December 11, 2014

Florida Premises Liability Law: What is a Foreseeable Crime?

people.jpgThe foreseeability of a harmful event is an essential element of every personal injury case. McCain v. Florida Power Corporation, 593 So. 2d 500 (Fla. 1992). This includes premises liability cases involving crimes such as rape, assault, and robbery committed by third parties.

Florida courts consider three primary factors in deciding if prior crimes by other criminals make the eventual crime foreseeable:

  • Similarity of the prior crimes

  • Geographical proximity of the prior crimes

  • Temporal proximity of the prior crimes

Because the Florida Supreme Court has yet to come down definitively on how to analyze the factors, the outcome depends on where the event occurred.

Personal injury jury trials take place in circuit courts. Florida has twenty judicial circuits, grouped by county, in which these trial courts are located. For example, Miami-Dade County is in the Eleventh Judicial Circuit by itself, while the Third Judicial Circuit consists of Columbia, Dixie, Hamilton, Lafayette, Madison, Suwannee, and Taylor counties. Generally, a lawsuit may be brought only in the county where the defendant resides, where the cause of action accrued, or where the property in litigation is located. Section 47.011, Florida Statutes (2014) and Brown v. Nagelhout, 84 So.3d 304 (2012).

Most appeals from circuit courts are first handled by a District Court of Appeal. There are five District Courts of Appeal in Florida, composed of the various judicial circuits. For example, the Third DCA is responsible for appeals arising from Miami-Dade County and Monroe County circuit courts.

Here's how the DCAs address the factors:

SIMILARITY OF THE PRIOR CRIMES

  • Narrow test -- prior crimes must be similar to the one at issue. Third DCA, Medina v. 187th St. Apartments, Ltd., 405 So. 2d 485 (Fla. 3d DCA 1981) (reversing directed verdict for defendant because of disputed facts, but requiring a showing of prior similar crimes (assault); Ameijeiras v. Metro Dade County, 534 So. 2d 812, at 812 (Fla. 3d DCA 1988) (discounting evidence of rampant illegal activities on the subject premises due to the absence of prior similar crimes (assault and robbery)); Levitz v. Burger King Corp., 526 So. 2d 1048 (Fla. 3d DCA 1988) (reversing summary judgment for defendant because of disputed facts, but requiring a showing of prior similar crimes (assault)); Metro. Dade County v. Ivanov, 689 So. 2d 1267 (Fla. 3d DCA 1997); Prieto v. Miami-Dade County, 803 So. 2d 780 (Fla. 3d DCA 2001) (requiring evidence of prior similar crimes (assault).

  • Broad test -- allowing prior dissimilar crimes into evidence to prove foreseeability: First DCA, Hardy v. Pier 99 Motor Inn, 664 So. 2d 1095, 1098 (Fla. 1st DCA 1995) (citing Shelburne and Paterson v. Deeb, 472 So. 2d 1210, 1215 (Fla. 1st DCA 1985). But see Menendez v. The Palms West Condo. Ass'n, Inc., 736 So. 2d 58, 61 (Fla. 1st DCA 1999) (rejecting evidence of prior dissimilar crimes as irrelevant to foreseeability), Second DCA, Bellevue v. Frenchy's South Beach Café, Inc., 136 So. 3d 640 (Fla. 2d DCA 2013), Fourth DCA, Holiday Inns, Inc. v. Shelburne, 576 So. 2d 322, 331 (Fla. 4th DCA 1991) (citing Czerwinski and Paterson), disapproved on other grounds, Angrand v. Key, 657 So. 2d 1146 (Fla. 1995); Prime Hospitality Corp. v. Simms, 700 So. 2d 167, 169 (Fla. 4th DCA 1997) (holding that evidence of dissimilar crimes should go to a jury); and the Fifth DCA, Foster v. Po Folks, Inc., 674 So. 2d 843, 844-46 (Fla. 5th DCA 1996).

Continue reading "Florida Premises Liability Law: What is a Foreseeable Crime?" »

December 11, 2014

Twist on Medical-Only Attorney's Fees Under Florida Statute 440.34(3)(a)

doctor.jpgA Judge of Compensation Claims (JCC) recently denied our firm a stipulated carrier-paid attorney's fee under the so-called medical-only section of Florida Statute 440.34. The judge rejected the stipulation because a claim for Permanent Total Disability (440.15(1)) was pending when we filed a claim for psychiatric care. The judge misread the statute.

