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magicians-hat-969631-m.jpg“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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scales of justice.jpgCorporate 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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drunk.jpgThere 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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Every personal injury plaintiff must plead and prove that the defendant owed and breached a duty of care and that the breach proximately (i.e., foreseeably and substantially) contributed to the specific injury suffered. These are the prima facie elements of a personal injury case.

Whether a duty exists is a matter of law for the court (judge) to determine rather than a factual question for the jury. The duty element of negligence focuses on whether the defendant’s conduct foreseeably created a broader “zone of risk” that poses a general threat of harm to others. See Kaisner v. Kolb, 543 So.2d 732, 735 (Fla. 1989) (citing Stevens v. Jefferson, 436 So.2d 33, 35 (Fla. 1983)). It is a minimal threshold legal requirement for opening the courthouse doors. See McCain v. Florida Power Corporation, 593 So. 2d 500 (Fla. 1992) (In footnote number 1, the court qualified and explained the concept as follows: “Of course, to determine this legal question the court must make some inquiry into the factual allegations. The objective, however, is not to resolve the issues of comparative negligence or other specific factual matters relevant to proximate causation, but to determine whether a foreseeable, general zone of risk was created by the defendant’s conduct.”)

On the other hand, the proximate causation element is concerned with whether and to what extent the defendant’s conduct foreseeably and substantially caused the specific injury that actually occurred. Id. at 502. This is a “much more specific factual requirement that must be proved to win the case once the courthouse doors are open.” Id. at 502. Generally, issues of breach, proximate cause and foreseeability as related to proximate cause are fact questions for the jury, not resolved by summary judgment. McCain and See Springtree Properties, Inc. v. Hammond, 692 So.2d 164, 167 (Fla.1997). Importantly, it is immaterial that the defendant could not foresee the precise manner in which the injury occurred or its exact extent. Restatement (Second) of Torts § 435 (1965). In such instances, the true extent of the liability would remain questions for the jury to decide. McCain at 503.
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barricade.jpgCourts and lawyers have turned the following legal principle — whether a party has a duty of care depends on the ability to exercise control — on its head.

These cases and countless others state the principle: Metsker v. Carefree/Scott Fetzer Co. 90 So.3d 973, 977 (Fla. 2d DCA 2012) (“In a premises liability case, the issue of whether a party has a duty of care does not depend on ownership or title to the premises. Instead, the appropriate inquiry is whether the party has the ability to exercise control over the premises.”); Regency Lake Apartments Associates, Ltd. V. French, 590 So.2d 970, 974 (Fla. 1st DCA 1991 (“In general, a cause of action for premises liability does not hinge on legal title ownership, but rather on the failure of the party who is in actual possession or control to perform its legal duty.”); Haynes v. Lloyd, 533 So.2d 94, 946 (Fla. 5th DCA 1988) (“The crux of the cause of action for premises liability is not legal title or ownership, but the failure of a person who is in actual possession and control (be it the owner, an agent, a lessee, a construction contract, or other possessor with authority to control), to use due care to warn or to exclude, licensees and invitees from areas known to the possessor to be dangerous because of operations or activities or conditions.”).

Too often, however, the principle is misunderstood and misapplied. It is most commonly misunderstood and misapplied to mean that lack of control means lack of duty as a matter of law. It doesn’t.
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scales of justice.jpgI have blogged here ad nauseam about the continual conflict between insurance companies and their insureds over claims. While carriers insist upon receiving premium payments timely, their all too common approach to the claims process is delay and deny.

Carriers have at their disposal a bag of tools designed to effectuate this delay/deny business model. Examination Under Oath (EUO) (an oral examination conducted under oath by an insurance company of an insured making a claim under a policy), Independent Medical Examination (IME), appraisal, policy application misrepresentation, refusal to cooperate are just some of the tools at their disposal. Some are statutorily prescribed, others are a matter of contract.

An insurance policy is a contract. While statutes control various rights and obligations between carriers and insureds, the terms of the insurance policy determine many others.

