Florida Injury Attorney Blawg

September 28, 2014

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

Most 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.”

September 18, 2014

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

by Jeffrey P. Gale, P.A.

By 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

by Jeffrey P. Gale, P.A.

In 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

by Jeffrey P. Gale, P.A.

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.

August 22, 2014

Tablo Sivivan Lanmò Abizif nan Florid – Retounen pa Demann Popilè

by Jeffrey P. Gale, P.A.

Se difisil pou konprann kiles ki ka kalifye pou konpansasyon anba “Lalwa Sivivan Lanmò Abizif nan Florid,” seksyon 768.16 jiska 768.26; se tankou konplete yon devinèt. Anba gen yon tablo ki fasil a konprann ki montre enfòmasyon sa a epi ki kalite konpansasyon ki ka disponib. En patikilye, seksyon 768.21 e enpotan anpil. Tablo a esplike seksyon sa a.

Dapre lalwa a, se sèlman “sivivan legal” ak byen moun ki mouri te kite dèyè a ki kalifye pou konpansasyon ki koze pa zak entansyonèl oswa neglijans ki fèt pa yon twazyèm pati. Yon Reprezantan Pèsonèl (RP), souvan yon manm fanmi pre moun ki mouri a, se nonmen pa tribinal la, apre yo fin bay avi pou lòt pati ki ka enterese nan jere byen moun ki mouri te kite dèyè a. Reprezantan nan anboche yon avoka pou jwenn dedomajman anba lalwa. Lòt sivivan ka anboche avoka pa yo, men, ofisyèlman, yo dwe avanse anba Reprezantan Pèsonèl epi avoka ki chwazi pa RP la. Tipikman, tout sivivan yo dako ak chwa RP la. Avoka la oubyen avoka yo okipe dosye a sou yon baz kontenjan, sa vle di RP, sivivan, ak byen moun ki mouri te kite dèyè a, pa oblije peye frè avoka davans. Si avoka rive jwenn bon rezilta ak dosye a, avoka a resevwa yon pousantaj nan dedomajman an ak tout frè ki asosye ak pouswit dedomajman an.

Ki moun ak kisa ki ka dedomaje anba lalwa varye selon sikonstans dosye a. Lalwa sa te defye anpil fwa nan tribinal la, men li toujour rete lalwa. Se selman aksyon Lejislati nan Florid la ki ka chanje lalwa a.

August 19, 2014

Èske Aksyon èkstrèm dwat Jeb Bush se bagay kap kraze sistèm konpansasyon pou anplwaye ki andomaje nan Eta Florid la?

by Jeffrey P. Gale, P.A.

Moun ki andomaje nan travay ap fè fas ak yon gwo pwoblèm sou zafè dwa yo genyen anba sistèm konpansasyon pou anplwaye ki andomaje nan travay nan Florid depi kòmansman’l nan ane 1935. Kèk nan peryòd sa yo te pi mal pase kèk lòt. Sepandan, pa gen yonn ki te ka pi mal pase tan Jeb Bush te sèvi kòm 43èm Gouvènè nan Florid soti nan ane 1999 rive nan 2007, ansanm ak yon chanm Depite ak Senatè ki te anba kontwòl Repibliken yo. Ansanm, yo te kraze sistèm lan.

Apre plizyè ane nan enjistis ak soufrans, li sanble yo pral kòmanse rekòlte sa yo te simen.

Anvan Florida te vini ak sistèm konpansasyon pou anplwaye ki andomaje nan travay la, pou yo te peye yon anplwaye ki andomaje pou jou travay li te pèdi epi pou ba li benefis medikal, li te bezwen bay anpil prèv aksidan te rive akòz neglijans travay la. Sa te yon tèt chaje ke lwa leta te rann pi difisil toujou sitou si yo te gen kèk prèv anplwaye a pat pran prekosyon oswa li te aksepte travay nan kondisyon ki te ka kreye pwoblèm sa yo. Sistèm sa te akoz anpil anplwaye pa resevwa benefis. Sistèm sa pat nan benefis konpayi travay yo tou ki te fè yo pase anpil tan nan pwosè.

August 13, 2014

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

by Jeffrey P. Gale, P.A.

Injured 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

by Jeffrey P. Gale, P.A.

“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

by Jeffrey P. Gale, P.A.

Corporate 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

by Jeffrey P. Gale, P.A.

There 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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FLORIDA INJURY ATTORNEY BLAWG