440.34(3)(a) provides as follows:

(3) If any party should prevail in any proceedings before a judge of compensation claims or court, there shall be taxed against the nonprevailing party the reasonable costs of such proceedings, not to include attorney's fees. A claimant is responsible for the payment of her or his own attorney's fees, except that a claimant is entitled to recover an attorney's fee in an amount equal to the amount provided for in subsection (1) or subsection (7) from a carrier or employer:

(a) Against whom she or he successfully asserts a petition for medical benefits only, if the claimant has not filed or is not entitled to file at such time a claim for disability, permanent impairment, wage-loss, or death benefits, arising out of the same accident.

The judge relied on the words, "has not filed," without considering the qualifying language, "at such time."

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November 28, 2014

Florida Motor Vehicle Insurance Premium Increases and Policy Non-Renewals Law

car-insurance-policy.jpgRisk and exposure drive insurance premiums. The greater the risk and exposure, the higher the premium. Period.

In the vernacular of this blog, risk and exposure have different meanings. Risk represents the chance of something happening, while exposure represents the consequences after that something happens. Premiums are set based on both: A high risk driver pays more than a low risk driver, and the higher the coverage limits, the higher the premium.

Our vehicle crash clients often question if their insurance rates will rise or they will be dropped from coverage if they make a claim under their own policy when they are not at fault. The type of benefits typically claimed include PIP, property damage - collision, car rental, and UM/UIM.

While the simple answer would seem to be No, Florida law is not quite as definitive. We'll analyze it here.

Section 626.9541 is the Florida statute that addresses the issues. In pertinent part it reads:

626.9541 Unfair methods of competition and unfair or deceptive acts or practices defined.--

(1) UNFAIR METHODS OF COMPETITION AND UNFAIR OR DECEPTIVE ACTS.--The following are defined as unfair methods of competition and unfair or deceptive acts or practices:

(o) Illegal dealings in premiums; excess or reduced charges for insurance.--

3.a. Imposing or requesting an additional premium for a policy of motor vehicle liability, personal injury protection, medical payment, or collision insurance or any combination thereof or refusing to renew the policy solely because the insured was involved in a motor vehicle accident unless the insurer's file contains information from which the insurer in good faith determines that the insured was substantially at fault in the accident.

b. An insurer which imposes and collects such a surcharge or which refuses to renew such policy shall, in conjunction with the notice of premium due or notice of nonrenewal, notify the named insured that he or she is entitled to reimbursement of such amount or renewal of the policy under the conditions listed below and will subsequently reimburse him or her or renew the policy, if the named insured demonstrates that the operator involved in the accident was:

(I) Lawfully parked;

(II) Reimbursed by, or on behalf of, a person responsible for the accident or has a judgment against such person;

(III) Struck in the rear by another vehicle headed in the same direction and was not convicted of a moving traffic violation in connection with the accident;

(IV) Hit by a "hit-and-run" driver, if the accident was reported to the proper authorities within 24 hours after discovering the accident;

(V) Not convicted of a moving traffic violation in connection with the accident, but the operator of the other automobile involved in such accident was convicted of a moving traffic violation;

(VI) Finally adjudicated not to be liable by a court of competent jurisdiction;

(VII) In receipt of a traffic citation which was dismissed or nolle prossed; or

(VIII) Not at fault as evidenced by a written statement from the insured establishing facts demonstrating lack of fault which are not rebutted by information in the insurer's file from which the insurer in good faith determines that the insured was substantially at fault.

c. In addition to the other provisions of this subparagraph, an insurer may not fail to renew a policy if the insured has had only one accident in which he or she was at fault within the current 3-year period. However, an insurer may nonrenew a policy for reasons other than accidents in accordance with s. 627.728. This subparagraph does not prohibit nonrenewal of a policy under which the insured has had three or more accidents, regardless of fault, during the most recent 3-year period.

4. Imposing or requesting an additional premium for, or refusing to renew, a policy for motor vehicle insurance solely because the insured committed a noncriminal traffic infraction as described in s. 318.14 unless the infraction is:
a. A second infraction committed within an 18-month period, or a third or subsequent infraction committed within a 36-month period.
b. A violation of s. 316.183, when such violation is a result of exceeding the lawful speed limit by more than 15 miles per hour.

