Florida Injury Attorney Blawg

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

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

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

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

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

In every serious personal injury case in Florida, the issue of who will pay the medical providers and how much always arises. Needless to say, providers want to recover as much as they can. Patients, of course, want to pay as little as possible out-of-pocket. How this plays out often depends on who pays the bills.

The different pay sources include health insurance, PIP (motor vehicle insurance), workers' compensation, the patient (self-pay), the tortfeasor (out-of-pocket), bodily injury liability coverage, UM/UIM (motor vehicle insurance), Medicare and Medicaid.

Various laws dictate who pays what and when. In some instances, the only available sources are Medicare or Medicaid (M/M) and bodily injury liability and/or UM/UIM. Since M/M provide some of the lowest reimbursement rates and providers accepting M/M payments are not allowed to balance bill their patients, in terms of raw numbers it is often to the victim's advantage for M/M to pay the providers. While victims will ultimately have to reimburse M/M from their recovery in the personal injury case, the amount of the reimbursement is almost always less than what must be paid to the provider directly from the third party recovery (1st party if from UM/UIM).

Continue reading "Medical Providers Not Required To Bill Medicare and Medicaid in Personal Injury Cases" »

Our previous blog addressed the procedure for satisfying Medicaid's lien from money received in Florida personal injury cases from liable third parties.The present blog will focus on satisfying Medicare's lien from third party proceeds. The leading case on the issue is Hadden v. United States, 661 F.3d 298 (6th Cir. 2011).

Medicare and Medicaid are federal programs that provide medical insurance to various classes of individuals. Medicare is for qualified elderly and disabled persons, see 42 U.S.C., §§1395 et.seq., Medicaid is for individuals who cannot afford to pay their own medical costs. See 42 U.S.C. §§1396 et seq. Both programs aim to make themselves only secondary payers as to medical expenses for which some other entity (e.g., a tortfeasor) bears responsibility. Medicare -- 42 U.S.C. § 1395y(b)(2), Medicaid -- 42 U.S.C. §§ 1396a(a)(25)(A), (B), (H). Hence, the need for personal injury lawyers to know each programs' lien laws.

In Hadden, Medicare paid more than $80,000 for medical care on behalf of Hadden for injuries he sustained in an accident. Hadden subsequently settled a personal injury claim with a tortfeasor for $125,000. After subtracting a portion of the attorneys' fees that Hadden himself had paid to obtain the settlement, see 42 C.F.R. § 411.37, Medicare determined that Hadden owed it $62,338.07. Hadden argued that the case settled for 10% of its actual value, therefore, Medicare's recovery should be limited to a proportional 10% of its outlay, or slightly more than $8,000. The 6th Circuit disagreed.

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 Court interpreted the word "responsibility" to mean the amount the recipient claimed was due from the tortfeasor, rather than a compromised amount he or she receives from the tortfeasor. In other words, the beneficiary's obligation to reimburse Medicare is "defined by the scope of his own claim against the third party." In the Court's view, "a beneficiary cannot tell a third party that it is responsible for all of his medical expenses, on the one hand, and later tell Medicare that the same party was responsible for only 10% of them, on the other."

Continue reading "Satisfying Medicare's Lien from Recoveries in Florida Personal Injury Cases" »

Not infrequently, Medicaid will step up and cover the medical expenses of persons severely injured in accidents before other sources do so. This is commendable. However, where the Medicaid recipient is subsequently compensated by a third party for damages sustained in the accident, Florida Statute 409.910 says that Medicaid must be reimbursed from the proceeds.

How the statutory formula is applied has been the subject of appeals both in Florida and in other states (other states have similar statutory provisions). The many opinions have created some confusion. This blog attempts to clarify the law in Florida.

First, a basic understanding of the Medicaid system is in order. A good explanation comes by way of EMA ex rel. Plyler v. Cansler, 674 F. 3d 290 - Court of Appeals, 4th Circuit 2012.