Courts frequently become embroiled in conflicts involving the application of contested policy provisions. One such conflict of significance was fought out in State Farm v. Curran, (Fla. 2014). The Florida Supreme Court framed the conflict as follows:

WHEN AN INSURED BREACHES A COMPULSORY MEDICAL EXAMINATION PROVISION IN AN UNINSURED MOTORIST CONTRACT, DOES THE INSURED FORFEIT BENEFITS UNDER THE CONTRACT WITHOUT REGARD TO PREJUDICE? IF PREJUDICE MUST BE CONSIDERED, WHO BEARS THE BURDEN OF PLEADING AND PROVING THAT ISSUE?

Curran, State Farm’s insured, sustained catastrophic injuries in a vehicle crash. Because the at-fault party’s insurance coverage was inadequate, Curran demanded from State Farm the $100,000 in UM available under his own policy. He gave State Farm thirty days to tender the money, estimating his damages to be $3.5 million because she suffered from reflex sympathetic dystrophy syndrome (RSD) type 1. On the 29th day, State Farm demanded that Curran undergo a Compulsory Medical Exam (CME) pursuant to the terms of the policy. Curran refused and proceeded to sue State Farm. A jury trial culminated in an award of $4,650,589 in damages to Curran.
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caduceus-1219484-m.jpgHere is my Letter to the Editor, word for word, that was published by the Miami Herald on June 25, 2014:

WRONGFUL DEATH CAP

Re the June 19 letter DeGennaro the best person to lead Miami VA: While Barth Green may be a prominent South Florida doctor, he is hardly a legal scholar. While writing in support of Dr. Vincent DeGennaro, his “close friend and respected colleague,” he tries to bolster his argument by adding gratuitous debunked comments about doctors fleeing Florida because of its torts laws.

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people.jpgIt seems that not a television or radio ad segment goes by today without the marvels of testosterone therapy being touted as the fountain of youth. Be especially cautious because buying the claims can be hazardous to your health! Not only that, but the benefit claims are in doubt.

While prescription testosterone therapy has been approved by the FDA for the treatment of men for a recognized medical condition known as hypogonadism, the ad campaigns run by the makers of testosterone products Androgel and Axiron cleverly promote testosterone usage as the fountain of youth for those who merely have low testosterone levels due to the natural aging process. Low testosterone levels due to the natural aging process is a different condition than hypogonadism, which is a “clinical syndrome that results from the failure of the testis to produce physiological levels of testosterone (androgen deficiency) and a normal number of spermatozoa due to a disruption of one or more levels of the hypothalamic-pituitary-testicular axis.”

Why should this matter? Because testosterone usage has been associated with many harmful side effects, including:

Lawsuits are starting to be brought against manufacturers for those who have suffered injuries as the result of testosterone usage, with the chief allegation against them being that the dangers were known but suppressed for economic gain.
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truck2.jpgVicarious liability has been recognized in Florida since 1920. Southern Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629 (1920). As applied to motor vehicles, the legal concept allows the owner of a vehicle to be held liable without fault for damages caused by the negligent operation of the vehicle by a consensual driver. This is known as the Dangerous Instrumentality Doctrine.

The financial exposure of owners for damages under the Dangerous Instrumentality Doctrine, as contained in section 324.021(9)(b)(3), Florida Statutes, is lower than it is for consensual drivers. For the statutory section to apply, the vehicle must have been loaned to the permissive user, as demonstrated by the following language: “3. The owner who is a natural person and loans a motor vehicle to any permissive user….”

Disputes have arisen over the meaning of the word “loans” in this section. Recently, in Youngblood v. Villanueva (opinion filed May 21, 2014), Florida’s Second District Court of Appeal held that the vehicle involved in a crash, resulting in a wrongful death, had not been loaned. The facts of the case were set forth in the court’s opinion:

The testimony at trial established that Youngblood consigned his uninsured vehicle to Teddy Aponte of Extreme Auto Sales with instructions to sell the vehicle. Youngblood testified that he never wanted to see the vehicle again after he handed the keys to Aponte, and he gave him no time limit in which to sell the vehicle. Because Aponte was driving the vehicle for his personal use when he struck and killed Eduardo Villanueva, Youngblood contended that this constituted a theft or conversion which exempted him from liability.

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