Florida Injury Attorney Blawg

Experienced personal injury attorneys consider many factors in judging how to manage their cases. While common elements are present from case to case, no two cases are ever completely alike. Both subjective and objective considerations must be taken into account to reach decisions most beneficial to client and attorney alike. The decisions are always consequential. The best personal injury attorneys are the best decision makers.

The elements influence everything from: whether the law firm accepts a case; whether a lawsuit will be filed versus simply trying to resolve the case pre-suit; settlement amount; whether to go to trial; whether the case is declined after it has been accepted by the law firm. Since every case has many moving parts, these and other case management decisions are adjusted frequently.

COMMON CONSIDERATIONS
Insurance coverage. There are many different types of liability insurance to cover for losses caused by negligence. The more common are homeowners, premises liability, bodily injury (BI), and medical malpractice. Most individuals and businesses with sizable unprotected assets have strong liability insurance coverage. A fair percentage with weaker financial positions have coverage, although usually with lower policy limits. Some have no coverage at all. The state of Florida has few requirements for maintaining liability insurance. (One exception is for tractor trailers/18-wheelers. The owner is required to maintain $750,000 in coverage. Unfortunately, laws are often violated, including as to maintaining insurance. Surprisingly, doctors are not required to maintain malpractice insurance.) It is mostly left as a personal choice. No matter how significant the damages, no financial means plus no insurance usually means no recovery. Few lawyers will accept a case under these circumstances. Coverage that is available but limited under the circumstances can influence a lawyer's decision to take the case, or how hard and far to push it.

Negligence. Florida operates a fault-based civil liability system. (The workers' compensation system, covered in Chapter 440 of the Florida Statutes, is not fault-based. Benefits, rather than damages, are recoverable under Chapter 440. These benefits are much different than the damages recoverable under the civil liability system.) Only conduct which falls below a reasonable standard is punished. Fault can be shared by various individuals and entities, including the aggrieved party. This is the concept of comparative fault. Fault can be clear, it can be gross, it can be illusive. These fault considerations (and more) influence the course and outcome of every negligence case. Fault must be proved by the aggrieved party to recover damages (e.g., medical bills, lost wages, pain and suffering).

Injuries. Other factors aside, the worth of any personal injury case is always capped by the extent of the injuries. Put another way, an accident without injuries is an accident without value. Individuals can be compensated for the aggravation of pre-existing injuries. See Florida Standard Jury Instruction 501.5(a). This is a frequent battleground issue. Our firm is in suit for a woman involved in a slip and fall accident. Within months of the accident, she underwent a 3-level spine fusion surgery. Because of a relatively minor back surgery 7 years before and some evidence of normal preexisting degeneration, the Defendant is trying to avoid blame for her injuries. It has even hired a notorious insurance company "whore" doctor to support its position. (Mediation is scheduled.)

Medical Treatment. Medical conditions must be documented to be proven. Receiving consistent care from reputable doctors is an important component. Insurance companies know the players, juries are good at recognizing the good and the bad. Delaying the receipt of care or gaps in care make a difference. While there are reasonable explanations for inconsistent care -- the most common being the inability to pay -- a good personal injury attorney can help make arrangements for timely, steady, and quality care to be provided.

Continue reading "Significant Factors in Establishing the Value of Florida Personal Injury Cases -- No Two Cases are Alike" »

Not willing to accept the voice of the people as expressed through jury verdicts, the Florida Legislature has imposed arbitrary limits on how much individuals harmed by medical negligence/malpractice can be compensated for their losses.

Florida law recognizes two types of recoveries for people harmed by negligence, economic and non-economic. Economic losses include past and future income and medical expenses. In broad terms, non-economic losses are pain and suffering.

America's jury system has its roots in Mosaic Law --- Mosaic Law and American Jurisprudence. The system works.

Parties to lawsuits present evidence at trial. Following instructions from trial judges on how to weigh and consider evidence, juries deliberate carefully and thoughtfully behind closed doors --- see, 12 Angry Men (1957 film). For the most part, juries get it right. On the rare occasions they don't, their mistakes are corrected by trial judges and appellate courts.