The Medicaid program, launched in 1965 with the enactment of Title XIX of the Social Security Act, as added, 79 Stat. 343, 42 U.S.C. §§ 1396-1396v, is a cooperative program by which the federal government pays a percentage of the costs a state incurs for medical care for individuals who cannot afford to pay their own medical costs. [Arkansas Dept. of Health and Human Servs.] v. Ahlborn, 547 U.S. at 275, 126 S.Ct. 1752. Although states are not required to provide Medicaid assistance, all 50 states currently do. Id. In exchange for receiving federal financial support for state-run Medicaid programs, states must comply with federal Medicaid laws, including statutory third-party liability requirements, 42 U.S.C. §§ 1396a(a)(25)(A), (B), (H); 1396k, and anti-lien provisions, id. §§ 1396a(a)(18), 1396p.

States providing Medicaid assistance must comply with several provisions concerning third-party liability. For instance, states are required to "take all reasonable measures to ascertain the legal liability of third parties ... to pay for care and services available under the [State's Medicaid] plan." 42 U.S.C. § 1396a(a)(25)(A). In addition to this identification requirement, the state agency administering the Medicaid program ... must seek reimbursement for medical assistance to the extent of such legal liability. Id. § 1396a(a)(25)(B). In order to secure its reimbursement from liable third parties, the state must,

Continue reading "Reimbursing Florida Medicaid (AHCA) From Third Party Personal Injury Proceeds" »

The elements of defamation are that the Defendant published a false statement, that the statement was communicated to a third party, and that the Plaintiff suffered damages as a result of the publication. Axelrod v. Califano, 357 So.2d 1048 (Fla. 1st DCA 1978).

In some instances, a qualified privilege exists in the communication. For the communication to be privileged, it "must be made by a person having a duty or interest in the subject matter, to another having a corresponding duty or interest." Axelrod at 1051. The nature of the duty or interest may be public, personal or private, either legal, judicial, political, moral, or social. It need not be one having the force of a legal obligation; it may be one of imperfect obligation. The interest may arise out of the relationship or status of the parties. Leonard v. Wilson, 150 Fla. 503, 8 So.2d 12 (1942). It is called a qualified or conditional privilege, because the libelous statement must be made in good faith, that is, with a good motive, and not for the purpose of harming the subject of the defamation. Drennen v. Washington Electric Corp., 328 So.2d 52, 55 (Fla. 1st DCA 1976).

Continue reading "Florida Defamation Law: Qualified or Conditional Privilege " »

Federal law, Title VII of the Civil Rights Act of 1964 (Title VII) -- see 42 U.S.C. Section 2000e et seq.; 42 U.S.C. Section 2000e-2 -- expressly forbids sex discrimination on the basis of pregnancy. Florida's discrimination statute, the Florida Civil Rights Act of 1992, does not. See Fla. Stat. Section 760.10.

While Florida's statute does not expressly prohibit discrimination on the basis of pregnancy, one Florida appellate court, the Fourth District Court of Appeals has decided that a cause of action does exist under Section 760.10 for discrimination in employment based on pregnancy. See Carsillo v. City of Lake Worth, 995 So.2d 1118 (Fla. 4th DCA 2008).

Florida has five District Courts of Appeals. While the Fourth has decided that a cause of action does exist under 760.10, the First, in O'Loughlin v. Pinchback, 579 So.2d 788 (Fla. 1st DCA 1991), and the Third, in Delva v The Continental Group, Inc., So.3d , 37 FLW D1745 (Fla. 3rd DCA 7-25-2012), have decided that no such right exists under the statute. Neither the Second and the Fifth, nor the Florida Supreme Court have taken a position on the issue.

Continue reading "Prosecuting Employment Pregnancy Discrimination Cases in Florida" »

There are numerous procedural, substantive, and even attitudinal differences in the way civil cases are handled between State and Federal Courts. The differences can determine the outcome of a case.

In many instances, the line is sharp over which court system has jurisdiction, leaving little to no choice over which system will get the case. In others, however, legal maneuvering can dictate where a case will land. It is important, therefore, for lawyers to fully understand the factors that determine the outcome.

Given the significance of the outcome, parties to legal proceedings have always tussled over the jurisdiction issue, spawning a plethora of statutes and case law. Ironically, the many statutes and opinions on the subject have to a degree created more confusion than clarity.