10. Imposing or requesting an additional premium for motor vehicle comprehensive or uninsured motorist coverage solely because the insured was involved in a motor vehicle accident or was convicted of a moving traffic violation.

12. No insurer shall impose or request an additional premium, cancel a policy, or issue a nonrenewal notice on any insurance policy or contract because of any traffic infraction when adjudication has been withheld and no points have been assessed pursuant to s. 318.14(9) and (10). However, this subparagraph does not apply to traffic infractions involving accidents in which the insurer has incurred a loss due to the fault of the insured.

ANALYSIS
  • Rate increases and nonrenewals on policyholders not at fault are prohibited.
  • Nonrenewing a policy is prohibited if the insured has had only one accident in which he or she was at fault within the current 3-year period. Interestingly, the statute does not appear to prohibit a rate increase in this scenario.
  • Policyholders can challenge increases and nonrenewals based on fault by demonstrating a lack of fault through a variety of outlined indicia.
  • The insurer is not prohibited from nonrenewing a policy when the insured has had three or more accidents during the most recent 3-year coverage period regardless of fault. The insurer can do this even if a claim has not been made against the policy.
  • Insurers are allowed to seek additional premiums and nonrenew policies for an accumulation of noncriminal traffic infractions.
  • Insurers are not allowed to increase rates and nonrenew motor vehicle comprehensive and uninsured motorist coverages solely because the insured was involved in a motor vehicle accident or was convicted of a moving traffic violation. This is sensible because the insured as a risk factor is not relevant in setting rates for these coverages. Neither comprehensive nor UM/UIM are triggered by the insured's fault.
  • The insurer may not raise rates or nonrenew if adjudication because of a traffic infraction has been withheld and no points have been assessed. However, the insurer may increase and cancel if it has incurred a loss due to the insured's fault in an accident. It is not unusual for an insured to beat a ticket or have adjudication and points withheld, yet have the carrier pay for accident related damages. This is because the outcome of an infraction in traffic court does not control the insured's civil liability. Read this blog.
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Contact us toll free at 866-785-GALE or by email (jeffgalelaw@bellsouth.net) for a free, confidential consultation to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals - the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are "people" and not "cases" or "files." We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

November 11, 2014

Florida Personal Injury Law: Use Prior Medicals to Prove Damages

cube.jpgClaiming that the plaintiff's injuries are preexisting is a favorite defense tactic. Less responsibility for them. Some injuries, like herniated intervertebral discs and torn or frayed shoulder tendons, are extremely susceptible to this tactic. The defense argument is that the conditions are the result of natural aging and/or prior accidents.

Whenever possible, we like to counter this tactic by presenting prior medical records that are silent with regard to complaints similar to those for which we are seeking compensation. While this strategy may not eliminate entirely the preexisting condition argument, at the very least it shows that any such preexisting condition was aggravated in the accident. Florida law authorizes compensation for aggravation. See C. F. Hamblen, Inc. v. Owens, 172 So. 694 (Fla. 1937) and Florida Standard Jury Instruction 501.5a.

One of our recent cases demonstrates the point. Between September, 2013 and March, 2014, our client was involved in three separate motor vehicle accidents. While the third was the most serious, she sought medical treatment from the same board certified orthopedist for neck and back pain in all three. The doctor ordered cervical and lumbar MRIs to assist in diagnosing her injuries.

Continue reading "Florida Personal Injury Law: Use Prior Medicals to Prove Damages" »

November 7, 2014

Florida Personal Injury Law -- No Substitute for Solid Pretrial Discovery

pinoccio.jpgThe Florida Rules of Civil Procedure outline the various ways in which parties to a lawsuit can discover information before trial. The most popular discovery vehicles are depositions, interrogatories, and requests for admissions. While these vehicles often help parties prove their case, they can serve another important function of impeaching inconsistent testimony.

Actual Example
We are three weeks before the start of trial in a premises liability case against a condominium association and a general contractor. Our client, a 78 year old woman, sustained serious injuries, including a broken humerus, when she fell into a hole at night in a wood deck under repair. The deck ran behind a line of townhomes. Our client was a guest at a party at one of the townhomes when she decided to take a stroll on the deck. The portion of the deck where she started out and for some fifty feet to the west had been repaired months before. The accident happened where the finished deck met the deck under repair. The hole into which she fell was created by the general contractor who had removed the old boards with the intent of replacing them.

