Florida Injury Attorney Blawg

November 12, 2023

Jeffrey P. Gale, P.A. // Difference Between Workers’ Compensation Lien and Medicare Lien in Death Cases

A lien is a claim held by a party against the settlement or judgment in a personal injury or death case for reimbursement of damages it has paid in the case. This blog will discuss two types of liens commonly arising in death cases, the Medicare lien and the workers’ compensation lien.

Medicare pays medical expenses while both medical and indemnity (money) benefits are paid by the employer and its insurance carrier in Florida workers’ compensation cases. Each type is often paid in association with cases where the victim ends up dying.

42 CFR sec. 411.24 sets forth Medicare’s lien rights. Section 440.39, Florida Statutes covers the employer/carrier’s lien rights in workers’ compensation cases.

Section 786.21 of Florida’s Wrongful Death Act defines the type of benefits available in civil law wrongful death cases. Section 440.16 does this in the context of workers’ compensation cases. In some instances, a recovery under both laws is available for the same accident.

October 14, 2023

Jeffrey P. Gale, P.A. // Sovereign Immunity (“The King can do no wrong”) Harms We the People

by Jeffrey P. Gale, P.A.

One of the primary public policy reasons for having a robust civil justice system that is able to exact full compensatory damages from negligent actors is to encourage safe conduct. Short of criminal punishment, nothing motivates people and corporations to act responsibly more than the threat of losing money.

Sovereign Immunity is a legal concept applied in monarchies and constitutional monarchies such as the United Kingdom, Japan, Jordan, and the Netherlands, to make the sovereign or state immune from civil suit or criminal prosecution. It is derived from the Latin maxim Rex non potest peccare, meaning “the king can do no wrong.” Florida has enacted a modified version of sovereign immunity in the area of civil law involving personal injuries and wrongful death.

Under Florida civil law, people and companies who are not protected by sovereign immunity can be held accountable up to the full measure of the damages caused by their negligence. Those damages can include pain and suffering, medical expenses, and loss of income. In cases involving serious injuries or the loss of life, the full measure of damages can be in the millions.

Florida’s sovereign immunity law limits the amount of compensation the sovereign can be compelled to pay. Under section 768.28(5)(a), Florida Statutes, the sovereign, described as “the state and its agencies and subdivisions,” is limited to paying $200,000 per individual, $300,000 per claim. In other words, the most a sovereign will ever have to pay in a single case is $300,000. It does not matter how substantial the actual losses are.

This arbitrary sovereign immunity cap defeats the public policy of encouraging safe conduct.

October 6, 2023

Jeffrey P. Gale, P.A. // Duty and Proximate Cause are Essential Elements of Every Florida Personal Injury and Wrongful Death Negligence Case

by Jeffrey P. Gale, P.A.

Duty and proximate cause are essential elements of every Florida personal injury and wrongful death negligence case.

DUTY: “Where a defendant’s conduct creates a foreseeable zone of risk, the law generally will recognize a duty placed upon defendant either to lessen the risk or see that sufficient precautions are taken to protect others from the harm that the risk poses.” See Kaisner v Kolb, 543 So.2d 732, 735 (Fla. 1989) (citing Stevens v. Jefferson, 436 So.2d 33, 35 (Fla. 1983)).

PROXIMATE CAUSE: “The proximate causation element, on the other hand, is concerned with whether and to what extent the defendant’s conduct foreseeably and substantially caused the specific injury that actually occurred.” McCain v. Florida Power Corporation, 593 So.2d 500, 502 (Fla. 1992).

While the concept of foreseeability can be relevant to both elements, the concept “relates to duty and proximate causation in different ways and to different ends.” Id. at 502. Hence, merging the two elements into a single hybrid foreseeability analysis would be incorrect.

September 8, 2023

Jeffrey P. Gale, P.A. // Workers’ Compensation Immunity for Florida Contractors and Subcontractors

by Jeffrey P. Gale, P.A.

It is sometimes possible for employees injured on the job in Florida to be compensated through both the state’s workers’ compensation system and its civil justice system. As to the compensation available and the manner in which the compensation is sought and received, the systems are more different than they are alike. One of the primary differences is that compensation for human damages such as bodily injury, pain and suffering, disfigurement, mental anguish, and the loss of capacity for the enjoyment of life, are elements of a civil remedy but not workers’ compensation. In a nutshell, workers’ compensation benefits are limited to medical and indemnity benefits. Non-economic damages, which can amount to millions of dollars, are not recoverable.

