801
Phone: 407.926.4060

Scarborough, Hull & Miller provides insurance defense services throughout Florida, including bad faith, automotive liability, trucking and transportation, and property defense. For more details, please contact our Orlando office above or our main office in Tampa.