Civil jury verdicts enable the powerless to hold the powerful accountable for wrongdoing. Florida's Republican-controlled Legislature opposes this principle, and makes its view known every legislative session with proposed legislation aimed at neutralizing the importance of civil jury verdicts. (But for push-back from organizations like the Florida Justice Association, of which I am a proud member, the Legislature's efforts at neutralization would be even more severe, the political equivalent of castration.) Arbitrary and capricious, one-size-fits-all damage cap limits, coming under the guise of "Tort Reform" or justified by the myth of a "Medical Malpractice Crisis" --- (See this blog: Medical Malpractice Myths --- are a particular legislative favorite.

Continue reading "Florida Subjects Medicaid Recipients to Arbitrary Medical Malpractice Limits" »

Florida drivers are surprised to learn that their license privileges can be suspended following a crash determined to be their fault which results in death or bodily injury. They mistakenly believe that being in compliance with the state's minimum insurance requirements protects them against this and other negative consequences of a crash. (To appreciate some of the misunderstanding, read this blog: "Full Coverage" Vehicle Insurance Does Not Mean What Most Floridians Think.)

There are only two types of vehicle insurance coverage required to lawfully register and operate a motor vehicle in Florida, Personal Injury Protection (PIP) and Property Damage - Liability. Neither coverage compensates for death or bodily injury. The only type of third party coverage (as opposed to first party coverage, the subject of another conversation) that does is called Bodily Injury or BI. It is described at Florida Statute Section 324.021 (7). Without BI coverage, the vehicle owner, whether or not the at-fault operator of the vehicle (read, Florida Motor Vehicle Owners Accountable for Damages Without Driving Negligently), can have his drivers license suspended and all vehicle registrations suspended. See the authority for these principles at Florida Statutes 316.066(3)(a)1, 324.051(2)(a), and Section 324.021 (7).

Continue reading "Maintain Motor Vehicle Bodily Injury (BI) Insurance Coverage to Avoid Suspension of Florida Drivers License (DL)" »

The subject of this blog is a recurring theme in our law firm and in every law firm in the state involved in motor vehicle accident litigation.

Insurance coverage is a key issue in every Florida motor vehicle accident case. It is relevant to medical expenses, lost wages, vehicle repairs or replacement, and compensation for non-economic losses like pain and suffering.

Florida law controls some aspects of every motor vehicle insurance policy issued in Florida. At the moment, every new policy must include Personal Injury Protection ("PIP") and Property Damage --- Liability coverage. PIP provides a limited amount of coverage for the insured's own medical expenses and lost wages --- see Florida Statute 627.736. Property Damage --- Liability provides a limited amount of coverage for damage to the property of others caused by the at-fault insured.

Nothing more in the way of insurance coverage is required for a vehicle registered in Florida to be operated lawfully in the state. The minimum mandatory policy is the least expensive policy available, explaining why so many motorists purchase it. Because it complies with Florida law, its owners often think they have "Full Coverage."

Continue reading ""Full Coverage" Vehicle Insurance Does Not Mean What Most Floridians Think" »

Before Florida adopted a workers' compensation system, in 1935, for workers injured on the job to recover medical expenses and lost wages, or be compensated for non-economic damages, like pain and suffering, they had to prove that the accident resulted from negligence on the part of the employer or some third party. Further complicating their path to recovery was the legal principle known as contributory negligence, which acted as a complete bar to recovering benefits if the injured worker contributed in any way to causing the accident, even by as little as 1%. Few workers were able to overcome these two burdens. And for those few who succeeded, the slow grind of justice often left them broken and destitute.

The new system created an immediate sea change of good for Florida's workers. No longer would they be forced to fight, usually unsuccessfully, for every needed benefit. So long as the injury happened in the course and scope of the employment, medical and lost wage (indemnity) benefits would be furnished, contributory negligence notwithstanding. It was the declared ideal of the system to be self-executing, meaning benefits would come without a fight, and, where there was a dispute, the worker received the benefit of any doubt.

In exchange for this no-fault system, injured workers were forced to give up the right to seek common law civil remedy damages, like pain and suffering, from the employer. (They could still seek these damages from third parties.) In other words, employers were immune from civil lawsuits. See, Florida Statute 440.11 for the present day manifestation of what is commonly referred to as "workers' compensation immunity."

The system was hailed as a fair balance between the needs of injured workers and the rights of employers. Workers would receive the quick delivery of benefits, while employers were protected from jury verdicts. Neither side was entirely satisfied or entirely disappointed with the system, an indication of its success.

