Memorandum of Law - Medical Malpractice Essay

1114 WordsMay 15, 20135 Pages
MEMORANDUM TO: John Doe FR: Patricia Oswalt DA: Monday, April 01, 2013 RE: Mary Smith – auto accident / medical malpractice Introduction As requested, I have reviewed the facts of the above-captioned file, along with the applicable law and summarized same in this memorandum. Mrs. Mary Smith suffered an injury to her right ankle in an automobile accident on 10/3/95. After surgery and months of rehabilitation, Mrs. Smith still suffers daily. I have researched the facts regarding a personal injury action against Paul Joseph, as well as a medical malpractice action against the medical providers. Applicable Law Personal Injury Statute of Limitation – 4 years from the date of the incident giving rise to the action. Fla.…show more content…
In this case, the accident is the proximate cause of Mrs. Smith’s injuries and the medical providers are the intervening cause, as their breach of duty exacerbated Mrs. Smith’s injury to the point of permanent disability and disfigurement. Possible Defendants Paul Joseph, the other driver – Florida’s no fault law includes an “injury threshold” limiting law suits to claims of great bodily injury, permanent disability or disfigurement. Statutes, however, are unclear as to exactly what constitutes great bodily injury. It is unlikely that Paul Joseph would be named as a defendant in this action, as Mary’s PIP insurance would be the proper party. Under Florida’s Civil Remedy Statute, §624.155(1)(b), Mary’s insurance company is required to act in her best interests. Should they act in “bad faith” by failing to settle for a reasonable amount, Mary may sue for an amount which is “a reasonably foreseeable result of a specified violation of this section by the authorized insurer and may include an award or judgment in an amount that exceeds the policy limits.” Fla. Stat. §624.155(8) However, the statute goes on to state that “No punitive damages shall be awarded under this section unless the acts giving rise to the violation occur with such frequency as to indicate a general business practice and these acts are: (a) Willful, wanton, and malicious; (b) In reckless disregard for the rights of any insured; or (c) In reckless disregard
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