| by

Proving that negligence caused an elevator accident injury does not require expert witness testimony, the New Jersey Supreme Court ruled recently – echoing the precedent set by other state courts, including Florida.injury attorney

The ruling is notable for the fact that a requirement of expert witness testimony (as necessitated in medical malpractice litigation) is often an expensive and cumbersome process. Although expert witnesses can undoubtedly be critical in establishing key elements of a personal injury or wrongful death case, a mandate such opinion be required to move beyond the summary judgment phase is a substantial hurdle.

Injuries and particularly deaths caused by malfunctioning elevators are increasingly rare (and on the whole, elevators and escalators are safer than stairs). Relying on a range of government data, the Center for Construction Research and Training and the National Institute for Occupational Safety concluded in 2006 that incidents involving elevators and escalators kill about 30 people and injury roughly 17,000 a year in the U.S. Improved technology – and particularly the cables, electronics and pulley systems – have improved drastically since, as noted in a 2013 report by The Washington Post. Those who install and maintain elevators have the potential to be injured due to falls, electrical shocks, muscles strains and other injuries related to confined spaces, scaffolds, cranes, rigging, hoisting heavy equipment and lock-out/tag-out accidents. The passenger safety profile, however, is much better, with the Consumer Product Safety Commission concluding the fatality rate is 0.00000015 percent per trip. Still, a 2008 study published in the journal Accident Analysis & Prevention concluded after a review of 14 years worth of data, the injury rate was 7.8 per 100,000. Continue reading

| by

A circuit court judge in Miami-Dade has ruled damage caps in a Florida medical malpractice lawsuit are unconstitutional and can’t be applied even when plaintiff previously rejected a defendant’s offer to voluntarily arbitrate the matter. medical malpractice attorney

It should be pointed out that in two previous Florida cases – N. Broward Hosp. Dist.c v. Kalitan in 2017 and Estate of McCall v. U.S. in 2014 – that damage caps in medical malpractice lawsuits are unconstitutional, based largely on the unfounded assertion that costs of medical malpractice insurance were out-of-control and needed to be curbed to avoid doctors fleeing the state to work elsewhere. The issue in this case, Defranko v. Poole, was whether that was still applicable despite plaintiff’s rejection of the defense offer to arbitrate, as outlined in 766.207(7)(k) and 766.209(4)(a). The laws stipulate that when a plaintiff is successful at trial but refuses a defendant’s initial offer to voluntarily arbitrate, claims for non-economic damages are capped at $350,000.

Plaintiff in this case had taken the medical malpractice claim to trial and jurors awarded $500,000. The defendants sought to have that award reduced by $150,000, a motion plaintiffs opposed on the grounds it was a violation of the Florida Constitution’s equal protection clause (as was determined in the Katilan and McCall).

The judge for the Eleventh Judicial Circuit Court declined to impose the cap (first implemented 30 years ago), finding it to be outdated and also agreeing with plaintiffs’ assertion that it is in violation of Florida’s Constitution by allowing a damage award to be lowered with no regard as to the severity of one’s injury. Continue reading

| by

The claims bill process for Florida personal injury and wrongful death lawsuits is once again coming under scrutiny for alleged lobbyist bias. This was after the Associated Press recently reported nearly half of the injury and wrongful death claims bills approved by state lawmakers in the last two years were awarded to victims represented by a lobbyist who is the brother of the state House speaker.injury attorney

So why are personal injury and wrongful death cases handled in the legislature? Aren’t they handled in the courts? For those who aren’t familiar with the claims bill process, it deals specifically with claims against state and local governments that have already been through the court system. Florida allows exception to sovereign immunity (the idea that you can’t hold government accountable) so one can sue the government for negligence pretty much just like any other entity (with some exception). However, if you win, there is a damage cap of $200,000 for any individual person and $300,000 per incident. Those who have ever endured a serious injury know just how quickly one can burn through that amount – just in medical bills alone. So jurors at trial may award plaintiff damages far in excess of that amount, but that is all a plaintiff can collect – that is, unless they can find a state lawmaker to file a claims bill on their behalf requesting to be awarded more compensation to which they are rightly owed. That bill is then presented to the entire state legislature for approval. Each damage award is considered as a separate item by lawmakers. It is a tedious process that tends to require a lot of “cooks in the kitchen,” but it can be an invaluable means of compensation for those seriously injured.