While the system was tweaked from time-to-time by legislative action and court decrees, it remained fairly evenly balanced for more than 50 years. That fair balance changed dramatically, in favor of Big Business and insurance companies, under the rule of Governor Jeb Bush (1999-2007), who followed the example set by his big brother George, as governor of Texas . Successive Republican governors -- Charlie Crist and Rick Scott -- and Republican legislators, who controlled both the Florida House of Representatives and the Senate, did nothing to swing the pendulum back towards a fair middle ground. Accordingly, It can be said with full certainty that Florida now has one of the most unjust, if not the single most unjust, workers' compensation systems in the entire United States.

Continue reading "Florida Workers' Compensation a Long Way From Its Roots" »

Business establishments owe patrons the duty of ordinary and reasonable care with respect to their safety. See Economy Cash & Carry Cleaners, Inc. v. Gitlin, 1 So.2d 191 (Fla. 1941), and our blog, Status Determines Duty in Florida Premises Liability Cases. To meet this duty with regard to chairs made available to patrons, the establishment must select bullet-proof, industrial grade chairs able to withstand heavy use by heavy people, or have an effective inspection and maintenance procedure in place. See, Fontana v. Wilson World Maingate Condominium, 717 So.2d 199 (Fla. 5th DCA 1998) (The court decided that the jury could have found that the owner's ostrich like approach to the safety of its premises did not meet its obligations to its invitees.)

Continue reading "Florida Business Establishment Liability for Personal Injuries Caused by Broken Chairs" »

Is the loss of a loved one by medical malpractice less painful and catastrophic than such a loss by some other form of negligence? Either the Florida Legislature thinks so, or else it purposely created an arbitrary and capricious law to insulate medical providers from being held fully accountable for their negligence. The law in question is Section 768.21, of Florida's Wrongful Death Act.

768.21 says who can make a civil damage claim arising from the death of a loved one through the negligent act of another party. Subsection (3) provides that "[M]inor children of the decedent and all children of the decedent if there is no surviving spouse, may also recover for lost parental companionship, instruction, and guidance and for mental pain and suffering from the date of injury." Subsection (4) declares that "[E]ach parent of an adult child may also recover for mental pain and suffering if there are no other survivors."

(Florida Statute 768.18 defines "minor children" as children under 25 years of age, notwithstanding the age of majority.)

Continue reading "Doctors Skirt Fault Under Florida's Wrongful Death Act" »

In our experience of representing individuals with practically every type of injury, we have learned that few injuries are more common -- second to back pain -- painful, and debilitating than rotator cuff tears.

The rotator cuff is made up of 4 tendons that cover the top of the humerus. A rotator cuff injury involves a tear to one or more of these tendons. Tears can be full or partial thickness.

Tears can be acute, when a sudden force (blunt or overstrain) is applied to the shoulder, or chronic, which is deterioration over a long period of time. Common symptoms of acute tears include a tearing sensation, sudden pain, and sudden weakness. The symptoms of chronic tearing include gradual progression of shoulder pain and weakness, and difficulty sleeping on the affected side.

Rotator cuff tears are diagnosed clinically, by the orthopedist through examination, and by MRI. The best type of MRI to accurately diagnose the presence of a rotator cuff tear is the MRI arthrogram.

Continue reading "Rotator Cuff Tears a Common and Debiltating Injury for Florida Workers" »

Any cause of action, or lawsuit, arising in Florida from the death of an individual caused by the wrongful act or negligence of any person or entity is controlled by the "Florida Wrongful Death Act" (Sections 768.16-768.26). This blog describes some key wrongful death claim considerations.