What limits most employees from being able to receive the civil remedy is the legal concept known as workers’ compensation immunity. The basic concept is set forth in Fla. Stat. Sec. 440.11(1):

The liability of an employer prescribed in s. 440.10 shall be exclusive and in place of all other liability, including vicarious liability, of such employer to any third-party tortfeasor and to the employee, the legal representative thereof, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death….

Special laws have been devised to deal with workers’ compensation immunity in the context of contractor-subcontractor relationships. See Fla. Stat. Sec. 440.10(b)-(f). For the employees of contractors and subcontractors, the general law is set forth in s. 440.10(b):

In case a contractor sublets any part or parts of his or her contract work to a subcontractor or subcontractors, all of the employees of such contractor and subcontractor or subcontractors engaged on such contract work shall be deemed to be employed in one and the same business or establishment, and the contractor shall be liable for, and shall secure, the payment of compensation to all such employees, except to employees of a subcontractor who has secured such payment.

“[T]he purpose of section 440.10 . . . [is] ‘to insure [sic] that a particular industry will be financially responsible for injuries to those employees working in it, even though the prime contractor employs an independent contractor to perform part or all of its contractual undertaking.’” Gator Freightways, Inc. v. Roberts, 550 So. 2d 1117, 1119 (Fla. 1989) (quoting Roberts v. Gator Freightways, Inc., 538 So. 2d 55, 60 (Fla. 1st DCA 1989)); see also Crum Servs. v. Lopez, 975 So. 2d 1184, 1186 (Fla. 1st DCA 2008) (explaining that section 440.10(1)(b) “is designed to ensure that employees engaged in the same contract work are covered by workers’ compensation, regardless of whether they are employees of the general contractor or its subcontractor”).

August 1, 2023

Jeffrey P. Gale, P.A. // Interplay Between Vicarious Liability and Negligent Hiring, Employment, and Entrustment Cases

by Jeffrey P. Gale, P.A.

Under the legal doctrine of respondeat superior, employers can be held liable for the negligent or purposeful acts of their employees. See Valeo v. East Coast Furniture Co., 95 So. 3d 921, 925 (Fla. 4th DCA 2012) (holding negligence of employee imputed to employer when employee “committed the negligent act: (1) within the scope of employment, or (2) during the course of employment and to further a purpose or interest of the employer.”). This liability, known as vicarious liability, applies even if the employer has done nothing wrong.

In some instances, the employer’s own negligence is part of the causal chain resulting in the harm. For example, a few years ago our client was severely beaten in his home by a furniture deliveryman who became annoyed by the strong smell of fish being cooked in the home. We learned that the deliveryman had a criminal record of violent activity before he was hired and a history of physical misconduct while employed. He should not have been hired or retained for a job putting him in one-on-one unsupervised contact with customers.

Negligent hiring and employment have long been found to be legitimate bases of recovery in Florida. See, e.g., Mallory v. O’Neil, 69 So.2d 313 (Fla. 1954); McArthur Jersey Farm Dairy, Inc. v. Burke, 240 So.2d 198 (Fla. 4th DCA 1970).

Similarly, certain employees should not be entrusted with operating motor vehicles. The reasons range from being a known reckless driver to mental impairment from a medical condition or alcohol or drug use. The theory of negligent entrustment has long been utilized in an automobile situation as the basis of recovery. See, e.g., Bould v. Touchette, 349 So.2d 1181 (Fla. 1977); Wright Fruit Co. v. Morrison, 309 So.2d 54 (Fla.2d DCA 1975).

July 27, 2023

Jeffrey P. Gale, P.A. // Florida Workers’ Compensation — Compensability of Accidents During Lunch Break

by Jeffrey P. Gale, P.A.

Our client, a construction site supervisor, was injured off-premises at the end of his lunch break. The beginning and end of lunch were signaled by a loud horn. He and his brother traveled by car to a nearby 7-11 to purchase lunch items. They returned to the area near the worksite to eat lunch in the parked car. When the return-to-work horn sounded, our client went to the trunk of his car to retrieve his hard hat and safety harness. As he was standing there, the car behind him was struck from behind by another vehicle and pushed into him, causing him to be crushed between that vehicle and his own. He sustained significant injuries requiring a one-week stay in Ryder Trauma Center in Miami.

