Articles Posted in Civil Litigation

maze1-300x225Some wrongs present the aggrieved party with more than one legal remedy. A common example is when an injured person has the option of seeking a recovery under common law or workers’ compensation pursuant to Chapter 440, Florida Statutes. Once the choice is made and pursued beyond a certain point, the alternate option cannot be pursued. This is the legal principle known as Election of Remedy.

Typically, the injured person receives or seeks workers’ compensation benefits before deciding to pursue civil damages. There is no shortage of Florida appellate case law addressing how far one may go in the pursuit before the choice becomes binding. There is very little case law addressing the opposite scenario, namely, how far one may go in pursuing a civil remedy before being foreclosed from seeking workers’ compensation benefits.

The legal analysis is the same for both types of cases:

An election is matured “when the rights of the parties have been materially affected to the advantage of one or the disadvantage of the other,” and “[i]t is generally conceded that to be conclusive it must be efficacious to some extent.” Williams v. Robineau, 124 Fla. 422, 168 So. 644 (1936)Williams v. Duggan, 153 So.2d 726 (Fla. 1963).

It is usually much easier to determine whether an election has been made in a civil case than it is in a workers’ compensation case. In civil cases, damages are not paid unless and until a determination has been made on the legal issue of whether common law is the proper vehicle for pursuing a remedy. Until this final determination is made, the election has not matured.

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doctorA patient’s medical records enjoy a confidential status by the right to privacy in Article I, Section 23 of the Florida Constitution. State v. Johnson, 814 So. 2d 390, 393 (Fla. 2002). “Florida law, however, also recognizes that this confidentiality right is not absolute, and provides for the disclosure of medical records pursuant to subpoena in criminal and civil cases.” See Estate of Carrillo v. Federal Deposit Insurance Corporation, (S.D. Fla., 2012).

Florida Rule of Civil Procedure 1.280(a)(1) contains the basic guidance language in civil cases for the disclosure of confidential records.

(1) In General. Parties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party…. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

When it comes to confidential medical records, “the right to discovery in a legal proceeding must be balanced against the individual’s competing privacy interests to prevent an undue invasion of privacy.” See McEnany v. Ryan, 44 So. 3d 245, 247 (Fla. Dist. Ct. App. 2010). In Friedman v. Heart Inst. of Port St. Lucie, 863 So.2d 189, 194 (Fla. 2003), the Florida Supreme Court instructed trial courts that in exercising their discretion to balance the competing interests, they must be guided by the principles of relevancy and practicality.

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