• Statute of Limitations: Florida Statute Section 95.11(4)(d) instructs that an action for wrongful death must commence within two years of death. Section 95.11(4)(b) describes when the SOL can be extended beyond 2 years where the WD resulted from medical negligence. (Read this blog: The Statute of Limitations (SOL) Under Florida's Wrongful Death Act.)
• Court of Competent Jurisdiction: Typically, WD claims are brought in state circuit courts. Regarding venue, Florida Statue, 47.011 provides that "Actions shall be brought only in the county where the defendant resides, where the cause of action accrued.... This section shall not apply to actions against nonresidents." If none of the defendants reside in or have a principal place of business in Florida, the action must be brought in federal court.
• Parties to the Lawsuit (Plaintiff): Florida WD actions are prosecuted by court appointed personal representative(s) on behalf of the decedent's statutorily defined "survivors." Link to this blog (for an outline of the "survivors" list.) The court appointed PR is often a survivor, like an adult child or a parent. The court may also appoint a guardian ad-litem for minors and incompetent adults.
• Parties to the Lawsuit (Defendant): Defendants in WD actions are the individuals and entities who are alleged to be at-fault.
• Damages: Making defendants pay monetary compensation to the survivors for their loss is how defendants are punished under our civil justice system. The amount of compensation, or damages, is determined by examining such elements as mental pain & suffering, loss of the decedent's companionship and protection, past and future loss of support and services, and medical and funeral expenses. (Read this blog to see an outline of the damages available under the Act.)
• Pretrial Procedure: Florida Wrongful Death Act claims can be settled by the parties at any time, even pre-suit. Some are settled after the lawsuit has been filed, but before or during trial. Some are dismiised by the court. The remainder go to final verdict.
• Trial: Wrongful death cases are typically tried to juries, although judges can be chosen to act as the finder of fact. Judges make legal rulings, juries make factual determinations.
• Post-trial: All rulings by judges and juries can be challenged on appeal. The threat of appeal sometimes precipitates settlement.

Continue reading "Key Elements in Florida Wrongful Death Legal Actions" »

When a person dies from an accident in Florida, who, if anyone, can be compensated for the loss is prescribed by statute in Florida's Wrongful Death Act, Sections 768.16-768.26. The Act refers to those who are eligible as "survivors."

The survivors list can be inequitable. For example, under some circumstances parents and children are barred from recovering for the painful loss of a loved one caused by the negligence of a wrongdoer. (See this blog for the survivors list broken down into chart form: Outline of Compensation for "Survivors" Under Florida's Wrongful Death Act.)

Odd as it sounds, Florida wrongful death claims are not brought by statutory survivors. Rather, they are brought by Personal Representatives on behalf of survivors. WD actions are filed in the PR's name, and the PR chooses the lawyer to handle the case. (While individual survivors can hire separate counsel to protect their interests, it is the PR and the PR's chosen attorney who essentially control the course of the action.)

The PR can be a survivor. This may seem like an unworkable conflict, however, Florida laws and judges do an excellent job of policing cases to avoid problems. PRs have a serious fiduciary duty to apportion the proceeds of any recovery in a reasonable and equitable manner to each survivor. Section 733.602 Florida Statutes ; In re Estate of Wiggins, 729 So.2d 523 (Fla. 4th DCA 1999); Continental National Bank v. Brill, 636 So.2d 782 (Fla. 3rd DCA 1994); University Medical Center v. Ziegler, 625 So.2d 125 (Fla. 5th DCA 1993); Guadalupe v. Peterson, 779 So.2d 494 (Fla. 2nd DCA 2000); and Thompson v. Godson, 825 So.2d 941 (Fla. 1st DCA 2002) review denied 835 So.2d 266 (Fla. 2002). Failing to do so properly is messing with fire.

Continue reading "Role of Personal Representatives (PR) in Florida Wrongful Death Cases" »

Florida once treated its injured workers with dignity and respect. This is no longer the case. Current workers' compensation laws treat injured workers as expendable commodities. Little regard is given to their health and well-being.

Rather than being a non-adversarial system for the provision of needed and deserved benefits, as it was originally designed to be when adopted in Florida nearly 80 years ago, Florida's workers' compensation system has become a gauntlet of detours and obstructions with little reward at the end for those few who somehow manage to find their way through.

Complicating matters greatly for injured workers is that their lawyers are prohibited from being compensated fairly for their services. This was a clever scheme formulated by former Governor Jeb Bush and his Republican colleagues in 2002 to keep injured workers from being represented adequately. Here's proof in the pudding: In Jennifer Kaufman v. Community Inclusions, Inc./Guarantee Insurance Company, the claimant's attorney successfully prosecuted claims against the employer/insurance carrier. For his services, which consumed 100.3 hours, he received a whopping court awarded a fee of $648.41, or $6.48 per hour. (The fee was awarded by Judge E. Douglas Spangler, Jr. To Judge Spangler's credit, he wrote in his Final Compensation Order that the attorney deserved a fee in excess of $25,000, but that his hands were tied by the workers' compensation attorney's fee statute, 440.34. Judge Spangler also expressed dismay that the employer/carrier were allowed to pay their own defense attorney $14,720.) The First District Court of Appeal upheld the small award.