Initially, the workers’ compensation insurance carrier balked at accepting compensability of the injury. Its position was that since the accident happened offsite during a lunch break, it did not arise out of and in the course and scope of our client’s employment. After studying the case law and gathering more facts, the carrier reversed course.

July 26, 2023

Jeffrey P. Gale, P.A. // Medical Expenses Incurred in Diagnosing the Nature and Cause of Non-Compensable Injuries Can be the Responsibility of Workers’ Compensation Insurance Carriers

by Jeffrey P. Gale, P.A.

We represent a woman who fell at work. The employer sent her to a clinic the same day for treatment. However, because of miscommunications between the employer and the clinic, she never got in to see a doctor despite waiting more than two hours. While in the waiting room, our client began experiencing stroke-like symptoms. She phoned her daughter to take her to the hospital. She was admitted to the hospital and underwent a series of tests mostly aimed at the stroke-like symptoms. She was discharged 24 hours after being admitted. The hospital bill was close to $100,000.

Our client injured her back and feet in the fall. She did not strike her head. The workers’ compensation insurance carrier has accepted responsibility for the orthopedic injuries. However, it is not considering paying the hospital bill. It may have to pay the bill.

It is well established in the case law that diagnostic testing is always compensable if the purpose is to find out the cause of the injured worker’s symptoms. See Arnau v. Winn Dixie Stores, 105 So.3d 669, 671 (Fla. 1st DCA 2013) citing Nealy v. City of W. Palm Beach, 491 So.2d 585, 586 (Fla. 1st DCA 1986) (“Whenever the purpose of the diagnostic test is to determine the cause of a claimant’s symptoms, which symptoms may be related to a compensable accident, the cost of the diagnostic test is compensable.”); see also Superior Concrete Constr. v. Olsen, 616 So.2d 183, 183 (Fla. 1st DCA 1993); Perry v. Ridgecrest Int’l, 548 So.2d 826, 827-28 (Fla. 1st DCA 1989). This is true even if the tests prove the symptoms are unrelated to the compensable injury. Nealy, 491 So.2d at 586.

The foundation for these principles is found in Florida statute 440.13. Under paragraph 440.13(2)(a), Florida Statutes (2023), employers are required to furnish “such medically necessary remedial treatment, care, and attendance for such period as the nature of the injury or process of recovery may require.” Medically necessary treatment includes “any medical service or medical supply which is used to identify or treat an illness or injury.” § 440.13(1)(k), Fla. Stat. (2023).

June 29, 2023

Jeffrey P. Gale, P.A. // Employer/Carrier’s Responsibility to Pay for Unrelated Medical Care

by Jeffrey P. Gale, P.A.

Following compensable work-related accidents, employers and their insurance carriers (commonly collectively referred to as “E/C”), are supposed to furnish injured workers with the medical care prescribed in Florida Statute section 440.13.(2)(a). The key language of the statute reads as follows:

Subject to the limitations specified elsewhere in this chapter, the employer shall furnish to the employee such medically necessary remedial treatment, care, and attendance for such period as the nature of the injury or the process of recovery may require….

Interestingly, this provision has been interpreted to include medical treatment for unrelated conditions if such treatment will aid or improve recovery of the work injury. The principle has been recognized since 1966.

In Jordan v. Fla. Industrial Commission, 183 So. 2d 529 (Fla. 1966), the Florida Supreme Court reversed the rulings of two lower tribunals which denied treatment of a pre-existing deformity, and compensation for healing time during and following same. The injured worker in the case had sustained a leg injury in a prior accident which healed at an abnormal angle shortening his leg by two and one-fourth inches, giving him a limp, curvature of the spine and abnormal stress on the leg muscles, tendons, etc. Four years later he suffered a job-connected accident resulting in a back injury. Medical testimony demonstrated that were it not for the abnormal stress on his back caused by the earlier deformity, claimant’s back would have healed from the compensable injury in four to eight weeks, and that the only effective treatment for the compensable back injury was to correct the leg length discrepancy. The Judge of Compensation Claims declined to require that the employer provide treatment or appliances to correct the deformity. The Full Industrial Commission affirmed the JCC. (It should be noted that the Industrial Commission no longer exists to review workers’ compensation trial judge rulings. That responsibility now lies with the First District Court of Appeal.) The Supreme Court reversed both tribunals and ordered E/C to furnish the medical treatment.

