Articles Posted in Personal Injury

law booksPersonal injury plaintiffs and defendants battle over past and future damages. One frequent battleground concerns the amount a plaintiff should be awarded for future medical expenses.

Not infrequently, plaintiffs have sources such as health insurance, workers’ compensation, PIP, Med Pay, Medicaid, and Medicare to cover some or all of their future medical expenses. Almost always, these sources pay less than the usual and customary rates charged by most medical providers. Moreover, by accepting payments from these sources, medical providers are barred, in most instances, from balance billing beyond a small copay.

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dollarsFlorida’s civil justice system allows accident victims to seek damages from those alleged to be at fault. Damages awardable fall into two broad categories: Economic and non-economic.

Economic damages include medical expenses (past and future), past lost income, and the loss of earning capacity in the future. In some instances, Florida law allows these economic damages to be offset, or reduced, by or to the amount the victim received from other sources for the same loss. See §786.76 Florida Statutes and Florida Standard Jury Instruction 501.8.

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stoolsFloridians, like residents in every state, are acutely aware “of the terrible toll taken, both in personal injuries and property damage, by drivers who mix alcohol and gasoline,” Ontiveros v. Borak, 136 Ariz. 500, 667 P.2d 200, 205 (1983). While many of the culprits receive their intoxicating fuel from bars and restaurants, the legal standard for holding establishments liable for vehicle crashes caused by their patrons is exceedingly high. §768.125 Florida Statutes, Florida’s Dram Shop statute, provides the standard:

Liability for injury or damage resulting from intoxication.A person who sells or furnishes alcoholic beverages to a person of lawful drinking age shall not thereby become liable for injury or damage caused by or resulting from the intoxication of such person, except that a person who willfully and unlawfully sells or furnishes alcoholic beverages to a person who is not of lawful drinking age or who knowingly serves a person habitually addicted to the use of any or all alcoholic beverages may become liable for injury or damage caused by or resulting from the intoxication of such minor or person.

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Collateral sources, such as health insurance, workers’ compensation, Med-Pay, Medicare, and Medicaid, which pay the medical expenses of an injured party maze1arising from a third party’s negligence acquire a subrogation or reimbursement right in payments made to the injured party by the third party. (In Florida, Personal Injury Protection (PIP) insurance is the main exception to the rule. It does not acquire subrogation rights.) Failing to honor the right can have serious consequences against both the injured party and his or her attorney.

There is little debate that payments made before a case is settled or judgment is entered are subject to the lien. Less certain is whether payments made post-settlement or -judgment for services incurred pre-settlement or -judgment are subject to the lien.

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pillsA pharmacy owes a customer a duty of reasonable care. Reasonable care is the degree of care that an ordinarily prudent pharmacist would exercise under the same or similar circumstances. Marjorie A. Shields, Annotation, Exemplary or Punitive Damages for Pharmacist’s Wrongful Conduct in Preparing or Dispensing Medical Prescription—Cases Not Under Consumer Product Safety Act, 109 A.L.R.5th 397, § 2 (2003); see Pittman v. Upjohn Co., 890 S.W.2d 425, 434 (Tenn. 1994) (stating pharmacists have duty to exercise standard of care required of pharmacy profession in same or similar communities); Schaerrer v. Stewart’s Plaza Pharmacy, Inc., 79 P.3d 922, 933 (Utah 2003) (reiterating that pharmacist has generally recognized duty to possess and exercise reasonable degree of skill, care, and knowledge that would be exercised by reasonably prudent pharmacist in same situation).

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scales of justice.jpgPersonal injury plaintiffs bear the burden of proving the defendant was negligent. See Florida Standard Jury Instruction 415.11 – Civil Cases. Negligence is determined by measuring the defendant’s conduct against the behavior of a “reasonable person” under similar circumstances. In Florida, the burden requires proof by the greater weight of the evidence. Standard Jury Instruction 401.3 – Civil Cases.

The reasonable person standard, also known as the standard of care, can be established by statutes, ordinances, codes, rules, industry standards, and a company’s own policies & procedures. The violation of a statute, ordinance, code, or rule may constitute negligence per se; violation of industry standards and policies & procedures cannot. When the trial judge decides that a violation is negligence per se, the jury will be instructed to determine if the defendant violated the statute and whether such violation was a legal cause of the injury or damages complained of. deJesus v. Seaboard Coast Line Railroad Company, 281 So.2d 198 (Fla. 1973).
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L1010896.JPGEarlier this year our law firm participated in a one week jury trial against a condominium association and a general contractor seeking damages for personal injuries sustained by our client, an elderly woman. The association hired the general contractor to rebuild a wood dock that ran, unimpeded, behind each condo unit in the community alongside a North Miami Beach canal. The first thing the contractor did was remove every other wood plank through the entire length of the dock. It then undertook to replace every plank, beginning in a small section and working east and west in each direction as the work progressed. After the GC had laid down 100 linear feet of new wood, it got into a dispute with the association over payment issues. This resulted in a complete work stoppage in late July of 2012; the GC performed no more work on the site after this point. Our accident happened on November 11, 2012, nearly four months later.
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scales.jpgFlorida civil trial juries are given wide latitude in resolving factual conflicts. A verdict supported by evidence will be allowed to stand even if other evidence backs a contrary result. However, inconsistent and inadequate verdicts must be modified or reversed.

An “inconsistent” verdict can only be corrected by the jury that has rendered it. Before the jury is excused, the party or parties taking issue with the verdict must ask the court to instruct the jury on the inconsistencies and send it back for further deliberation. If the request is denied, the jury is excused.
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scales of justice.jpgIn Parrish v. City of Orlando, 53 So.3d 1199 (Fla. 5th DCA 2011), the plaintiff suffered a comminuted proximal humerus fracture in her left shoulder from tripping and falling on an uneven sidewalk. The jury awarded $51,929.02 for past medical expenses, and $130,000 for future medical expenses. However, the jury awarded no past or future noneconomic damages. Because of the zero award, Ms. Parrish moved the trial court post-verdict to order an additur (F.S. 768.74) and/or a new trial (FRCP 1.530). When her motion was denied, she appealed.
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law books.jpgGetting the injured party fully compensated for the cost of future medical care is a primary concern in most personal injury cases. The Plaintiff has one shot in court to get the jury to award an adequate amount of money to cover the cost of these future medical expenses. Expert and lay evidence is presented on the issue. Once the decision is made, the Plaintiff cannot return to court to seek more money.

It is not uncommon for medical charges to exceed the amount medical providers willingly accept as payment. This is typically the case, for example, for payments made by health insurance and Medicare. Providers often agree with health insurance carriers to accept reduced payments as payment in full. Medicare, on the other hand, has a schedule of allowable charges for every service, usually well below usual and customary charges. A provider that accepts Medicare cannot balance bill the patient.
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