Here's a sampling of other ways in which Florida's workers' compensation system has moved away from being for the people:

In 1990, amendments to Chapter 440, Florida's body of workers' compensation laws, reduced the duration of temporary monetary benefits from 350 weeks to 260 weeks. Temporary benefits are payable to injured workers during the recovery process prior to maximum medical improvement -- (440.02(10). (In 1993, the legislature further reduced temporary benefits to a maximum of 104 weeks. However, in a recent 1st DCA decision, Westphal v. City of St. Petersburg/Risk Management & State of Florida, the 104 week limit was struck down and replaced by the 260 week limit.)

The 1990 amendments also cut dramatically the benefits available under the wage loss system. Consider the case of a person left with a 6% permanent impairment -- this is the current rating for a single level spinal disc herniation. Pre-1990, the injured worker was eligible for 520 weeks of benefits. This person would have to perform weekly good faith job searches and prove a connection between his injury and wage loss to receive benefits. The 1990 changes reduced eligibility for a 6% impairment to 78 weeks. If this reduction were not drastic enough, in 2003 the wage loss system was eliminated altogether, replaced by one in which an injured worker left with a 6% permanent impairment would receive 12 weeks of impairment benefits. Period. So, in little more than 21 years, wage loss benefits have been reduced by 98%.

Before 1993, Chapter 440 contained explicit language calling for workers' compensation laws to be liberally construed in favor of injured workers. When in doubt, rule in favor of the worker. This worker friendly mentality was adopted in 1935, when the Florida Legislature first enacted the "Workman's Compensation Act." The 1993 Legislature had no use for this attitude and cut it out of the statute.

Continue reading "Florida's Workers' Compensation System is Worse Than Ever ... If You're an Injured Worker" »

A statute of limitation is an enactment in a common law legal system which sets forth the maximum time after an event that legal proceedings based on that event may be initiated. Most people are familiar with the concept.

Less known, but equally potent as a time bar to bringing claims, is the statute of repose. It is sometimes called a non claim statute.

A products liability case is a legal action for injuries founded on the defective design, manufacture, distribution, or sale of personal property. Examples of the types of products sometimes found to be defective are tires, motor vehicles, drugs, and surgical hardware.

In Florida, defective products cases are subject to both a statute of limitation and a statute of repose.

A lawsuit for injuries caused by a defective product must be filed in Florida within four years of the event or within four years of when it is known or should have reasonably been known that the product is to blame. Florida Statute 95.11(3)(e). When death results from a defective product, Florida's Wrongful Death Act imposes a two year time limit on bringing a claim.

Continue reading "Florida's Statute of Repose Sometimes Bars Products Liability Claim Where Statute of Limitation Does Not" »

From time-to-time we publish in our blog letters and articles written by others on subjects of interest to us. Here are two excellent letters published in the March 1, 2013 issue of The Florida Bar News. Each addresses medical malpractice issues.
_____________________

Med Mal

This is a response to Robert William Patton's defense-oriented letter on med mal experts. I have done complex medical malpractice cases for plaintiffs for the past 40 years and never filed a "frivolous med mal case."

The sole cause of medical malpractice is bad doctors and health care providers. Nothing has ever been done to attack and remedy that root cause. Over 100,000 patients a year are killed by medical malpractice. It is so bad now that every patient should have a "patient advocate" with him/her when entering a hospital. The "Public Citizen Health Letter" has rated Florida one of the 10 worst states for pursuing disciplinary actions against physicians four times since 2001. The Florida Agency for Health Care Administration is a joke. The only thing that keeps healthcare providers accountable is med mal suits.

The defense bar and other conservative elements have put up every obstacle possible to prevent plaintiffs from filing these suits. The biggest obstacle is the presuit requirements, which are designed for doctors to investigate the case and, hopefully, settle them before suit is filed. After filing hundreds of medical malpractice cases, I have never had a plaintiff make a settlement offer during the presuit stage, before the complaint is filed. The defense always comes up with some "expert" to file an affidavit to refute the plaintiffs claims in pre-suit.

