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).

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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.

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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.

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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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July 13, 2014

Florida Personal Injury Law: Alcohol Use as Evidence of Negligence

drunk.jpgThere is a reason why the following inquiry is a standard interrogatory for personal injury cases in the Florida Rules of Civil Procedure:

Did you consume any alcoholic beverages or take any drugs or medications within twelve hours before the time of the incident described in the complaint? If so, state the type and amount of alcoholic beverage, drugs or medication which were consumed and when and where you consumed them.
While excessive alcohol consumption can support a claim for punitive damages -- see this blog:, Special Considerations in Florida Motor Vehicle Crash Cases Involving Alcohol (DUI) -- evidence of alcohol use, even short of "voluntary intoxication," can be relevant to the issue of simple negligence. It's application is not limited to vehicle accident cases.

The Florida Supreme Court decided long ago that evidence of a person being under the influence of intoxicants at the time of an automobile collision is admissible, on the theory that a driver so exhilarated is likely to be abnormally reckless. Taylor v. State, 46 So.2d 725 (Fla., 1950). It is valuable and useful to corroborate or render more likely, evidence that is doubtful or disputed. Smith v. State, 65 So.2d 303 (Fla., 1953).

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July 3, 2014

Florida Personal Injury Law: Duty Opens the Courthouse Doors

Every personal injury plaintiff must plead and prove that the defendant owed and breached a duty of care and that the breach proximately (i.e., foreseeably and substantially) contributed to the specific injury suffered. These are the prima facie elements of a personal injury case.

Whether a duty exists is a matter of law for the court (judge) to determine rather than a factual question for the jury. The duty element of negligence focuses on whether the defendant's conduct foreseeably created a broader "zone of risk" that poses a general threat of harm to others. See Kaisner v. Kolb, 543 So.2d 732, 735 (Fla. 1989) (citing Stevens v. Jefferson, 436 So.2d 33, 35 (Fla. 1983)). It is a minimal threshold legal requirement for opening the courthouse doors. See McCain v. Florida Power Corporation, 593 So. 2d 500 (Fla. 1992) (In footnote number 1, the court qualified and explained the concept as follows: "Of course, to determine this legal question the court must make some inquiry into the factual allegations. The objective, however, is not to resolve the issues of comparative negligence or other specific factual matters relevant to proximate causation, but to determine whether a foreseeable, general zone of risk was created by the defendant's conduct.")

On the other hand, the proximate causation element is concerned with whether and to what extent the defendant's conduct foreseeably and substantially caused the specific injury that actually occurred. Id. at 502. This is a "much more specific factual requirement that must be proved to win the case once the courthouse doors are open." Id. at 502. Generally, issues of breach, proximate cause and foreseeability as related to proximate cause are fact questions for the jury, not resolved by summary judgment. McCain and See Springtree Properties, Inc. v. Hammond, 692 So.2d 164, 167 (Fla.1997). Importantly, it is immaterial that the defendant could not foresee the precise manner in which the injury occurred or its exact extent. Restatement (Second) of Torts § 435 (1965). In such instances, the true extent of the liability would remain questions for the jury to decide. McCain at 503.

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July 2, 2014

Florida Premises Liability Law: Misapplying the Control Concept

barricade.jpgCourts and lawyers have turned the following legal principle -- whether a party has a duty of care depends on the ability to exercise control -- on its head.

These cases and countless others state the principle: Metsker v. Carefree/Scott Fetzer Co. 90 So.3d 973, 977 (Fla. 2d DCA 2012) ("In a premises liability case, the issue of whether a party has a duty of care does not depend on ownership or title to the premises. Instead, the appropriate inquiry is whether the party has the ability to exercise control over the premises."); Regency Lake Apartments Associates, Ltd. V. French, 590 So.2d 970, 974 (Fla. 1st DCA 1991 ("In general, a cause of action for premises liability does not hinge on legal title ownership, but rather on the failure of the party who is in actual possession or control to perform its legal duty."); Haynes v. Lloyd, 533 So.2d 94, 946 (Fla. 5th DCA 1988) ("The crux of the cause of action for premises liability is not legal title or ownership, but the failure of a person who is in actual possession and control (be it the owner, an agent, a lessee, a construction contract, or other possessor with authority to control), to use due care to warn or to exclude, licensees and invitees from areas known to the possessor to be dangerous because of operations or activities or conditions.").