Continue reading "Federal Courts Jurisdiction and Venue Clarification Act of 2011" »

PIP (Personal Injury Protection) and health insurance will cover most motor vehicle-related medical expenses. However, these insurance policies are subject to deductibles and copays, leaving insureds with out-of-pocket medical expenses even under the best circumstances. An exception applies when the insured is a victim of a DUI crash.

The exception is contained in Florida Statute Section 624.128:

Crime victims exemption.--Any other provision of the Florida Statutes to the contrary notwithstanding, the deductible or copayment provision of any insurance policy shall not be applicable to a person determined eligible pursuant to the Florida Crimes Compensation Act, excluding s. 960.28.

The DUI crash victim must apply for crime compensation with and be found eligible by the Office of the Attorney General, Division of Victim Services. (Here is a link to the Victim Compensation Claim Form.) A victim found eligible will be notified by the Office of the Attorney General. The victim should then present the notice of eligibility to the appropriate insurance companies to obtain the waiver.

Continue reading "Florida DUI Crash Victims Exempt from PIP & Health Insurance Deductible and Co-Pay" »

Obviously, medical records are important for many reasons. They do not come without a price.

Florida Statute Section 456.057 is titled "Ownership and Control of Patient Records; Report or Copies of Records to be Furnished," and it defines the owner of medical records as the health care practitioner who generates a medical record after essentially performing an examination of a patient. The owners sell copies of their records to those who request them.

The cost of copies is controlled by 456.057 and Rule 64B8-10.003 of the Florida Administrative Code. A plain reading of Rule 64B8-10.003 makes it clear that the cost of medical records is determined by the status of the person making the request.

Continue reading "The Cost of Florida Medical Records" »

The Huns are at it again.

Not satisfied with controlling the Governor's Office (Tea Party darling Rick Scott) and the Florida Legislature (both chambers have large Republican majorities), the US Chamber of Commerce and its right-wing allies are mounting a campaign to unseat three moderate Florida Supreme Court Justices. If the Justices are unseated and Rick Scott chooses their replacements, any hope that the poor, the injured, the forgotten, the voiceless, the defenseless and the damned have of receiving a fair shake will be vanquished. The three seats of our state government - Executive, Legislative, and the Courts - will be in the hands of the Huns. Shudder the thought!

Every six years, Florida's Supreme Court Justices are subject to a "yes" or "no" merit retention vote by the general electorate. No Supreme Court Justice has ever been voted out of office. However, no Justice has faced what Justices R. Fred Lewis, Barbara J. Pariente, and Peggy A. Quince will be facing in the coming months in the lead up to their merit retention votes in November, 2012.

Continue reading "US Chamber of Commerce Targets Florida Supreme Court Justices" »

A deposition is the gathering of sworn verbal testimony under oath. Except for communications that are protected by attorney/client privilege and the 5th amendment right against self-incrimination, witnesses are required to answer deposition questions. If a lawyer feels that a question is confusing, misstates testimony, lacks foundation, or assumes facts not in evidence, it is proper for an objection to be lodged before the question is answered. In most instances, the objection should simply be, "I object to the form of the question." This alerts the deposing lawyer that there may be a problem with the question. However, unless the lawyer invites the objecting attorney to explain or clarify the objection, nothing more should be said. Unfortunately, some lawyers abuse the right to object by not only explaining and clarifying without been asked to do so, they also suggest the response the witness should make. This obstructs the fact gathering process and is prohibited by various authorities.

It is difficult to keep disagreeable attorneys from staying in bounds during depositions. One solution is to warn the attorney and if the abuse continues, try to get the presiding judge on the telephone to issue a ruling on the spot. Sanctions can be sought after the deposition, but the cat is out of the bag by then.

