Articles Posted in Litigation

Individuals seriously injured through the negligence of others often require medical care and treatment long after the case is resolved. Settlements and jury verdicts must take these future medical expenses into account.

Some individuals harmed through the negligence of others are eligible for medical care through governmental or charitable services for a pre-existing disability unrelated to the tort claim. The most common of these services is Medicare.

Governmental and charitable reimbursements are always a fraction of a medical provider’s usual and customary charges. While the services may cover medical expenses related to the accident, there are no guarantees as to what will be covered and for how long. Given these factors, should juries be allowed to consider evidence of the reduced rates in calculating future medical expenses.

The answer in Florida appears to be Yes.

In State Farm v. Joerg, the trial court did not allow State Farm to introduce evidence that Joerg’s future medical expenses might be reduced under the Medicare program. The trial court’s decision was reversed on appeal.

Relying on Florida Physician’s Insurance Reciprocal v. Stanley, 452 So. 2d 514 (1984), a Florida Supreme Court case, Florida’s 2nd DCA held that since Joerg did not earn the Medicare benefit, the jury should be allowed to consider Medicare’s rates in calculating future medical expenses.
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Expert testimony plays a major role in almost every civil and criminal legal case. In Florida state courts expert testimony is governed by sections 90.702-90.706, Florida Statutes. The goal of the statutes is to insure fairness and impartiality in the trial of cases. The standard for when expert testimony is allowed is set forth in

Individuals in Florida under 18 years of age, considered minors, do not have the legal capacity to settle personal injury claims or control the settlement proceeds. Minors are typically represented in their cases by one or both parents, who, by operation of law, are their legal guardians. In the absence of a parent or where the suitability of a parent is in question, a court can appoint someone else. In some instances, another person, like a grandparent, has already been appointed legal guardian by a court. The legal guardian chooses the lawyer who will handle the personal injury case.

Whether and to what extent further court involvement is required, depends on for how much money the case is settled. In some instances the legal guardian can settle the case without court intervention, while, in others, the court becomes deeply involved. Court involvement adds delay and costs. What follows is a chart setting forth the requirements:

Court Approval of Settlement Required:

• Gross Settlement is $15,000 or less – No, unless a lawsuit has been filed, then yes. Sections 744.301(2) & 744.387(3)(a) Florida Statutes.

  Court approval is obtained by filing a Petition for Approval of Minor’s Settlement with the Court. The Petition must contain details of the case regarding the issues of liability and damages, the amount of the settlement, and the amount of attorneys’ fees and costs. In many instances, the Court will approve the settlement without a hearing.

• Gross Settlement is greater than $15,000, but less than $50,000 – Yes. Section 744.387(3)(a).
• Gross Settlement in excess of $50,000 – Yes. Section 744.387.

Need Legal Guardianship/Guardian of the Property Appointed:

• Gross Settlement is $15,000 or less – No.
• Gross Settlement is greater than $15,000, but less than $50,000 – Yes, but only if the Net settlement (after gross settlement is reduced by attorney’s fees and costs) exceeds $15,000. Section 744.387(2).
• Gross Settlement in excess of $50,000 – Yes, but only if the Net settlement exceeds $15,000. Section 744.387(2).

The guardian of the property, usually the legal guardian, is responsible for signing releases and collecting the net settlement proceeds. However, the court retains sole jurisdiction to determine the allocation and use of the minor’s money, including as to how it should be invested for safekeeping until the minor reaches the age of majority. Until majority, the legal guardian needs court approval to touch the minor’s money. The Court is supposed to consider what is in the best interest of the minor when determining if or how the proceeds can be used.
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Medical bills are a strong measure of injuries and future expenses. However, due to insurance and governmental (e.g., Medicare) discounts, bills are rarely paid in full. Where the medical provider is prohibited, by contract or law, from balance billing, Plaintiffs and Defendants contest which medical expenses, the full charges or the reduced payments, may be presented to the jury.

Plaintiffs argue that total charges give a full picture of their bodily injuries and future medical expenses. Defendants endeavor to limit admissibility to the discounted amounts. The outcome depends on who pays the bills.

Where the discounts are contractual write-downs from private insurance, the trial court should allow evidence of the total charges. In other words, Plaintiff may “board” all billed charges.

If a jury, in the face of discounted medical expenses, awards the Plaintiff the full medical expenses, doesn’t the Plaintiff derive a windfall? No. In Goble v. Frohman, 901 So.2d 830 (Fla. 2005), the Florida Supreme Court decided that such verdicts are to be reduced post-trial by the contractual discounts between the providers and private insurance company. Here is an example of how it works: if the discounted payment is $35,000 on total charges of $100,000, and the jury awards $ 100,000 for incurred medical expenses, the verdict will be reduced post-trial by $ 65,000 for a final judgment of $ 35,000.

This is fair. The jury, which does not hear about the discounted payment, is allowed to render its verdict based on relevant, probative evidence, while the judge, post-trial, adjusts the verdict so that the Defendant pays no more than was received by the medical providers.

This raises another question. If insurance has paid and the patient therefor owes the provider nothing, what is fair about a final judgment which awards the Plaintiff the amount paid by the insurance company? Simple. The Plaintiff must repay the money to the insurance company.

In essence, then, the most important aspect of boarding full medicals is for the jury to award the correct amount for pain and suffering damages and future medical expenses.
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Our law firm and Domnick & Shevin PL, represent a Disney bus driver who was severely injured in a March 2010 crash with a Mears Transportation Group motor coach near the vehicle entrance to Epcot. He was airlifted to Orlando Regional Medical Center after being pried from the driver’s seat of the bus.

The Mears motor coach was stopped in the right lane of Epcot Center Drive, a few hundred feet short of the Epcot vehicle entrance gate. It was stopped, the driver claims, so she could exit the vehicle to inspect for a noise coming from the area of the left front tire. The vehicle was not disabled.

Not perceiving that that the motor coach was stopped, our client plowed his Disney bus into the rear of the motor coach.

Under Florida law, the presumption is that the trailing vehicle in a rear-end accident is at-fault. The presumption is rebutable, meaning that evidence of fault against the lead vehicle can overcome the presumption.

Florida also applies the comparative fault doctrine to personal injury cases. Under this doctrine, blame is apportioned in accordance with fault. For example, a person 25% at fault may recover up to 75% of his or her damages from other responsible parties. This is more equitable than the contributory fault doctrine, formerly followed in Florida, which denied a recovery to anyone with any responsibility for causing the accident, even as little as 1%.
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