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Reproduced below is a letter published in the September/October 2010 issue of The Florida Bar Journal. It was written by my friend, collegue, superb trial lawyer, and advocate for the underprivileged, Cris Boyar. The letter exposes the dirty propaganda disseminated by the insurance industry regarding PIP (Personal Injury Protection) lawsuits. A must read.

Elimination of PIP Multipliers Response

I read the slanted article, “Putting the Lid Back on Pandora’s ‘Jar’: A Clarion Call for the Elimination of Contingency Risk Multipliers in Florida PIP Litigation,” by insurance defense lawyers Douglas Stein and Donald Blackwell in the July/August issue. While it is long on words, it is clearly short on reality. The article fails to mention that insurance companies drive up legal fees by causing expensive and protracted litigation. In the real world, insurance companies not only routinely and unreasonably deny valid claims, but when sued, the insurers file frivolous defenses, deny admissions that should be admitted, propound significant discovery, object to basic discovery, force countless hearings, schedule numerous unnecessary depositions of collateral witnesses, and demand jury trials that can last for days. If the insurer loses, it demands attorneys’ fees hearings and files appeals. Then, after all of the litigation that it caused, the insurer complains the legal fees awarded against it are too high and do not bear a relationship to the amount in controversy. The hypocrisy is obvious to those who sue insurance companies for denying valid claims.

If an insurer wants to limit its exposure to legal fees and costs, it can simply pay valid claims timely. It could also pay the claim in response to the statutorily mandated presuit demand letter, which allows 30 additional days to pay without risk of paying attorneys’ fees. If it is sued for not paying a claim, it can instruct its defense lawyers to agree to a bench trial, admit allegations and admissions, and agree to narrow the issues. If the insurer believes it will lose the case, the insurer, at any time, can simply confess judgment to stop the clock. Alternatively, the insurer can file an offer of judgment. If the insurer then prevails in the litigation, the insurer will be reimbursed its attorneys’ fees and costs by the insured or the medical provider.

Rather than fall prey to insurance industry propaganda, the public should realize the insurance industry has embarked on a strategic campaign designed specifically to poison the pool of potential jurors and bar its insureds’ access to courts, while at the same time filling its coffers with premiums Florida citizens are legislatively mandated to pay.

It must be pointed out that multipliers are very rarely awarded in PIP cases. Most lawyers who handle PIP claims reject a significant number of cases for various reasons. The unfortunate result is that many insureds and medical providers have no recourse when the insurers wrongly and routinely deny valid PIP claims. This is exactly what some of the billion dollar insurance companies hope to accomplish. Accepting premiums and denying claims is a very profitable business model.

The multiplier is the only tool available to encourage competent counsel to accept the most difficult cases that virtually every other lawyer would reject. The applicability of the multiplier should be preserved by the legislature. The trial judges, observing the conduct of counsel for both sides, should be trusted to make the correct decision based on existing Florida law.
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For the past twenty plus years, the quality and value of workers’ compensation benefits in Florida have diminished. This is especially true for medical benefits.

There was a time in Florida when injured workers had a strong say in the selection of their primary care physician. In turn, the primary doctor could choose other physicians to provide specialized care. The employer/carrier was required to pay for all reasonable and necessary services.

Because this system limited the ability of employers/carriers to control the injured workers’ medical care, they petitioned the legislature for changes. The legislature answered their call … or so they thought.

In 1994, the Florida Legislature met in Special Session to revamp the workers’ compensation system. A primary focus was medical benefits. One of the brainstorms that came out of the Special Session was Managed Care.

Employers and carriers believed that a managed care system would give them greater control over the medical care received by injured workers. The plan was to limit the pool of doctors who would be allowed to treat injured workers. However, it did not work as planned because most managed care lists of authorized providers included doctors who were friendly to injured workers. Injured workers were free to choose from the list. The system survived until 2002.

In 2002, the Republican-controlled Florida Legislature, with strong backing from Governor Jeb Bush, dramatically limited the amount of control injured workers would have over their medical care. Although managed care remained in place, employers/carriers were given an alternative option of choosing all doctors. No longer would injured workers be allowed to choose their own doctors.

Not surprisingly, employers/carriers prefer this option over the more generous managed care system. Accordingly, it is rare today to find an employer or carrier utilizing managed care. (Also during this legislative session, the right of injured workers to second opinions and carrier-paid independent medical examinations (IMEs) were eliminated, making it more difficult to challenge the opinions of the employer/carriers’ hand-picked doctors.)
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Florida Statute Section 768.21 outlines who is eligible for benefits under Florida’s Wrongful Death Act. (See this blog for an easy-to-understand breakdown.) With one exception, the statute – although debatable as to its fairness – treats all victims alike. The exception? The survivors of those who have died from medical malpractice/negligence.

