April 6, 2014

Gigantic Loophole in Florida's Wrongful Death Act

scales of justice.jpgIn McCall v. United States of America, the Florida Supreme Court declared that the statutory cap on noneconomic damages in medical malpractice cases was unconstitutional. (In reaching this conclusion, the court determined that the numbers Governor Jeb Bush and his cronies presented to the Florida Legislature to demonstrate a medical malpractice crisis were cooked. In other words, the numbers were phony.)

As important and right as this decision is, a gigantic and dangerous wrong remains alive within the medical malpractice civil justice system.

Florida's Wrongful Death Act is the civil law blueprint for addressing a wrong resulting in death caused by negligence. Section 768.21 Florida Statutes lays out who may be compensated for the loss of a loved one and by what measure. In all but one type of case where death has resulted from negligence, the children, no matter their ages, of a parent who has died without leaving behind a surviving spouse may recover from the wrongdoer for pain and suffering and the loss of the decedent's companionship and protection. (See this blog for an easy to understand wrongful death survivors and damages chart.)

The one exception? For death caused by medical malpractice.

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April 2, 2014

Purchase a Defense Attorney With Florida Bodily Injury (BI) Vehicle Insurance

handshake.jpgBodily Injury (BI) insurance sold in Florida covers the insured for damages caused by his or her negligence up to the policy limits. The minimum coverage limit is $10,000, but can be in the millions. Inexplicably, BI insurance is not mandatory in Florida. Only PIP and Property Damage Liability are mandatory.

While the difference between $10,000 and, say, $1,000,000 in BI coverage is significant, the insurance company has a duty to defend the insured equally regardless of the limit. This is another benefit of maintaining bodily injury insurance.

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April 1, 2014

Florida Vehicle Accident Law: Parental & Guardian Vicarious Liability for Minor

application.jpgThis link contains an overview of permit and license standards in Florida for drivers between the ages of 15 and 17.

Florida Statute §322.09(1)(a) requires an authorized adult (e.g., parent or guardian) to sign and verify the minor's application. In turn, §322.09(2) makes the adult jointly and severally liable for any damages caused by the negligence or willful misconduct of the minor under the age of 18 years when driving a motor vehicle, any motor vehicle, upon the roadway.

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March 18, 2014

Power to the People! Florida's Arbitrary and Capricious Medical Malpractice Damage Caps Declared Unconstitutional

scales of justice.jpgOn March 13, 2014, the Florida Supreme Court, by its decision in McCall v. United States of America, exposed the fraud of "Tort Reform" perpetrated on the American public by Karl Rove, George Bush, Jeb Bush and others of that ilk.

Michelle McCall, a U.S. military veteran, died from shock and cardiac arrest as a result of severe blood loss after giving birth. She was removed from life support on February 27, 2006. A medical malpractice lawsuit was brought by her survivors, Ms. McCall's parents and the newborn child. Following a lengthy trial, the district court concluded that the survivors' noneconomic damages, or nonfinancial losses, totaled $2 million, including $500,000 for Ms. McCall's son and $750,000 for each of her parents.

However, the district court limited the Petitioners' recovery of wrongful death noneconomic damages to $1 million upon application of section 766.118(2), Florida Statutes (2005), Florida's statutory cap on wrongful death noneconomic damages based on medical malpractice claims.

The Petitioners (the survivors) challenged the arbitrary damage caps of 766.118 by appealing to the United States Court of Appeals for the Eleventh Circuit. Even though the survivors lost the appeal, the Eleventh Circuit asked the Florida Supreme Court to take jurisdiction, pursuant to pursuant to Art. V, § 3(b)(6), Fla. Const., because there was no controlling precedent of the supreme court of Florida. The supreme court accepted the invitation.

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March 9, 2014

Florida Personal Injury Law: Pedestrian Struck by Motor Vehicle

city-zone-945513-m.jpgA pedestrian struck and injured by a motor vehicle may be covered by some, all or none of the following types of motor vehicle insurance:

Personal Injury Protection (PIP). PIP is no-fault insurance, meaning that covered individuals receive the benefit without regard to fault. Put another way, at-fault individuals may recover under this type of insurance. This coverage does not compensate for non-economic damages like pain and suffering, and the limit for what it does cover -- medical and lost wages -- is typically capped at $10,000 combined. It is also subject to deductibles and does not pay 100% of the medical benefits or lost wages. It is not always easy figuring out whose insurance coverage applies.