Continue reading "Florida Personal Injury Law -- No Substitute for Solid Pretrial Discovery" »

October 21, 2014

The Perfect Storm is Here -- Drastic Changes Likely in Florida's Workers' Compensation System

Since at least 2002, when Jeb Bush and a super-majority of Republicans passed legislation eliminating important workers' rights, Florida's workers' compensation system has been unfair and unbalanced. One circuit court judge has declared it unconstitutional -- Florida's Workers' Compensation System Unconstitutional, So Says 11th Circuit Court Judge Jorge Cueto.

The time is approaching when the Florida Supreme Court may agree with Judge Cueto.

Not surprisingly, the good Judge Cueto's ruling has been appealed by Florida Attorney General Pam Biondi -- There She Goes Again -- Pam Bondi, Florida's Attorney General, Appeals Workers' Compensation Ruling. It will likely be years before this case works it way to resolution through the appellate process. If the Republican-dominated Florida Legislature were smart, instead of so cravenly selfish and greedy, it would replace the current system with a fair and balanced workers' compensation system to avoid the Armageddon surely to follow if the system is declared unconstitutional. Good luck with that.

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October 19, 2014

Florida Personal Injury Law: Exercise Your Right to Remain Silent

silence1.jpgIn Miranda v. Arizona, the Supreme Court of the United States established a formal warning that is required to be given by police in the United States to criminal suspects in police custody (or in a custodial situation) before they are interrogated. The court ruled that the person in custody must be informed that he/she has the right to remain silent, and that anything the person says can be used against the person in a court of law. What developed from the ruling is the well-known "Miranda Warning":

"You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?"
Even though the Miranda Warning only applies to criminal suspects, potential personal injury civil litigants should consider the wisdom of remaining silent until receiving the advice of counsel. The alternative is to risk saying something that will harm the civil case.

Fault and damages are key components of every personal injury case. Limiting both is the primary objective of every liability insurance company. Adjusters, investigators, and lawyers are employed to this end from the very beginning of a reported claim. They will quickly reach out for information from witnesses and victims for the purpose of obtaining incriminating and exculpatory evidence to limit their exposure. What a victim says to these people can be used against him/her in and out of court.

(Read this blog, Limited Application of Florida's Motor Vehicle Accident/Crash Report Privilege, for the confidentiality of statements given to motor vehicle crash investigators.)

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September 30, 2014

There She Goes Again -- Pam Bondi, Florida's Attorney General, Appeals Workers' Compensation Ruling

Once again Pam Bondi, Florida's Teabagging Attorney General, has decided to waste the taxpayer's money on another anti-decency crusade. Consistent with her opposition to Gay marriage, government in the Sunshine, the Affordable Care Act, and medical marijuana, the twice-divorced Attorney General has chosen to appeal the August 13, 2014 ruling of 11th Circuit Court Judge Jorge Cueto declaring Florida's workers' compensation system in violation of both the Florida and U.S. constitutions as no longer providing a "reasonable alternative" to the tort system for workers seeking recompense for job related injuries. See this blog: Florida's Workers' Compensation System Unconstitutional, So Says 11th Circuit Court Judge Jorge Cueto.

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September 28, 2014

Florida Medical Malpractice Law: Exceptions to Non-Liability of Hospitals for the Medical Negligence of Independent Contractors

hospital.jpgMost people are surprised to learn that most hospital emergency room physicians are not hospital employees. Instead, they are independent contractors.

"An independent contractor is a natural person, business, or corporation that provides goods or services to another entity under terms specified in a contract or within a verbal agreement. Unlike an employee, an independent contractor does not work regularly for an employer but works as and when required, during which time he or she may be subject to law of agency. Independent contractors are usually paid on a freelance basis. Contractors often work through a limited company or franchise, which they themselves own, or may work through an umbrella company."

The general rule is that a hospital is not liable for the negligent acts of a physician who is not its employee, but an independent contractor. See Newbold-Ferguson v. Amisub (North Ridge Hosp., Inc.), 85 So.3d 502 (Fla. 4th DCA 2012), Shands Teaching Hosp. & Clinic, Inc. v. Juliana, 863 So.2d 343, 349 (Fla. 1st DCA 2003); see also Pub. Health Trust of Dade Cty. v. Valcin, 507 So.2d 596, 601 (Fla.1987).