Continue reading "Preventing Speaking Objections During Depositions - Florida Law" »

Prior to 1990, Florida employers had a common law qualified privilege to discuss current and former employees with prospective employers. The leading case was Nadar v. Galbreath, 462 So.2d 803 (Fla. 1984). For an employee to overcome the privilege, and thus hold the employer liable for defamation or intentional interference with a business relationship, proof was required that the false information was made with express malice - not to be confused with "actual malice," the standard applicable to claims against public officials or public figures - described as "where the primary motive for the statement is shown to be an intention to injure the plaintiff." Nadar, 462 @ 806 (citing Loeb v. Geronemus, 66 So.2d 241 (Fla. 1953). This common law standard needed to be shown by a preponderance of the evidence.

Florida Statute 768.095 appears to have superseded the common law. (The case law handed down since the enactment of 768.095 is somewhat confusing on the interplay, if any, between the statute and the common law.)

Continue reading "Florida Law Regarding Employer Liability for Disclosing False Information About Employees" »

The Republican Establishment has chosen Willard Mitt Romney to lead its people to The Promised Land. It points to his success in making large sums of money as the primary qualifying factor for the selection.

G-d chose Moses to lead the Jews to their Promised Land. Interestingly, what persuaded G-d to select Moses was his compassion more than his accomplishments.

The Book of Exodus tells us that Moses was rescued from the Nile River as an infant and raised by the Pharoah's daughter. One day he witnessed an Egyptian beating a Jew. He killed the Egyptian. Later he intervened in a fight between two Jews, the circumstances of which forced him to flee Egypt. While in the desert, he saved the seven daughters of Jethro from evil shepherds.

These acts showed perseverance, courage and fortitude. This was not enough for G-d.

Continue reading "Mitt's No Moses" »

Most freedom-loving Americans believe that intelligence, skill, character, and temperament are the most important qualities of a judge. Not so Florida Governor Rick Scott. Ideology is what matters most to this governor ... right-wing ideology at that.

In a blatant effort to subvert a free-acting judiciary, Governor Scott is seeking to change the way judge's are selected in Florida. He is pushing legislation that will remove the selection process from the hands of independent groups and give it to the governor. Shocking.

Reproduced below is a Letter to the Editor published in today's Miami Herald which touches nicely on the subject:
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Keep Florida's judiciary independent
 
There's a challenge afoot this legislative session for Florida Bar Association President Scott G. Hawkins and the Bar's board members: To protect Florida's justice system from a force that, if left unchecked, would eviscerate it.

Gov. Rick Scott plans to completely overtake Judicial Nominating Committee appointments. The governor has stated he would like to move all JNC appointments to the Office of the Governor, rejecting the time-honored and traditional input of the Florida Bar. This would amount to the biggest judicial power grab in Florida's history.

Don't be fooled by the promises and rhetoric: This is not about the philosophical belief that Florida would have a stronger, more independent judiciary if picked exclusively by the executive branch. Gov. Scott has an agenda for "his" judiciary.

Continue reading "Florida Governor Rick Scott Seeks to Pack the Courts " »

Arbitration has become the procedural remedy of choice for the business community in almost every type of civil dispute, from employment matters to nursing home negligence. Arbitration involves the resolution of civil disputes by a panel of costly private arbitrators rather than by government-paid judges and citizen jurors. If for no other reason than that arbitration abrogates the jury system, it is generally looked upon with disfavor by lawyers who represent plaintiffs in civil disputes.

Whether a dispute is arbitrated is a matter of agreement between the parties. Typically, the agreement is made at the outset of the relationship. For example, in the context of nursing homes, the arbitration agreement will be part of the package of admission documents. It is not unusual for the individual to such an agreement to be unaware of the provision or feel like he or she has no choice in the matter, a take-it-or-leave-it proposition.

Courts generally favor arbitration agreements, Raymond James Fin. Servs., Inc. v. Saldukas, 896 So. 2d 707, 711 (Fla. 2005), but such agreements are subject to state law contract defenses such as unconscionability, Orkin Exterminating Co. v. Petsch, 872 So. 2d 259, 264 (Fla. 2d DCA 2004). To succeed in an unconscionability argument, both procedural and substantive unconscionability must be shown. Bland, ex rel. Coker v. Health Care & Ret. Corp. of Am., 927 So. 2d 252, 256 (Fla. 2d DCA 2006).

Continue reading "Checklist of Considerations Regarding Florida Abitration Agreements" »