  • If the pedestrian owns a vehicle and has PIP coverage on the vehicle, a requirement under Florida law for operational vehicles registered in the state, the pedestrian's own policy applies. F.S. 627.736(4)(e)1.

  • If the pedestrian does not own a vehicle that must be insured, but resides with a relative who does, the resident relative's policy provides coverage. F.S. 627.736(4)(e)3. (If there is more than one resident relative with coverage, each carrier must pay its pro-rata share. Regardless of the number of carriers, PIP coverage is limited to $10,000 unless a policy has a higher coverage limit. F.S. 627.736(f)).

  • If neither the pedestrian nor a resident relative has PIP, the at-fault vehicle owner's and/or operator's carrier provides coverage. F.S. 627.736(4)(e)4.
CAVEAT: None of these PIP provisions apply if the accident occurs outside of Florida.

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March 5, 2014

Florida Premises Liability Law: Evidence of Prior Bad Acts

street-fight-379259-m.jpgIn Bellevue v. Frenchy's South Beach Cafe, Inc., So.3d , 38 FLW D2537 (Fla. 2nd DCA 12-4-2013), the 2nd DCA held that the trial judge was wrong in keeping evidence of the following prior incidents, some of which dated back four-and-a-half years before the subject incident, from the jury's consideration in a barroom brawl case involving serious injuries:

  1. the night cook being stabbed in front of the restaurant after he got off work;

  2. multiple instances of patrons being kicked out of the bar for harassing employees, being vulgar, being rude, threatening employees, or being so drunk they fell off of a bar stool;

  3. patrons being kicked out for fighting;

  4. patrons drunk and fighting on the deck;

  5. a car being broken into in the parking lot;

  6. a minor in possession of alcohol who was armed with a knife out front;

  7. a near-fight between two patrons and a waiter;

  8. multiple instances of having to stop serving alcohol to patrons because they were "out of control";

  9. multiple instances of drunk patrons being loud and vulgar or threatening; and

  10. the police having to be called because two patrons were about to fight.

In Florida premises liability cases, the plaintiff bears the initial burden of presenting competent and substantial evidence that the incident was reasonably foreseeable and the defendant failed to take reasonable measures to prevent it. The plaintiff in Bellevue tried to meet this burden by introducing evidence of sixty prior events, including the above listed. The court ruled that only those incidents "involving damage to persons or property" and "starting [on], ending [on], or involving the premises" would be admitted. As a result, only twelve of the sixty incidents were admitted.

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March 3, 2014

Florida UM (Uninsured Motorist) Coverage Means What it Says

crushed vehicle.jpgMany people, including some personal injury lawyers, believe that UM insurance always provides coverage when the insured is not at fault and there is no other insurance to cover the losses. This is wrong.

When the driver of an uninsured or underinsured (UIM) vehicle causes an accident, UM/UIM should kick in to compensate for losses such as wage loss, medical expenses, and pain and suffering. This is prescribed by Section 627.727(1) Florida Statutes, which provides, in pertinent part, as follows:

No motor vehicle liability insurance policy which provides bodily injury liability coverage shall be delivered or issued for delivery in this state with respect to any specifically insured or identified motor vehicle registered or principally garaged in this state unless uninsured motor vehicle coverage is provided therein or supplemental thereto for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom. (Italics provided)
Crashes without the wrongdoing of another driver do occur. Our office was recently retained by a woman who struck a tree after swerving her car to avoid hitting a dog that had suddenly entered the roadway. She sustained severe whiplash and a blow to the head which caused her to lose consciousness. She was rushed to the hospital by ambulance and admitted for testing and overnight observation. Her car was totaled. The accident was not her fault.

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February 23, 2014

The Pre-Suit Settlement Demand Package in Florida Personal Injury Cases

truck2.jpgInsurance companies operating in Florida are under a legal duty to adjust claims in good faith to prevent their insureds from being subject to excess judgments (a court judgment in excess of a policy's liability limit). A carrier that fails to act in good faith may be forced to satisfy an excess judgment as punishment for breaching the duty.

Most individuals do not maintain adequate policy limits to cover the full consequences of a serious accident. For example, the minimum and least expensive limit for motor vehicle bodily injury (BI) insurance is $10,000 per person/$20,000 per accident. For those individuals who even carry BI coverage at all -- it is not mandatory in Florida -- this is the limit level most frequently chosen. BI insurance is expected to cover past and future medical expenses, past and future lost income, property damage, and non-economic damages such as pain and suffering. Nor do most individuals have enough private money to cover damages above policy limits. In cases involving serious injuries, $10,000 does not go far.