Sections (3) & (4) of Statute 768.21 determine the eligibility of children and parents of decedents to compensation under the Act. Section (3) provides that “[M]inor children of the decedent and all children of the decedent if there is no surviving spouse, may also recover for lost parental companionship, instruction, and guidance and for mental pain and suffering from the date of injury,” while Section (4) declares that “[E]ach parent of an adult child may also recover for mental pain and suffering if there are no other survivors.” (Florida Statute 768.18 defines “minor children” as children under 25 years of age, notwithstanding the age of majority)
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The United States Congress has declared that the purpose of the Family Medical Leave Act (FMLA), located in Chapter 28 of Title 29 of the U.S. Code , is “to balance the demands of the workplace with the needs of families, to promote the stability and economic security of families, and to promote national interests in preserving family integrity.” Section 2601(b)(1).

To meet this goal, the FMLA is designed “to entitle employees to take reasonable leave for medical reasons, for the birth or adoption of a child, and for the care of a child, spouse, or parent who has a serious health condition.” 29 U.S.C. Section 2601(b)(2).

An employer who violates the FMLA, may be required to compensate a damaged employee as follows:

  • Pay money damages equal to the amount of any wages, salary, employment benefits, or other compensation denied or lost to such employee by reason of the violation; or
  • In a case in which wages, salary, employment benefits, or other compensation have not been denied or lost to the employee, pay any actual monetary losses sustained by the employee as a direct result of the violation, such as the cost of providing care, up to a sum equal to 12 weeks of wages or salary for the employee;
  • Pay the interest on the amount described in the first bullet point calculated at the prevailing rate; and
  • Pay an additional amount as liquidated damages equal to the sum of the amount described in first bullet point and the interest described above, except that if an employer who has violated section 2615 of this title proves to the satisfaction of the court that the act or omission which violated section 2615 of this title was in good faith and that the employer had reasonable grounds for believing that the act or omission was not a violation of section 2615 of this title, such court may, in the discretion of the court, reduce the amount of the liability to the amount and interest, respectively; and
  • Provide such equitable relief as may be appropriate, including employment, reinstatement, and promotion.

    • (These elements are contained in Section 2617 of the Act)

The employee has a duty to mitigate damages, in other words, diligently seek new employment. Failure of the employee to do so may preclude an award of back pay for the period during which employment was not sought. See, e.g., Miller v. AT&T Corp., 250 F.3d 820, 838 (4th Cir. 2001).

The award available under the first bullet point is considered compensatory or actual damages. Actual damages differ significantly from the liquidated damages award under the FMLA. Instead of being actual damages, the liquidated damages are a penalty for failing to act in good faith and with reasonable grounds for believing that its act or ommission was not a violation of 29 U.S.C. Section 2615. Importantly, the burden is upon the employer to prove both elements.
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To the surprise of many, most of the doctors who work in Florida’s hospital emergency rooms are not hospital employees. Instead, they are independent contractors. (It is quite rare for Florida hospitals to employ their ER physicians.) Equally surprising is that Florida law does not hold a hospital liable for a doctor’s negligence simply because the hospital grants privileges or credentials to the doctor, unless there was negligence in the credentialing. These matters become important when emergency room malpractice causes serious personal injuries and death.

With the reality of arbitrary statutory damage caps limiting the monetary exposure of medical negligence defendants, it is often necessary [for the victim or the victim’s family] to recover from multiple parties to be justly compensated for serious injuries or death. For such damages resulting from negligent emergency room services, the hospital would seem to be a natural target. Not so.

Today’s hospitals typically take the position that the doctors working in their emergency rooms are independent contractors, individuals for whom they have no legal liability when things go wrong. Strictly speaking, they may be right. Independent contracts are not employees, whose negligence subjects the employer to liability under the principle of respondeat superior (the Latin meaning is ‘let the master answer’).

Thankfully, Florida law does not accept the strict view of this consequential subject.

The main legal principles being used to hold hospitals accountable are:

  • Non-delegable duty
  • Actual agency
  • Apparent agency
  • Negligent credentialing

Non-delegable duty. This theory, which is not limited in its application to medical negligence cases, is most often utilized for activities involving the risk of serious injury or loss. In the context of emergency rooms, the risk is addressed by statutes and rules which set forth strict guidelines for modes of operation. Recent court decisions have relied on these rules and regulations to find that hospitals have a non-delegable duty to provide various non-negligent services in its emergency rooms.

Actual agency. The elements necessary to establish an actual agency relationship are: acknowledgment by the principal that the agent will act for him, the agent’s acceptance of the undertaking, and control by the principal over the actions of the agent.

Apparent agency.The main element of this principle is the impression through words and actions a hospital conveys to the public about its ER. Through advertising and appearance (e.g., uniforms; logos; paperwork; etc.), the general public can reasonably believe that an ER’s physicians are hospital employees. This is usually a fact question requiring a decision by the trier of fact, typically a jury.