Too often, however, the principle is misunderstood and misapplied. It is most commonly misunderstood and misapplied to mean that lack of control means lack of duty as a matter of law. It doesn't.

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June 29, 2014

Florida Supreme Court Addresses Failure to Attend Uninsured/Underinsured (UM) CME

scales of justice.jpgI have blogged here ad nauseam about the continual conflict between insurance companies and their insureds over claims. While carriers insist upon receiving premium payments timely, their all too common approach to the claims process is delay and deny.

Carriers have at their disposal a bag of tools designed to effectuate this delay/deny business model. Examination Under Oath (EUO) (an oral examination conducted under oath by an insurance company of an insured making a claim under a policy), Independent Medical Examination (IME), appraisal, policy application misrepresentation, refusal to cooperate are just some of the tools at their disposal. Some are statutorily prescribed, others are a matter of contract.

An insurance policy is a contract. While statutes control various rights and obligations between carriers and insureds, the terms of the insurance policy determine many others.

Courts frequently become embroiled in conflicts involving the application of contested policy provisions. One such conflict of significance was fought out in State Farm v. Curran, (Fla. 2014). The Florida Supreme Court framed the conflict as follows:

WHEN AN INSURED BREACHES A COMPULSORY MEDICAL EXAMINATION PROVISION IN AN UNINSURED MOTORIST CONTRACT, DOES THE INSURED FORFEIT BENEFITS UNDER THE CONTRACT WITHOUT REGARD TO PREJUDICE? IF PREJUDICE MUST BE CONSIDERED, WHO BEARS THE BURDEN OF PLEADING AND PROVING THAT ISSUE?
Curran, State Farm's insured, sustained catastrophic injuries in a vehicle crash. Because the at-fault party's insurance coverage was inadequate, Curran demanded from State Farm the $100,000 in UM available under his own policy. He gave State Farm thirty days to tender the money, estimating his damages to be $3.5 million because she suffered from reflex sympathetic dystrophy syndrome (RSD) type 1. On the 29th day, State Farm demanded that Curran undergo a Compulsory Medical Exam (CME) pursuant to the terms of the policy. Curran refused and proceeded to sue State Farm. A jury trial culminated in an award of $4,650,589 in damages to Curran.

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June 25, 2014

Setting the Record Straight on Medical Malpractice and the Law in Florida

caduceus-1219484-m.jpgHere is my Letter to the Editor, word for word, that was published by the Miami Herald on June 25, 2014:

WRONGFUL DEATH CAP


Re the June 19 letter DeGennaro the best person to lead Miami VA: While Barth Green may be a prominent South Florida doctor, he is hardly a legal scholar. While writing in support of Dr. Vincent DeGennaro, his "close friend and respected colleague," he tries to bolster his argument by adding gratuitous debunked comments about doctors fleeing Florida because of its torts laws.

It appears that Dr. Green hasn't read McCall v. United States, the historic decision handed down by the Supreme Court of Florida in March of this year. The decision struck down as unconstitutional the statutory cap on wrongful death damages caused by medical malpractice. The court determined that the Florida Legislature had been persuaded to impose caps, in large part, based on bogus evidence presented by Gov. Jeb Bush's Select Task Force on Healthcare Professional Liability Insurance that, "Florida is in the midst of a medical malpractice insurance crisis of unprecedented magnitude," which is forcing physicians to flee the state.

The evidence studied by the court showed both claims to be patently false. In fact, the irrefutable evidence demonstrated that "the numbers of physicians in both metropolitan and non-metropolitan areas have grown."

The McCall opinion is a must-read for anyone interested in the truth about medical malpractice and the law in Florida.

It is important to all of us that opinions related to the medical legal system be founded on solid evidence.
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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.