Liability insurance companies have an affirmative duty to gather damages information. They cannot sit idle when information is at their disposal. Evidence such as vehicle property damage and the police crash report, often indicators of the seriousness of a crash and fault, are usually readily available. This information, alone, can be enough for the carrier to make the decision to tender policy limits. For example, in a case involving a $10,000 policy, evidence of a high speed crash resulting in significant property damage should be enough for the carrier to tender.

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February 21, 2014

My Recent Experience With Florida's Workers' Compensation EMA (Expert Medical Advisor) Law (Statute 440.13(9))

greed.jpgWhile it's bad enough that the employer/carrier ("E/C") get to hand pick the injured worker's treating doctors, Section 440.13(9)(c) Florida Statutes (2013) gives them a free shot at defeating opinions they oppose. My recent experience demonstrates the point.

In pertinent part, Section 440.13(9)(c) provides:

If there is disagreement in the opinions of the health care providers, if two health care providers disagree on medical evidence supporting the employee's complaints or the need for additional medical treatment, or if two health care providers disagree that the employee is able to return to work, the department may, and the judge of compensation claims shall, upon his or her own motion or within 15 days after receipt of a written request by either the injured employee, the employer, or the carrier, order the injured employee to be evaluated by an expert medical advisor. The opinion of the expert medical advisor is presumed to be correct unless there is clear and convincing evidence to the contrary as determined by the judge of compensation claims.
My client claimed to have hurt his back while trying to lift a roll of tarpaper from the floor of a van. Unbeknownst to him, the tarpaper had melted in the hot sun and stuck to adjacent rolls, causing unexpected resistance during the attempted lift. He felt the immediate onset of intense back pain.

Initially, E/C sent him to a workers' compensation clinic. A lumbar spine MRI was ordered. The diagnostic test revealed a disc herniation at L5-S1 along with bony degenerative changes. The herniation caused the clinic doctor to prescribe a consultation with an orthopedist. The orthopedist, chosen, of course, by the E/C, opined that the incident was the major contributing cause ("MCC") of the disc herniation. He also decided that his patient might benefit from surgery, so he sent him to an orthopedic surgeon, again chosen by the E/C. The surgeon, Jonathan Hyde, M.D., performed a comprehensive physical examination, took a thorough medical history, and personally reviewed the MRI images (as opposed to simply relying on the radiologist's report). He, too, opined that the incident was the MCC of the disc herniation. He prescribed physical therapy and medicine, and later performed an epidural steroid injection. When none of the conservative approaches worked, he recommended surgery consisting of a "trans-facet decompressive laminectomy approach followed by a transforaminal lumbar interbody fusion." A surgery date was scheduled for one month later.

Up to this point the E/C had been covering all of the medical care, including the epidural injection. However, it refused to authorize the expensive surgery. Its response was to challenge the treating doctors' MCC opinions.

E/C went out and hired a well-known insurance company doctor to perform a so-called "IME." This doctor had not done back surgery since 1979, had not written any articles or given any lectures on the subject of herniated discs or the type of surgery that had been recommended. His CV was only four pages long. In contrast, Dr. Hyde's CV was some thirty pages long, with entry after entry of articles and lectures on the subjects at issue. He specialized in diagnosing and treating disc herniations. In short, E/C's IME is a hired gun, Dr. Hyde is a top gun.

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February 17, 2014

List of Coverages Available Under A Florida Motor Vehicle Insurance Policy

car-insurance-policy.jpgEvery owner or registrant of an operable personal use motor vehicle is required to maintain only two types of insurance coverage in Florida: Personal Injury Protection and Property Damage - Liability. See Florida Statute 627.733 Required security. Nevertheless, other types of coverage are available under every policy written in Florida. While there's an additional premium cost associated with each different coverage, the benefits are valuable. For example, a person who has minimum coverage (PIP and Property Damage Liability) only, can still have his or her driving privileges suspended where their fault has caused someone else to sustain personal injuries. We are strong advocates for Bodily Injury and Unininsured/Underinsured Motorist insurance at substantial limits.