Negligent credentialing. Involves granting privileges to an unqualified physician to practice medicine in the hospital. The mechanism for allowing a doctor to ply his trade in a hospital setting is supposed to be more than a rubber-stamp process. Thoughtful consideration based on rigorous standards should be followed.
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There is a distinct lack of unanimity throughout the country regarding the appropriate duty, if any, of a landowner for dangers presented by natural hazards on the landowner’s property. One camp applies the so-called “agrarian rule,” which provides that a landowner owes no duty to persons harmed by natural conditions on the land. The other camp applies the principle that a landowner may owe a duty of care for dangers posed by natural conditions when an invitee uses the property in a reasonable manner. (See this blog for the meaning of the legal term “invitee.”)

(Examples of such natural hazards include: tree roots obscured by leaves; view of sidewalk blocked by foliage; hole in ground covered by tall grass; traffic control device – e.g., stop sign, yield sign – obstructed by tree branches.)

Thankfully, Florida falls into the latter camp.
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Florida insurance adjusters often argue that vehicles sustaining damage costing in excess of 80% of fair market value (or replacement cost) to repair, must be declared a total loss. The argument is made with such conviction that most people, including many attorneys, believe it is true. It is not true. It is an urban myth.

The truth is that insurance companies must pay for repairs costing up to 100% of fair market value. (Florida Statute 319.30(3)(a)2.)

For many owners, repairing makes more sense than replacing. This is especially true for owners who owe little or no money on their vehicle.

Replacement usually requires owners to lay out more money than they receive as fair market value from the insurance companies. The main reason why is because insurance companies use databases that understate fair market value. Thus, the carriers try to pay less than the actual replacement cost.
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Surprisingly, most of the clothing sold and manufactured in the United States today is regulated by a law enacted in 1953, the Flammable Fabrics Act. The law was enacted to remove only the most flammable garments, leaving unregulated countless other dangerous fabrics. As a result, every year thousands of people are injured and nearly two hundred die due to clothing-related burns. The Act provides minimal protection and is sorely outdated. More can and should be done.

An example of what can be done is the Children’s Sleepwear Standards Act, enacted by Congress in the 1970s. The goal of this Act was to protect children up to the age of 12 years from the unreasonable risk of burns caused by burning sleapwear. It has worked. The standards have resulted in a drastic reduction in clothing-related burn injuries and death to children.

Adults should not be mislead by labeling announcing the burn resistance or safety characteristics of their clothing. Language such as “Class one normal flammability” or “does not ignite,” terms commonly used in the industry, do not necessarily mean that a fabric will not ignite under real world conditions. Consider this: ordinary newsprint passes the standard of “Normal flammability.”
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“Umbrella” insurance is a relatively inexpensive way to obtain significant increases in important insurance policy coverage limits.

Consumers are familiar with motor vehicle and homeowners insurance policies. They are separate policies covering separate and distinct risks. Each has its own policy limits and premium charge.

Umbrella insurance is a distinct coverage that is purchased as a stand alone package to supplement other, separate policies, such as the the motor vehicle and homeowners examples mentioned above.

Example: A motor vehicle policy may provide bodily injury coverage of $10,000 or even $100,000. Separately, the homeowners policy (similar renters insurance is also available) may provide the same coverage limit.

Bodily injury coverage pays for personal injuries and death caused by the insured’s negligence. Although $100,000 in coverage is enough in most cases, in some cases it is not nearly enough. Some serious injuries command $1,000,000 and more in damages, while wrongful death damages can reach into the multiple millions. In these cases, the protection afforded by the primary policy is insufficient. This is where umbrella coverage comes into play.
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The remedies available under Florida’s workers’ compensation system and its personal injury laws are significantly different in many ways. The most important difference may be that workers’ compensation does not compensate for pain and suffering (non-economic damages). For this reason, many people wish to pursue their remedy under the personal injury system.

Easier said than done….

The workers’ compensation system is essentially a no-fault system. Once eligibility is established, the benefits are supposed to begin. Establishing eligibility is usually as simple as showing that the accident occurred in the course and scope of employment. Fault is rarely an issue.

It is because of this important element that injured workers have lost the right to be compensated for pain and suffering. This element also accounts for the employer having almost absolute immunity from lawsuits seeking damages under the personal injury system.

The language granting the immunity is contained in Florida Statute 440.11(1). The exceptions [to the immunity] are contained in Sections 440.11(1)(a) & (b).

Exception (1)(a) applies to employers who have failed to secure workers’ compensation insurance or its statutory equivalent. This employer can be sued for workers’ compensation benefits or personal injury damages under traditional theories of negligence. The successful negligence litigant may be awarded compensation for pain and suffering. (Most employers are properly covered. Unfortunately, the ones who are not, commonly do not have enough money to provide workers’ compensation benefits or pay personal injury damages.)
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