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September 18, 2014

Florida Personal Injury Law: Non-Delegable Duty Creates Joint & Several Liability

joint & several.jpgBy amending §768.81 Florida Statues, the Florida Legislature eliminated, effective 2006, the application of joint and several liability in most personal injury cases. Under the joint and several doctrine, in cases involving multiple defendants each negligent defendant was wholly responsible financially for the negligence of every other defendant. This concept especially benefited plaintiffs where one or more negligent defendant did not have the financial means to satisfy its share of the damages awarded, while one or more other defendants had the means to satisfy the entire award.

The doctrine was replaced by the comparative fault doctrine. Under this doctrine, each defendant's share of liability was limited to its allocated percentage of fault. For example, if each of three defendants was found one-third at fault, the most any one of the three would be responsible for paying is one-third of the total damage award. If the total damage award was $1,000,000, the most any one of the three defendants would have to pay is $333,333.33. If the others could not afford to pay their shares, the injured Plaintiff would simply not be fully compensated. In comparison, under the joint and several doctrine each one of the three would be liable for the full measure of damages. If, for example, one of the defendants was the Coca-Cola company and the other two were poor deadbeats without adequate insurance coverage, Coca-Cola would be on the hook for the full amount. Coca-Cola would have a right to go after the other defendants to recoup some of the money it paid.

By scuttling joint and several liability, the Republican Legislature, with the full backing of then Governor Jeb Bush, shifted the burden of loss from insurance companies and large corporations onto injured victims.

While joint and several liability does not apply in most post-April, 2006 personal injury cases, it remains a viable legal doctrine in cases where an independent contractor has breached a non-delegable duty. The most common scenario involves a property owner who hires one or more independent contractors to perform maintenance and security in and around a property, like a shopping mall. If a person rightfully on the property is injured by the negligent performance by the independent contractor, the independent contractor and the property owner are jointly and severally liable. This has long been the law in Florida:

"The law imposes on hotels, apartments, innkeepers, etc., the duty to keep their buildings, premises and appliances in a condition reasonably safe for the use of their guests, or at least those parts of the buildings and premises to which the guest are invited and may reasonably be expected to use. The duty of maintaining safe premises cannot be delegated to another."
Goldin v. Lipkind, 49 So.2d 539, 541 (Fla. 1950) (emphasis added). Moreover, this is a well-established principle of law recognized throughout the country. W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 71, at 511-12 (5th ed. 1984).

Continue reading "Florida Personal Injury Law: Non-Delegable Duty Creates Joint & Several Liability" »

September 3, 2014

Florida's Workers' Compensation System Unconstitutional, So Says 11th Circuit Court Judge Jorge Cueto

moses.jpgIn 1935, Florida first enacted a workers' compensation system for the state's employers and employees. The idea was to provide a greater degree of fairness and certainty for each. The primary advantage for employers was the immunity from most personal injury lawsuits, making it easier to anticipate expenses, while employees would receive benefits without first having to prove negligence against the employer. It was a model patterned on similar systems adopted in other states. Both sides gained, both sides lost, but the overall outcome was positive.

That is, until greed began to creep into the system. It didn't take long.

Through legislative might, business interests soon began to whittle away at workers' rights and benefits. From time to time, the courts slowed and reversed the erosion, but workers could do little in the long run to resist the rising tide of selfishness and greed.

Not surprisingly, the high mark of this tide of selfishness and greed came during Jeb Bush's reign as Florida's governor. Taking a page from his big brother George's system in Texas, Jeb spearheaded efforts to gut Florida's workers' compensation system. 2002's legislative session broke the system. Benefits were slashed and injured workers were denied the right to effective legal counsel.

Jeb received champagne toasts in boardrooms from Key West to northwest Florida. Mission Accomplished!

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August 31, 2014

Personal Injury Lawyers Should Take Medicare Liens Seriously

There was a time when few personal injury lawyers gave a moments thought to satisfying liens when wrapping up personal injury cases. Medicare liens, most especially.

Woe is the fate of the personal injury lawyer who operates that way today.