Personal Injury Protection (PIP).
This coverage is outlined in Florida Statute 627.736. For accidents that happen in Florida, PIP covers the named insured, relatives residing in the same household, persons operating the insured motor vehicle, passengers in such motor vehicle, and other persons struck by such motor vehicle and suffering bodily injury while not an occupant of a self-propelled vehicle. For accidents that happen outside Florida but inside the U.S. or Canada, PIP covers you and relatives who live in your home. In this case, you must be driving your own vehicle. Persons other than you or your relatives are not covered. PIP pays:

  • 80 percent of reasonable medical expenses related to the accident

  • 60 percent of lost wages as a result of the accident

  • $5,000 for death benefits
The typical policy limit is $10,000 per person, subject to a deductible of up to $2,000.

Property Damage Liability (F.S. 324.022). This insurance pays for damage you, or members of your family, cause to another person's property while driving. The term "property" includes, for example, a fence, telephone pole or building, as well as another car. Coverage applies even if you drive someone else's car. Depending on the terms and conditions of your policy, it may also include anyone else who uses your car with your permission. The minimum policy limit is $10,000.

Bodily Injury Liability (BI) (324.021). is generally not required in Florida. However, if you have been convicted of a DUI, BL is required for a period of three years after your license has been reinstated. If you were convicted on or before October 1, 2007, you must get a minimum of $10,000 worth of coverage per person and $20,000 worth of coverage per incident. If you were convicted after October 1, 2007, you must have $100,000 worth of coverage per person and $300,000 worth of coverage per accident.

BI pays for serious and permanent injury or death to others when your car is involved in an accident, and the driver of your car is found to be at fault to some extent. This policy pays for injuries caused by you and relatives who live with you, even if they are driving someone else's car. It also covers people who drive your car with your permission. BI coverage applies only after PIP benefits are exhausted. With this type of policy, the insurance company will also pay for your legal defense if you are sued. The minimum coverage limit is $10,000 per person/$20,000 per accident. The maximum can be in the millions. Umbrella coverage is an option to increase the coverage limit.

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February 17, 2014

The Essential Role of the Personal Representative in Florida Wrongful Death Act Cases

funeral.jpgFlorida's Wrongful Death Act is the blueprint for who can be compensated when the death of a person is caused by the wrongful act, negligence, default, or breach of contract or warranty of any person or corporation. The Act refers to those who are eligible for compensation as "survivors." See F.S. 768.18(1).

Actions under the Act shall be brought by the decedent's personal representative, who shall recover for the benefit of the decedent's survivors and estate all damages, as specified in the Act, caused by the injury resulting in death. F.S. 768.20.

The PR can be a survivor. While this may seem like a conflict of interest, with the PR seemingly in a position of advantage, the courts are equipped to prevent problems. The PR has a 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).

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February 3, 2014

Undermining Defense Doctor Concerning Cause of Herniated Intervertebral Disc

surgeon-3-391477-m.jpgHerniated intervertebral discs can have significant medical and legal consequences. The symptoms of a herniated disc can range from minor pain all the way up to unbearable, unremitting pain, paresthesia, and numbness. Treatment options include palliative medicine, physical therapy, epidural injections, and surgery. Each of these option can be costly and none is guaranteed effective. A herniated disc can also limit one's ability to work.

Discs herniate through degeneration, a lengthy process, and acute trauma. A disc compromised by degeneration is more likely to herniate from trauma than one that is not. The personal injury and workers' compensation legal systems do not compensate for herniations caused by degeneration only. They are supposed to compensate for herniations caused solely by trauma, and will sometimes compensate for herniations superimposed on degeneration, referred to as an aggravation of a preexisting condition. (For an understanding of how the two systems handle aggravation injuries, consider Florida Standard Jury Instruction 501.5a, for civil cases, and this article, for workers' compensation.

In civil cases, a defendant responsible for causing a herniated disc can be liable in damages which include medical expenses, lost wages (past and future), and pain & suffering (also known as non-economic damages). In workers' compensation, the employer/carrier can be liable for medical expenses and lost wages; compensation for pain & suffering is not available in the workers' compensation system.

The costs associated with a herniated disc can be significant, even in the hundreds of thousands where a spinal fusion is involved. As a result, civil defendants and workers' compensation employers/carriers fight to limit their financial exposure.