June 15, 2023

Jeffrey P. Gale, P.A. // Protecting Privacy and Privilege Rights in Non-Party Requests for Documents

by Jeffrey P. Gale, P.A.

In just about every personal injury and workers’ compensation case, the defense will seek the production of records from non-parties to the suit. The typical non-party targets are medical providers and insurance companies. In most instances, the records sought were not generated in connection with the subject case. The defense is looking for records of preexisting medical conditions and prior legal claims.

Florida’s discovery rules are liberal. FRCP 1.280(b) provides as follows:

(b) Scope of Discovery. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery isas follows:
(1) In General. Parties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

Albeit broad, the rules are not boundless. In Russell v. Stardust Cruisers, Inc., 690 So.2d 743 (Fla. 5^th DCA 1997), a wrongful death case, petitioner objected to defendant’s request for decedent’s psychiatric and psychological records, stating that the medical records were confidential and that the request was overbroad. The DCA decided that the records might be relevant to the issue of damages but disagreed with the court’s order allowing “carte blanche investigation of decedent’s entire mental health history.” Russell at 745. The court explained that “Even though the rules of civil procedure allow for broad discovery, the discovery must be confined to matters admissible or reasonably calculated to lead to admissible evidence in the case.” Russell at 745, citing East Colonial Refuse Service, Inc. v. Velocci, 416 So.2d 1276, 1277 (Fla. 5th DCA 1982). The trial court order allowing carte blanche discovery was quashed and the matter was remanded for an in camera review of the records.

June 1, 2023

Jeffrey P. Gale, P.A. // Fundamentals Always Matter — Proximate Cause

by Jeffrey P. Gale, P.A.

In every negligence action for injuries or wrongful death the plaintiff must establish (1) a duty owed by the defendant; (2) the defendant’s breach of the duty; and (3) and that said breach proximately caused the damages claimed.

In negligence actions Florida courts follow the more likely than not standard of causation and require proof that the negligence probably caused the plaintiff’s injury. See Tampa Electric Co. v. Jones, 138 Fla. 746, 190 So. 26 (1939); Greene v. Flewelling, 366 So.2d 777 (Fla. 2d DCA 1978), cert. denied, 374 So.2d 99 (Fla. 1979); Bryant v. Jax Liquors, 352 So.2d 542 (Fla. 1st DCA 1977), cert. denied, 365 So.2d 710 (Fla. 1978). Prosser explored this standard of proof as follows:

On the issue of the fact of causation, as on other issues essential to his cause of action for negligence, the plaintiff, in general, has the burden of proof. He must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a substantial factor in bringing about the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.

The north star of the law of causation is the landmark supreme court decision in Gooding v. University Hospital Building, Inc., 445 So. 2d 1015, 1020 (Fla. 1984). The Florida Supreme Court described the case as follows:

Emily Gooding, personal representative of Mr. Gooding’s estate, brought a wrongful death action against the hospital alleging negligence by the emergency room staff in not taking an adequate history, in failing to physically examine Mr. Gooding, and in not ordering the laboratory tests necessary to diagnose and treat Mr. Gooding’s abdominal aneurysm before he bled out and went into cardiac arrest. Mrs. Gooding’s expert witness, Dr. Charles Bailey, a cardiologist, testified that the inaction of the emergency room staff violated accepted medical standards [i.e., there was a breach]. Dr. Bailey, however, failed to testify that immediate diagnosis and surgery more likely than not would have enabled Mr. Gooding to survive.

The trial court denied the hospital’s motion for directed verdict on causation. The jury found the hospital liable and awarded damages. The hospital appealed. The First District Court of Appeal reversed on the grounds that the trial court should have directed a verdict in favor of the hospital because Mr. Gooding’s chances of survival under the best of conditions were no more than even. The plaintiff, therefore, could not meet the more likely than not test for causation. The Supreme Court affirmed the DCA on this holding.

FLORIDA INJURY ATTORNEY BLAWG