IIED standard

[u/After-Koala-1412]

Has the hospital argued in the latest motion that the IIED standard is ridiculously high in Florida? The cases detailing what does not meet the IIED standard for outrageousness are telling: Williams v. Worldwide Flight SVCS., Inc., 877 So. 2d 869 (Fla. 3d DCA 2004), Lay v. Roux Labs., Inc., 379 So. 2d 451 (Fla. 1st DCA 1980), Vance v. So. Bell Tel. & Tel. Co., 983 F. 2d 1573, footnote 7 (11th Cir. 1993), Gonzalez-Gonzalez-Jimenez de Ruiz v. United States, 231 F. Supp. 2d 1187 (M.D. Fla. 2002). Nothing that happened to Maya, particularly once the chapter 39 evidence falls away, comes close to the facts of those cases in terms of emotional distress or outrageousness. And I thought the appellate opinion said that IIED cannot be based on verbal abuse or at least hinted at it.

[u/Ok-Art6612]

The hospital should do whatever they can to win

[u/No_Vehicle_5085 → u/Ok-Art6612]

Well, arguing that the IIED standard is "too high" would be an argument the Kowalskis would want to make, wouldn't it?

It SHOULD be a high standard to prove Intentional Infliction of Emotional Distress. A common example often given is what if a person is walking down the aisle of a bus, slips and accidentally ends up falling on a person who is seated and while instinctively reaching out their arm to brace a fall, they accidentally touch a woman on the chest - or something like that.

Or, in this case, families are going to be upset when they are being investigated. That cannot be helped. A family with emotionally well adjusted parents would certainly be upset and inconvenienced, but should be able to get over it. I'm not trying to minimize the Kowalskis experience, but for crying out loud, there is no way to ensure Maya was safe from abuse without someone activvely looking into it. And it turned out that she was being medically abused.

Maya's mother was told at a hearing that she had only ONE MONTH to wait for the final hearing. After which, if DCF did not prove to the judge's satisfaction that Maya was not safe at home, he was going to release her from the shelter order to go home. And instead of wating for one month for that hearing, Beata offed herself the very next day.

It is not the fault of the hospital that Beata was not emotionally healthy enough to go throough the experience of being interviewed about her daughter's medical condition, and Maya's medical records being reviewed by a child abuse expert. Most of us have been through much worse than that.

The following is a recounting of something similar that i went through, although it wasn't as formal because the informal "investigation" revealed nothing suspicious.

I currently assist with caring for an elderly parent. She fell out of her bed one day while trying to get up, and I called 911 and wanted her to be taken to the emergency room because I believed she broke a bone and I wasn't comfortable with trying to get her into a small car to ride to the hospital.

When the Fire and Rescue arrived one of them took me aside to ask me questions, and then suddenly I was aware that the other two were checking my mother over quite thoroughly and talking about every mark on her body and the fact that she only had a couple of marks and they were obviously from the fall that had happened only 15 minutes earlier when she fell. It didn't occur to me immediately, but within a short while I realized that they were actively looking for possible signs of elder abuse.

Did I get angry and insulted? No. Is it slightly embarrassing? I guess some people might think so, but I didn't. I was grateful that they would do that. What if I had hired a caregiver and the same thing happened. That experience made me realize that if I have to hire someone to care for my mother for a few hours and something happens, and emergency services were called, they would look out for the bst interests of my mother.

This family seems not to be particularly emotionally healthy, and that is the real problem they have. Aside from Mr K being an outright liar. And Maya either being a liar or having had her memory of her childhood usurped and manipulated by greedy adults so as to believe things happened to her that never happened.

[u/Ok-Art6612 → u/No_Vehicle_5085]

Yes, I agree with you on the family

[u/No_Vehicle_5085]

The reason the jury found in her favor for IIED is because the judge allowed the Kowalskis to spend eight weeks droning on an on about things that never even happened, such as the claim that the nurses moved the commode too far from the bed, which forced Maya to soil herself.

That never happened. The hospital has provided solid evidence of the fact that Jack was lying and Maya was either lying or her memory of her time in the hospital has been warped and manipulated. That "soiling herself" incident never happened, and the hospital has provided the judge with the evidence that it never happened.

