Update 8/22/15: This article is up to date.
In Carnival v. Jimenez, 112 So. 3d 513, 520 (Fla. 2d DCA 2013), Cheryl Jimenez appealed a verdict in her case against Carnival. She sued Carnival Corporation for damages that she sustained in a shipboard slip and fall incident.
I do not know which ship it happened on. Florida’s Second District Court of Appeal issued an opinion on February 27, 2013.
This case was not heard in Miami’s federal court, which is where Carnival’s passenger ticket contract currently requires that passenger cases be brought. It was heard in another part of the state because this case was before Carnival added a venue provision in its passenger ticket contract.
Today, this same court would need to be filed in federal court in Miami. Not all Florida lawyers are licensed in Federal Court in Miami.
Miami lawyers represented Carnival. A Tampa attorney represented the injured passenger. This is not my case. However, I have settled cruise ship slip and fall injury claims.
A jury awarded Ms. Jimenez $3,750 for past medical expenses and $3,750 for past pain and suffering. The appeals court allowed the verdict to stand.
Facts
On May 17, 2009, Jimenez was on a Carnival cruise ship to attend the wedding of her nephew. As Ms. Jimenez was walking past a buffet, she slipped on an oily substance and fell.
Immediately after her fall, Carnival personnel treated Ms. Jimenez in the ship’s infirmary for complaints of pain in her right knee and right hip. When Ms. Jimenez fell, the ship was still docked at the Port of Tampa.
Ms. Jimenez was later transported from the ship to Tampa General Hospital.
Tip: If you are hurt, being taken to the hospital directly from the ship increases the full value of your case.
At Tampa General, Ms. Jimenez was treated for contusions (bruises) to her right hip and right knee and for a back strain.
During the next few weeks, Ms. Jimenez’s right-sided pain began to go down. However, on June 25, 2009, she consulted Dr. John Smith (not actual name), an orthopedic surgeon.
First complaints of left knee and back pain 5 weeks after the fall
On her first visit to Dr. Smith, Ms. Jimenez complained about pain in her left knee and in her neck and back.
My thoughts: Her first complaints of left knee pain and neck pain were not until five (5) weeks after her fall. A Carnival claims adjuster calculates the settlement value of a case at a certain point.
In this case, the adjuster’s evaluation likely applied a 50% discount due to no complaints of left knee and neck pain until 5 weeks after the fall.
Ultimately, Dr. Smith performed two surgical procedures on Ms. Jimenez’s left knee. The second procedure, performed in October 2010, followed a separate gardening mishap. In the gardening incident, Ms. Jimenez experienced a sharp pain in her left knee while pushing a shepherd’s hook into the ground with her left foot.
Ms. Jimenez sued Carnival Corporation. The District Court of Appeal of Florida, Second District issued an opinion on February 27, 2013.
Dr. Smith appeared at the trial as a witness for Ms. Jimenez. He testified that Ms. Jimenez’s shipboard slip and fall caused the problems with her left knee and required the two surgical procedures.
In response, Carnival argued that Ms. Jimenez’s problems with her right knee and hip had resolved within a few weeks after her fall.
My thoughts: Carnival, or another cruise line, may hire a doctor who says that your knee or hip pain should have gone away after a few weeks after the fall. This is one of the hurdles to overcome when you do not have a fractured bone.
All things equal, due to possible causation issues, soft tissue cases are more difficult than broken bone cases. Carnival related Ms. Jimenez’s issues with her left knee to normal, degenerative changes in the joint and to the separate gardening incident.
After a certain age, the joints begin to have degenerative changes. Expect Carnival to argue that your soft tissue injury is due to degenerative changes, and not the accident.
During the relevant time, Ms. Jimenez did not have any medical insurance. Thus many of her medical providers — including Dr. Smith and the surgical center in which he had an interest — treated her under letters of protection.
What is a Letter of Protection (LOP)?
A letter of protection is a document signed by an attorney on a client’s behalf to a health-care provider when the client needs medical treatment, but does not have insurance.
