Florida Sexual Assault Case Filed by Woman in Tampa Mental Health Facility

In Florida, a patient who is sexually assaulted by a doctor or hospital employee is not required to sue the healthcare provider under traditional theories of medical malpractice, unlike a patient otherwise injured by a careless doctor, nurse, or other healthcare provider. A female patient, “Jane Doe,” recently sued St. Joseph’s Hospital in Tampa, Florida, claiming that she was sexually assaulted by a mental health technician employed by the hospital while she was an admitted patient in the hospital’s mental health care facility. The sexual assaults occurred in her room. She further claims that when she reported the incident to hospital officials, they tried to intimidate her and failed to investigate the allegation.¹ St. Joseph’s sought to have her case dismissed because she did not follow Florida’s complex pre-suit screening requirements as set forth in Statute 766. of Florida’s medical malpractice statutes. Thankfully, the trial court agreed with her and denied the Hospital’s motion for summary judgment. Of course, the hospital appealed.   In order to have the denial overturned, they have to prove three jurisdictional conditions: that the trial court judge departed from the essential requirements of the law, resulting in material injury for the remainder of the trial, that cannot be corrected on post-judgment appeal.² On appeal, in reviewing the trial court’s order, the appellate judges found that the issues of noncompliance with Florida’s medical malpractice are not the kind that can be remedied after a judgment as they are designed to avoid filing medical malpractice lawsuits in the first place. Here, St. Joseph’s argued in its appeal that the trial judge “departed from the essential requirements...

Crime on Cruise Ships: How To Avoid A Vacation Nightmare

According to the United States Coast Guard, approximately 200 overnight ocean-going cruise ships are currently circumnavigating the world, with an average of 2,000 passengers with a crew of 950. By next year, the number of passengers is expected to exceed 23,000,000–up from 12,000,000 in 2007.   However, the Coast Guard also believes that “passengers on cruise vessels have an inadequate appreciation of their potential vulnerability to crime . . . and need to understand their legal rights or to know whom to contact for help in the immediate aftermath of the crime.” The truth is that crime on cruise ships is a lot more common than one would think. That is one of the reasons why Congress enacted the Cruise Vessel Safety & Security Act of 2010 (H.R. 3660), which requires among other things that the Coast Guard publish cruise ship crime statistics on its website–but only for ships that embark or disembark from US Ports.   Cruises leaving from European, Asian, and other ports have no obligation to report criminal activity to the FBI or Coast Guard.   Furthermore, the reporting seems sporadic; so far in 2016 only one report has been published, and it shows, not surprisingly, that much of the “reported criminal activity” occurs aboard Carnival Cruise Ships.  The report indicates that there were a total of ten criminal incidents involving Carnival passenger-victims from January 1, 2016 to March 31, 2016, including one mysterious death, three assaults with serious physical body injuries, and seven sexual assaults. Royal Caribbean, the second largest cruise line in the world, reported one murder, two suspicious deaths, a crew member suffering a...

THE IMPACT OF THE IMPACT RULE–Emotional Distress Claims in Florida

Four Broward county children and their parents are suing an elementary school teacher, Blake Farrell Sinrod, and the Palm Beach County School Board, alleging that the children were sexually molested by Sinrod. Sinrod pled guilty to the charges of child abuse. The initial lawsuit was filed in 2006, but nearly five years later in 2011 the parents sought to amend the complaint by adding their own individual claims for the negligent infliction of emotional distress and loss of “filial consortium,” or the love and support of their children. Judge Jack Cox of the Palm Beach County Circuit Court dismissed the parents’ case, and the parents appealed to Florida’s 4th District Court of Appeal. Florida has one of the most complex and inconsistent laws in the country for claims of emotional distress. Confusing to not only lawyers in Florida for injured children but judges as well, it is called the “impact rule.” Generally speaking, under Florida law the legal threshold for asserting any claim for the negligent infliction of emotional distress is whether or not the claimant or plaintiff has suffered a “physical impact from an external source” or actually been touched in association with the claimed emotional injury. The emotional distress need not be caused by the “impact”; it simply must have occurred. One current exception to the impact rule that will survive a motion to dismiss is when the complaint of emotional distress is “manifested by physical injury” and the plaintiff actually witnessed or heard or arrived on the scene as the traumatizing event was occurring and that some manifested physical injury is evident “within a short time...