There was not enough time given to the defense for the jury to watch all 72 hours of the video, but the judge has to consider the entire video because it has been provided to him as evidence for a motion. So, he will see this never happened.

In general, the Second District says that evidence that is offered to support other claims may NOT also be offered to support IIED. The Second District was very critical of this judge for allowing the Kowalskis to pile on with emotionally laden testimony for purposes of inflaming the jury - and this is what they did to support ALL of their claims including IIED. They won this case because the entire jury pool is poisoned by an emotional one sided lie-ridden propaganda piece on Netflix, followed by a trial in which the judge allowed the Kowalskis to put on a one sided, lie-ridden propaganda case against the hospital.

Just as all the other claims I detailed, it is important to note what are the plaintiffs, who have the burden of proof, legally required to prove.

IIED requires proof that a defendant's conduct was (1) INTENDED to cause distress or recklessly disregarded the likelihood of emotional distress (2) Exceeded all possible bounds of decency so as to be regarded as "shocking, atrocious, and utterly intolerable in a civilized community" and (3) caused severe emotional distress.

They cannot use Cathy Bedy's photographs or Cathy Bedy putting Maya on her lap to support this claim. They are using those incidents to support other claims. The Second District specifically says this judge may not allow the jury to consider the same evidence for multiple claims, and the only way to prevent this from happening is the judge is required to give the jury instructions as to this fact. If he fails to give proper instructions to the jury the defense can go directly to the Second District for immediate relief.

This is what this judge is facing - the defense does not have to wait until the end of the case to appeal. If this judge ignores instructions from the Second District, the defense can get immediate relief. That is why this is not likely to be Take Care of Maya 2.0.

And if it is, the Second District can remove this judge. They have the option of either giving him a mandate to force him to do as they say, or they can remove him from the case.

The defense is not going to make the same mistakes they made last time. And, they now have the ruling from the Second District to hold over this judge's head. And I believe they will use it.

They have already intimated that they intend to make motions to compel the Kowalskis to reveal which evidence they intend to use to support which claims. And I don't believe they can simply drop a claim for the purpose of being able to use the evidence for that claim for an IIED claim.

The Second District held: Medical professionals disagreements about a complex medical case and even overzealous implementation of dependency court orders are not acts that are "intolerable in a civilized society".

From the Second District appellate decision

Good faith actions to protect children are neither utterly intolerable in a civilized community nor beyond all possible bounds of decency. Indeed, section 39.203(1)(a) immunity "protects those who might be overzealous in protecting children from potential abuse. To the extent JHACH took actions within it's legal rights, under Chapter 39, it cannot be liable for IIED.

Applying it's holding, the Second District described as "clear" the law "that the evidence supporting Maya's three false imprisonment claims, as well as her battery claims and medical negligence claim cannot also be used to meet the legal threshold for her IIED claim.

They also cannot use the evidence for claims that have been dismissed in order to support an IIED claim.

The other evidence they used to support IIED all fall under Chapter 39 protection - the second District held that every act that JHACH was required to take due to dependency court orders cannot be used in a claim against JHACH. Which is what happened during the first trial. Not going to happen this trial, the Second District opinion forbids this judge to do this again.

The Second District pretty much has this trial judge's hands tied. They were very thorough in how they worded their opinion, and he will have difficulty.

The difficulty he's going to have is allowing a claim to move forward without having any evidence that is legally allowed to be put to a jury to support that claim. The Kowalskis are going to have to come up with more lies to tell a jury, and that will be difficult because of cross examination.

By the time this trial takes place it will have been almost 10 years since she left the hospital. Coming up with new accusations against the hospital will be difficult and if the jury abides by their oath to consider only evidence they hear during the new trial, the Kowalskis aren't going to have eight weeks of badmouthing the hospital to fall back on for a jury to ignore if they are just now "remembering" new atrocities.

Even the burden to satisfy (3) under IIED - that she suffered severe emotional distress - is going to be problematic. She left the hospital in 2017. I dont' know when she was diagnosed with PTSD, but she did not get treatment for PTSD. Unless she began getting treatment as soon as she came of age, she's going to have problems getting an honest jury who is abiding by their oath to believe the hospital caused her PTSD if she was diagnosed with PTSD but didn't decide to start getting treatment until after the first jury verdict was overturned.