Generally, the letter states that the client is involved in a personal injury claim and seeks an agreement from the medical provider to treat the client in exchange for deferred payment of the provider’s bill from the proceeds of a settlement or award. Typically, it states that if the client does not obtain a favorable recovery, the client is still liable to pay the provider’s bills.
Possible Negative Effect of Letter of Protection in a Florida Injury Case
Carnival’s trial attorneys made the existence of the letter of protection in favor of Dr. Smith a significant issue at the trial. In addition, the defense lawyer got testimony from Dr. Smith that the doctor and a partner in the law firm representing Ms. Jimenez were neighbors and that they saw each other socially.
Thus, her counsel attempted to minimize the impact of the letter of protection on Dr. Smith’s credibility by contrasting Dr. Smith’s role as Ms. Jimenez’s treating physician with Carnival’s reliance on “hired experts”.
During the closing argument of Carnival’s attorney, he responded by emphasizing that Dr. Smith had a financial interest in the outcome of the case based on the letter of protection. During a lengthy discussion of the letter of protection, Carnival’s lawyer also offered his opinion that Dr. Smith had testified in accordance with a script.
Carnival’s attorney’s remarks about the claimed “scripted” testimony were as follows:
“So let’s use our common sense and let’s connect the dots. Ms. Jimenez doesn’t know Dr. Smith. Ms. Jimenez’s primary care physician did not refer Ms. Jimenez to Dr. Smith.
You heard from Dr. Smith, he and her attorney’s boss are close social friends. So do I think there is a coincidence going on here?
No. I think everything was absolutely scripted. Her attorney’s boss and Dr. Smith are dear family friends. They live very close together. They are social friends.”
My thoughts: Carnival’s attorney implied that Ms. Jimenez’s treating orthopedic doctor would have had more credibility if her primary care physician referred her to him. In Florida, it is best, for a slip and fall case where a lawsuit will be filed in Florida, to get a referral from your primary care physician to an orthopedic doctor.
Tip: Ask your primary care doctor to give you the names of several orthopedic doctors. Hopefully he will give you the names of Florida orthopedic doctors who treat people who are hurt in accidents. This is better than your lawyer referring you to a doctor.
The jury found Carnival liable for Ms. Jimenez’s slip and fall; it did not attribute any comparative negligence to her. The jury awarded Ms. Jimenez $3,750 for past pain and suffering and $3,750 for past medical expenses.
Wage Loss/Future Earning Capacity
Ms. Jimenez did not make any claim for lost wages or loss of earning capacity. The jury did not award her money for future pain and suffering or for future medical expenses.
The problems for Ms. Jimenez at trial were not liability but causation and the extent of her damages. She asked for a much higher award than the jury’s $7,500 verdict.
Undeniably, Ms. Jimenez had been injured in her slip and fall on the ship. She was treated in the ship’s infirmary immediately after the incident.
Tip: If you get treatment at the ship’s infirmary immediately after your accident, it drives up the full value of your case. This assumes that you are injured. Carnival’s claims adjusters, jurors and judges are more likely to believe that your slip and fall caused your injury.
Ms. Jimenez was transported directly from the ship to Tampa General for further treatment. However, the evidence at trial suggested that the right-sided pain experienced by Ms. Jimenez immediately after her slip and fall resolved itself within a few weeks after the incident.
In addition, there was enough evidence from which the jury could have determined that the other conditions for which Dr. Smith treated Ms. Jimenez were caused by normal degenerative changes, the separate gardening incident, or both.
In this case, the appeals court allowed the verdict to stand.
My thoughts: This is, in part, because her first complaints of left knee pain were made five (5) weeks after the accident. The doctor that Carnival hired probably said that in order for the left knee pain to be from the accident, she would have immediately complained of it at the ship’s infirmary.
If you have an “unrelated” accident and injury after you slip and fall on the cruise ship, and you injure the same body parts, this hurts your case.
By “unrelated”, I mean that your injury from the cruise slip and fall did not cause your later accident. The appeals court may use this as a basis for allowing a jury verdict to stand.
The appeals court said that if the jury took this view of the evidence, then the jury’s verdict seems modest but not outside the range of possible verdicts one might expect under these circumstances.
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