Woman Raped in Florida Adult Book Store Gets Second Chance

The case of a 27 year old Miami woman who was raped at the Pleasure Emporium in Miami Gardens, while working the midnight shift, is one of the more terrifying my recent memory as a Miami crime victim attorney.The store utilized cameras, both inside and outside, extensive lighting, a locked front door which required customers to be buzzed in, and a panic button. According to the court file, Jose McCray, armed with a pistol, ordered L.B. to give him all the store’s money and lie on the floor. He then raped her and left. L.B. hit the panic button and called 911 on her cellphone. Clearly, the security measures were not adequate to protect L.B. and she sued the store for negligent security. The store has previously had four armed robberies during the overnight shift, with the last one taking place only two months before L.B. was raped. L.B. claimed she had never seen Mr. McCray before, but a co-worker testified that he had been in the store three days before the attack asking for L.B. This became a crucial piece of evidence in the case, as experts testified that the rape was “victim targeted” and not a result of inadequate security. In proving and defending negligent security cases in Florida, both the victim and defendants utilize security experts to opine as to whether or not the store, mall, apartment, condo, and/or school provided adequate or reasonable security. They are permitted, assuming they have the qualifications, to testify and render opinions on security matters and procedures, but not on the assailants motives for choosing the victim as a target....

Why Is Florida The Nation’s Rape Capital?

The legal definition of “rape” in the United States has not changed for nearly 100 years. Since 1920, only forcible vaginal penetration by a man has been classified as rape. This excluded situations where victims were drugged or intoxicated or the alleged anal raping of boys by former Penn State University football coach, Jerry Sandusky. In 2011, the U.S. Justice Department requested that the F.B.I. form a committee comprised of local and state law enforcement agencies to expand the definition. As a lawyer who helps victims of sexual assault in Florida, I cannot believe it took this long. President Obama’s administration led the crusade to expand the definition to include forcible anal or oral penetration of a man or woman or the rape of a woman by another woman. Yet, they failed to include non-consensual sex forced upon a man by a woman. I personally handled a case in Florida where a female healthcare provider improperly touched a male patient’s genitalia in a nursing home. Florida’s criminal law refers to rape as sexual battery and defines it as oral, anal or vaginal penetration by a sexual organ or object. Florida Statute §794.011 1(h) clearly excludes any penetration done in the context of a medical procedure. I disagree with this exclusion as I have represented several women who have been sexually assaulted during medical procedures at South Florida hospitals. States are now required to report all rapes to the F.B.I. which maintains national statistical data in the Uniform Crime Reports. However, based upon the outdated and inconsistent definitions, many rapes go unreported to the F.B.I.’s uniform crime report. The 2011...

HOW TO START YOUR OWN LAW FIRM

On April 6, 2011 Miami personal injury lawyer Spencer Aronfeld will be speaking at the University of Miami School of Law.. The topic will be: how to make your own law firm upon graduation from law school and lunch will be served. The event is open to the public as well as students from both undergraduate and law school. He will be reading portions of the book and signing copies from noon to 1:30 pm. Attorney Bruce Shemrock the book’s editor will also be in attendance. Aronfeld, a 1991 cum laude graduate wrote “Make It Your Own Law Firm” a how-to-guide for law students and graduates starting their own practices. Aronfeld has been teaching law students around the country for nearly twenty years regarding flying solo so that no lawyer will have ever take a job for the wrong reasons or find no job at all. Spencer Aronfeld started his own law firm in 1991 upon graduation from University of Miami and has a nationally recognized Florida plaintiff’s personal injury and medical negligence practice in Coral Gables,...
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