Continue reading "Medical Malpractice Myths" »

Florida's Wrongful Death Act, located in sections 768.16 through 768.26 of Florida's statutes, controls legal actions arising from the loss of life on account of a tortfeasor's negligence. The Act refers to those who may recover damages for the loss as "survivors."

Survivors can be spouses, children and parents. The Act allows survivors to recover the decedent's medical expenses and future lost earnings and accumulations, and to be compensated for their own mental anguish.

Needless to say, the loss of a parent or child causes substantial mental anguish. Inexplicably, Florida's Legislature has carved out an exception for mental anguish damages caused by medical negligence. Specifically, the Act bars

• compensating adult children for mental anguish caused by the death of a parent


• compensating parents for mental anguish caused by the death of an adult child

Since section 768.18(2) of the Florida Statutes defines minor children as being children under 25 years of age, notwithstanding the age of majority, the Wrongful Death Act's exceptions apply in the case of children 25 years of age and older.

These exceptions are arbitrary and capricious. Unfortunately, they have been upheld by the Florida Supreme Court. See Mizrahi v. North Miami Medical Center, Ltd., 761 So. 2d 1040 - Fla: Supreme Court 2000.

In addition to depriving survivors of their rightful due, these outrageous exceptions create a dangerous environment for many people who receive medical care in Florida. Strong and fair medical negligence laws demand accountability from providers and facilities. This promotes quality care. Weak laws allow the opposite. Making matters worse, the exceptions create a financial incentive for death as the prefered outcome following a serious malpractice event. Under Florida's civil justice system, those who survive their medical malpractice injuries can be far costlier than those who do not. Because money has a way of making people do rotten things, this is a troubling scenario.

Continue reading "Florida's Wrongful Death Act Fosters Better-Dead-Than-Alive Philosophy In Medical Malpractice Cases" »

I discuss settlement with our workers' compensation clients every day of the week. Even people we don't represent call on a regular basis to pick my brain about settlement. Each case has its own unique set of variables. No blueprint is available to provide answers.

Some basic principles do apply in every Florida workers' compensation case. It is important for them to be understood.

1. Neither the employer/carrier (e/c) nor the injured worker/claimant can be forced to settle a Florida workers' compensation case. If there is going to be a settlement, it must come by agreement of the parties.


2. No judge or jury can order the e/c to pay a lump sum amount for future benefits. While workers' compensation judges can order the e/c to provide some future benefits, the payout only comes as the benefit accrues. For example, the judge can make an e/c responsible for attendant care, but the e/c only pays as the service is provided. Lump sum verdicts are the remedy in civil cases, not in workers' compensation cases.


3. There are no juries in workers' compensation cases, only workers' compensation judges appointed by the Governor of the state. Juries render verdicts in civil cases.


4. Injured workers never receive compensation for pain and suffering in Florida workers' compensation cases. Compensation for pain and suffering is exclusive to civil liability cases. While an employer can sometimes be sued for civil damages, it is a rare exception. It is not uncommon, however, for a third party to be sued in civil court for causing the employee's job-related accident. For example, our office is currently prosecuting a civil action for a woman who slipped in wet paint as she was leaving work. The case is against her employer's landlord. We settled the workers' compensation case against her employer (and its insurance company) six months ago.

Settlement value is based on exposure. How much a case is worth at any given moment in time depends on how much the case can reasonably be expected to cost e/c in the future if it does not settle. Since the e/c is not in the business of giving gifts to injured workers, it will never settle a case for more than what it projects as its long term exposure. In fact, the e/c won't even settle for an amount equal to its projected exposure. If a deal is to be made, it will have to be for a fraction of e/c's worst case scenario analysis. The main reason for this is because the e/c earns money on its money. Rather than pay the full amount today, the e/c is better off investing the money and paying it off over time. Another reason why less than full exposure is paid today is because workers' compensation claims die with the claimant. The e/c's obligation to pay benefits ends when the claimant dies. Whatever money e/c has in reserve to meet is future obligations becomes its money with the passing of the claimant.

Continue reading "Settlement Considerations in Florida Workers' Compensation Cases" »