Medicare is a federal program that provides medical insurance to qualified elderly and disabled persons. However, with regard to medical expenses for which a third party (e.g., tortfeasor) bears responsibility, it is a secondary payer. 42 U.S.C. § 1395y(b)(2). While Medicare will cover medical expenses in personal injury cases, it has the legal right to be reimbursed from the proceeds of third party payments.

42 U.S.C. §1395y(b)(2)(B)(ii) provides:

A primary plan, and an entity that receives payment from a primary plan, shall reimburse the appropriate Trust Fund for any payment made by the Secretary under this subchapter with respect to an item or service if it is demonstrated that such primary plan has or had a responsibility to make payment with respect to such item or service. A primary plan's responsibility for such payment may be demonstrated by a judgment, a payment conditioned upon the recipient's compromise, waiver, or release (whether or not there is a determination or admission of liability) of payment for items or services included in a claim against the primary plan or the primary plan's insured, or by other means.
The government takes its reimbursement rights seriously and is willing to pursue trial lawyers who ignore Medicare's interest. In U.S. v. Harris, No. 5:08CV102, 2009 WL 891931 (N.D. W.Va. Mar. 26, 2009), aff'd 334 Fed. Appx 569 (4th Cir. 2009), a personal injury plaintiff lawyer had settled a claim for a Medicare beneficiary for $25,000. Medicare had made conditional payments in the amount of $22,549.67. After settlement, plaintiff's counsel sent Medicare the details of the settlement, and Medicare calculated they were owed approximately $10,253.59 out of the $25,000. Plaintiff's counsel failed to pay this amount, and the government filed suit. Plaintiff's counsel argued that his only obligation to the government was to notify it of the settlement amount. The court disagreed. The court pointed out that the government may, under 42 U.S.C. §1395y(b)(2)(B)(iii), "recover under this clause from any entity that has received payment from a primary plan or from the proceeds of a primary plan's payment to any entity." Further, the court pointed to the federal regulations implementing the MSPS (Medicare Secondary Payer), which state that CMS has a right of action to recover its payments from any entity, including an attorney. Ultimately, a judgment was entered against the attorney in the amount of the lien plus interest.

Continue reading "Personal Injury Lawyers Should Take Medicare Liens Seriously" »

August 13, 2014

Will Jeb Bush/Right-Wing Extremism be the Straw that Breaks the Back of Florida's Workers' Compensation System?

scales of justice.jpgInjured workers have experienced a steady erosion of their rights under Florida's workers' compensation system since its inception in 1935. Some periods have seen greater losses than others. None, however, were as ugly as the Jeb Bush years, when he served as the 43rd Governor of Florida from 1999 to 2007, along with a Republican-controlled House and Senate. Together, they happily gutted the system.

After years of injustice and suffering, the chickens may be coming home to roost.

Before Florida had a workers' compensation system, in order for an injured worker to receive lost wages and medical benefits, he or she was burdened with proving employer-fault caused the accident. This was a time-consuming and always difficult burden, made more tenuous by legal principles that barred any recovery if the worker - contributory fault - or a fellow servant were even slightly at fault, or the employee accepted the dangers of hazardous employment. This system, a form of common law negligence, saw most injured workers go without ever receiving benefits. The system also proved unwieldy to employers, who were regularly tied up in lawsuits and could not reasonably predict their exposure.

Continue reading "Will Jeb Bush/Right-Wing Extremism be the Straw that Breaks the Back of Florida's Workers' Compensation System? " »

August 3, 2014

Florida's Adult Protective Services Act (Elder Abuse Statute) a Narrow Path Around Medical Malpractice Wrongful Death Exemption

magicians-hat-969631-m.jpg"Rabbit from a hat." That's the description I have given to a case we recently handled with Domnick & Shevin PL.

I have blogged extensively about the indecent and dangerous immunity afforded medical providers under Florida's wrongful death statute. (Gigantic Loophole in Florida's Wrongful Death Act; Florida Wrongful Death Survivors Chart -- Back by Popular Demand; Doctors Skirt Fault Under Florida's Wrongful Death Act; Florida's Wrongful Death Act Fosters Better-Dead-Than-Alive Philosophy In Medical Malpractice Cases.)

We found a way around the statutory immunity ... sort of.