A common defense method is to use doctors who will testify to one or more of the following:

  • There isn't a herniation

  • If there is a herniation, it was not caused by the accident (e.g., it preexisted the accident)

  • The herniation is asymptomatic or not causing the level of pain being complained of by the Plaintiff/Claimant

  • The various treatment options, including surgery, are not indicated now or in the future

  • The herniation should not prevent the Plaintiff/Claimant from working full duty
The defense doctor's testimony must be challenged. As with the questioning of any expert under oath, the most important rule is to be prepared. For me, at least, that means going over the doctor's report with a fine tooth comb for weaknesses and inconsistencies, keeping in mind that what isn't said is often as telling as what is said. At the beginning, I may feel stumped. However, with enough thought, even of the subconscious type, something always comes to mind. This is why I like to begin the process well in advance of the interrogation. Digesting and mulling works wonders.

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January 22, 2014

Surprising Application of Uninsured/Underinsured Motorist (UM) Crash Coverage for Florida Insureds

puzzle2.jpgUnderstanding Florida motor vehicle insurance law can be puzzling. The various coverage options include Personal Injury Protection (PIP), Bodily Injury (BI), Comprehensive/Collision, Property Damage Liability, and Uninsured/Underinsured Motorist (UM/UIM). Presently, only PIP and Property Damage Liability are mandatory in Florida. Neither of these coverages compensates the victim of an accident for non-economic damages like pain and suffering arising from a bad injury. Only two of the coverages do: BI and UM.

UM is typically thought of as coverage purchased for the benefit of the named insured or insureds and resident relatives (see definition at Florida Statute 627.732(6)). It takes the place of BI where BI is not available (UM) or not adequate (UIM) because the loss exceeds available coverage limits. UM/UIM are not thought of as providing coverage to those other than named insureds and resident relatives. This thinking is incorrect.

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January 14, 2014

Social Media Posts Fair Game in Civil Litigation

laptop-work-1260785-m.jpgParties to legal actions should always assume that their social media (e.g., Facebook; Twitter) postings will be discovered (discovery is allowed by FRCP 1.350; Discovery of Facebook Content in Florida Cases, 31 No. 2 Trial Advoc. Q 14 (Spring 2012)) and used against them by the other side if helpful. Postings can be used to contradict assertions made in a legal case and sometimes lead to the outright dismissal of actions by the court based on fraud.

However, hurdles must be overcome to get postings into evidence. Among the hurdles:

Finding and Preserving the Social Media Evidence

  • Once we find useful postings by surfing the Internet, we save link addresses, print pages, and take iPad screen shots by simultaneously pressing both of the device's power switches.

  • Preservation of evidence letters can also be sent to those who own and or control the site to prevent spoilation of the evidence through the innocent or purposeful removal of content. Surprisingly, parties are not obligated to preserve evidence without a specific request. See, Osmulski v. Oldsmar Fine Wine, Inc., So.3d , 37 FLW D1578 (Fla. 2nd DCA 6-20-2012).

  • Formal discovery, pursuant to FRCP 1.310, 1.340, and 1.350, can be used to identify websites with potentially valuable information. Request from the respondent: websites the respondent uses to communicate with others; website account information such as account holder and user name; respondent's email addresses, phone number, home address; printouts of account information and screen shots.

  • Subpoenas can also be issued to website administrators, like Facebook and Twitter. (The particular knotty issues involved in gathering information from administrators is beyond the scope of this blog.)

  • Another source of information is the Wayback Machine. This is a service that allows people to surf more than 150 billion pages in the Internet Archive's Web archive.
Legal Hurdles

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December 31, 2013

Florida's Workers' Compensation Statute Perpetrates Taxpayer Ripoff

greed2.jpgFlorida workers severely injured at work sometimes qualify for both workers' compensation permanent total disability benefits (PTD) (F.S. 440.15(1)) and social security disability benefits (SSD) (42 U.S.C. s. 423).

The Florida workers' compensation system, codified in Chapter 440 of Florida's statutes, sets forth the responsibilities of employers and their workers' compensation insurance companies (E/C) to injured workers. Workers whose injuries permanently prevent them from being gainfully employed are entitled to receive 66-2/3% of their average weekly wage (AWW) (440.14) from employers/carriers until age 75. These same individuals sometimes also qualify for SSD, which includes a monthly payment, when they are similarly permanently unable to work. (SSD converts to Social Security Retirement benefits at full retirement age -- 66 if born after 1942, 67 if born after 1960.) SSD is paid by taxpayers.

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