Cases can range from those injured in a car accident with a negligent city worker to the medical malpractice of a nurse employed by a government-owned hospital.

Allegations of lobbying bias isn’t really anything brand new. In fact, back in 2013 and 2014, lawmakers didn’t approve a single claims bill, in part due to the firm opposition of the then-Senate president, who argued the bills were passing based on the effectiveness of their lobbyists, not the actual merits of the claim.  Continue reading

| by

When someone dies as the result of medical malpractice in Florida, state law unfortunately limits the types of damages that can be recovered – and by whom. Florida injury lawyers have long railed the restrictions on who may proceed with a medical malpractice claim in the event the patient dies – restrictions for which powerful medical industry lobbyists pushed hard.medical malpractice lawyer

The result is provisions of the Florida Wrongful Death Act that restrict plaintiffs in medical malpractice wrongful death cases to:

  • A child under the age of 25;
  • An adult child who is dependent on decedent for financial support;
  • A spouse;
  • A parent of a child under age 25.

Unless decedent has a surviving loved one who falls under these narrow parameters, there is legally no claim allowed under law. Further, if a decedent dies while a case is pending and doesn’t have a survivor in this category to step in as a plaintiff, the case will die with them and the negligent health care provider is never held to account. That is something that should bother everyone who potentially needs medical care in Florida because it means facilities and providers providing care that falls below baseline accepted medical standards may never have to answer for it, leaving them free to practice and profit without consequence. Unfortunately, the Florida Supreme Court has upheld this as a legitimate means of reducing medical insurance costs.  Continue reading

| by

When a patient goes to see their primary care physician, a specialist, or goes into the emergency room for immediate care, they are relying upon the expertise of their respective medical providers to diagnose what is wrong with them, if the cause of the illness or other medical condition is not obvious, and to advise them of the proper course of treatment.

medical malpractice attorneyIn some cases, a doctor will say they will not know the full extent of the medical condition until they perform some type of exploratory surgery or diagnostic test, and then at that point will know the best course of treatment.  There is nothing wrong with this type of approach and it is often necessary to successfully treat a patient, or even save a patient’s life.  Continue reading

| by

A hospital system in Alabama was granted a new trial following a jury verdict for $10 million in favor of a man who sued for medical malpractice over his infant son’s treatment. The primary cause for reversal, the Alabama Supreme Court ruled, was the trial court’s decision to allow prior acts and omissions by the hospital system defendant. These facts were not relevant to the case at hand, justices ruled, and were ultimately highly prejudicial to the defense. medical malpractice attorney

Although this is surely not the news plaintiff wanted to hear, it does not mean the case is lost. It means medical malpractice attorneys will need to be fully prepared to thoroughly establish a failure to meet the applicable standard of medical care this scenario necessitated.

According to court records, the child ultimately suffered from seizure disorder, blindness and deafness as a result of misdiagnosed bacterial meningitis. Research published by the Mayo Clinic in Minnesota revealed approximately 20 percent of patients who sought a second opinion at one of the country’s top medical providers learned they had been initially misdiagnosed by their primary care provider. Study authors noted that correct diagnosis can be difficult because there are some 10,000 diseases and only about 300 symptoms. Our medical malpractice attorneys in West Palm Beach recognize that a misdiagnosis in and of itself is not enough to bring a case. One must show with expert witness testimony and other evidence that the physician’s diagnosis failed to meet the accepted standard of care for his or her specialty, region and facility. Expert witnesses must be vetted and hold the same general credentials as the defendant doctor or healthcare provider. Continue reading

| by

A U.S. veteran died from blood poisoning, due to what his family alleges was medical negligence in the form of a misplaced catheter.medical malpractice attorney

According to MensHealth.com, the medical malpractice lawsuit filed by his survivors indicates the patient suffered from both a traumatic brain injury and multiple sclerosis when he sought treatment at a Veteran’s Affairs clinic in Missouri for a condition called neurogenic bladder, common with MS patients. The condition makes it tough for patients to control their bladder function. After his catheter was changed at the facility, the 52-year-old was returned to the facility where he resided, where caregivers noted he had a fever – and large amounts of clotting and blood at the end of his penis. He was rushed to the hospital, diagnosed with a urinary tract infection and also sepsis, a life-threatening complication of bacterial infection.