Section 768.21(8) of Florida's Wrongful Death Act exempts medical providers from liability where the decedent dies without leaving behind a surviving spouse or minor children. Our office receives a stream of inquiries from adult children and the siblings of senior citizens whose deaths resulted from medical malpractice. Frequently, we are not the first law firm they have contacted. They have been informed that Florida law precludes a recovery. Very often, all we can do is confirm the bad news. Shock, dismay, and anger towards the system typically follow.

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July 13, 2014

Tort "Deform" Perpetrated by Right Wing to Deny Individuals of Constitutional Rights

scales of justice.jpgCorporate America has campaigned for more than thirty years to brainwash average people into believing that America's civil justice system is a bad thing. Sadly, the campaign has worked, fostering views contrary to one of the most fundamental principle on which America was founded: that the courts are to be a neutral forum in which the small can take on the big. Reference: We the People.

The purpose of this blog is to build a resistance to the propaganda through education. Ignorance is not bliss when basic civil rights hang in the balance.

What is the civil justice system? It is the system individuals and corporations use for redressing alleged wrongs. The fundamental components of the system are judges, juries, and lawyers.

What is a "tort"? A tort is harm caused intentionally or by negligence. The best known torts involve personal injuries, but can include other types of damages. The aggrieved party, the Plaintiff, sues the Defendant, for monetary damages.

Aren't these personal injury or "tort" lawsuits flooding the courts? No. Tort cases make up only 6 percent of the entire civil court caseload and they are decreasing. The National Center for State Courts shows a 21 percent decline in tort filings from 1996 to 2005. Richard LaFountain et al., Examining the Work of State Courts: A National Perspective from the Court Statistics Project (National Center for State Courts 2009) at 1, 2. (The Court Statistics Project is a joint project of the Conference of State Court Administrators, the U.S. Department of Justice's Bureau of Justice Statistics and the National Center for State Courts.)


  • Only 10 percent of injured Americans ever file a claim for compensation, which includes informal demands and insurance claims. Only two percent file lawsuits. David A. Hyman and Charles Silver, "Medical Malpractice Litigation and Tort Reform: It's the Incentives, Stupid,"59 Vand. L. Rev. 1085, 1089 (May 2006) (citing Thomas F. Burke, Lawyers, Lawsuits, and Legal Rights: The Battle over Litigation in American Society 3 (2002));Rand Institute for Civil Justice, Compensation for Accidental Injuries in the United States (1991).

  • Academics generally concede there is no evidence that "frivolous" lawsuits are a problem.

  • In 1999, the Institute of Medicine (IOM) concluded that between 44,000 and 98,000 Americans die each year (and 300,000 are injured) due to avoidable medical errors in hospitals alone. Yet eight times as many patients are injured as ever file a claim; 16 times as many suffer injuries as receive any compensation. The Harvard School of Public Health closely examined 1,452 closed claims and concluded that "[p]ortraits of a malpractice system that is stricken with frivolous litigation are overblown." David M. Studdert et al., "Claims, Errors, and Compensation Payments in Medical Malpractice Litigation," New England Journal of Medicine, May 11, 2006. The study found that most injuries resulting in claims were caused by medical error, and that those that weren't were, nevertheless, not "frivolous" claims.

  • In 2005, tort jury and bench trials together constituted 1.3 percent of all general civil dispositions in 79 jurisdictions reporting and 3.5 percent of all tort dispositions in 104 jurisdictions reporting.

What is "tort reform"? This term refers to laws that benefit the corporate sector. These laws make it more difficult for injured people to sue in civil court, or limit the power of judges and juries to make decisions in tort cases. (See these examples: 2010 Florida Legislature Further Curtails the Rights of Medical Malpractice Victims; Vehicle Owners - Other Than Rental Agencies - Vicariously Liable Under Florida Law.)

But isn't it easy to "win" money in a lawsuit by forcing the other side (usually an insurance company) to settle? No. Insurance companies do not settle frivolous cases. For example, Duke University Law Professor Neil Vidmar found in his research: "In interviews with liability insurers that I undertook in North Carolina and other states, the most consistent theme from them was: 'We do not settle frivolous cases!' The insurers indicated that there are minor exceptions, but their policy on frivolous cases was based on the belief that if they ever begin to settle cases just to make them go away, their credibility will be destroyed and this will encourage more litigation."

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