Plaintiffs allege a CT scan conducted soon thereafter showed the balloon in the Foley catheter inflated not in the bladder, as is the intent, but in the urethra. He died of septic shock last month. Continue reading

| by

Walk into almost any hospital emergency room or intensive care unit – and what do you hear? There is the almost constant whoosh-and-honk of the ventilator. There might be an infusion pump, beeping in a high-pitch tone every six seconds or so. Blood pressure monitors will let out one single long tone after another. All these medical devices contribute to something we as medical malpractice attorneys recognize as “alarm fatigue.” medical malpractice

Although all of these monitors have their purpose, most of the time they don’t require any action. When medical professionals (nurses, in particular) grow accustomed to this constant din of noise – sometimes several hundred alarms daily – they can grow desensitized to it. Others, to avoid becoming overwhelmed, may turn the volume down. Some might simply ignore them. This could have serious and possibly deadly consequences to patients.

Patient safety advocates and medical malpractice attorneys have been raising concern about this issue for many years. However, it’s become an increasingly more pressing problem as technology evolves and the medical device community emerges with an increasing number of complex, loud machines – all intended to save lives, but contributing to this alarm fatigue issue.  Continue reading

| by

In every negligence lawsuit in Florida, there are four basic elements plaintiffs need to prove: Defendant owed plaintiff a duty of care, defendant breached that duty, the breach caused plaintiff’s injuries and plaintiff suffered monetary damages (medical bills, lost wages, etc.) as a result. Slip-and-fall lawsuits in Florida, however, are a bit trickier, thanks to a 2010 legislative update that enacted F.S. 768.055. This provision refers specifically to premises liability cases wherein there is a “transitory foreign substance” (something slippery that isn’t normally there) on the floor of a business establishment. slip-and-fall

This statute modifies the business’s duties when invitees are hurt by transitory foreign substances. It shifts the burden of proof in constructive knowledge negligence actions fully on the plaintiff. More specifically, the proof of the “breach” element here is statutorily constrained to those cases wherein plaintiffs can prove either actual or constructive knowledge on the part of the business owner.

What does this mean? Essentially, it is not enough that you were invited onto the site for the benefit of the business and encountered a dangerous condition that resulted in an injury. What you are also responsible to prove is that the store either had “actual knowledge” (the business/ its agents created the dangerous condition or was specifically informed about it) or “constructive knowledge.” Constructive knowledge is a bit trickier. It means the business knew or should have known about the condition because either it existed for a certain period of time during which the business – in the course of using ordinary care – should have discovered it OR it was a condition that occurred with regularity so the business should have foreseen it.  Continue reading

| by

Finding that an arbitration panel handling a medical malpractice lawsuit erred in the way it awarded loss of companionship and guidance damages to a husband and child in the death of a brand new mother, a Florida appeals court reversed a $4 million award of compensation.birth injury lawyer

The ruling is disappointing, but the family will still receive compensation and it’s important for medical malpractice lawyers and plaintiffs to understand exactly what went wrong. The primary issue was the fact that damage awards of this nature are considered non-economic damages. Although the Florida Supreme Court has ruled caps on non-economic damages are unconstitutional in medical malpractice cases (both personal injury and wrongful death), F.S. 766.207 holds that non-economic damages recoverable in arbitration proceedings can be limited to $250,000 per incident (serving as yet another example of one of the many ways arbitration agreements can harm injured or wronged plaintiffs). Here, the loss of companionship award was initially categorized as economic damages, and thus not subjected to the arbitration clause limit. It’s also worth noting that the court did not take issue with a finding that a loss of consortium award, finding it warranted.

According to court records from Florida’s Fourth District Court of Appeal, this claim involves the death of a wife and mother due to events that took place during an emergency C-section in August 2014. The mother had lost so much oxygen to her brain while in the hospital that she slipped into a vegetative state, from which she died three months later.  Continue reading

Contact Information

1615 Forum Pl #3-B
West Palm Beach, FL 33401
Toll Free: 877-425-2374Phone: 561-616-3000Fax: 561-688-0775

Available for Consultation
Throughout Florida

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

Please do not include any confidential or sensitive information in a contact form, text message, or voicemail. The contact form sends information by non-encrypted email, which is not secure. Submitting a contact form, sending a text message, making a phone call, or leaving a voicemail does not create an attorney-client relationship.

Copyright © 2016 – 2025, Halberg & Fogg PLLC
JUSTIA Law Firm Blog Design