South Florida Injury Lawyer Blog

Drowsy Driving is a Killer on Florida Roads

December 21, 2017 | by David J. Halberg, Esq.

In the midst of the bustle of the holidays, it’s not uncommon for drivers to sacrifice sleep to get where they’re going. While there is a great deal of (deserved) focus on distracted driving and drunk driving during the holidays, drowsy driving is another – often overlooked – catalyst for car accidents in Florida that deserves some attention. car accident attorney

A study by the AAA Foundation for Traffic Safety reveals that 21 percent of all fatal crashes involved a driver who was fatigued, as did 13 percent of all car accidents in which a person was hospitalized for personal injury. That amounts to 109,000 injury crashes and 6,400 deadly crashes every single year attributed to a sleepy driver.

Although a number of states have enacted laws that classify drowsy driving as a criminal offense when it results in a death, Florida is not among those. However, drowsy driving can still be considered negligence if the individual knew or should have known they were too tired to drive. That’s because every motorist has a legal duty of care to other drivers to use reasonable caution behind the wheel. Driving while tired can be considered a breach of that duty because it is a failure to use reasonable care. Still, such claims can be difficult to substantiate, which is why it’s important to have an experienced South Florida injury attorney on your side who can carefully assess the merits and strength of your case. Continue reading

Florida Medical Malpractice Records at Center of Ongoing Legislative Battle

December 13, 2017 | by David J. Halberg, Esq.

More than 10 years ago, Florida voters soundly agreed that “adverse medical incident reports” should be public knowledge to patients. That measure was known as “Amendment 7.” However, there is now an effort underway to limit access to this information once again, driving concern that physicians and other health care providers will be able to more easily conceal wrongdoing. medical malpractice

A former general counsel to the governor, now a member of the state’s Constitution Revision Commission, has formally proposed an amendment to the Florida Constitution that would place limitations on the kinds of records that could be used in medical malpractice litigation against physicians, hospitals and other health care providers.

The reason these records are so important is because they allow the public – and medical malpractice claimants in particular – to slash through the red tape. Prior to the passage of Amendment 7 (which was done with an overwhelming majority), it was incredibly common for hospitals to make it difficult to obtain prior records of wrongs by a given physician or hospital, characterizing the data as privileged by risk management or peer review. Continue reading

Take Florida Medical Malpractice Statute of Limitations to Heart

December 5, 2017 | by David J. Halberg, Esq.

A statute of limitations is a deadline for filing a lawsuit (or in a criminal case, a formal charge). If your injury or wrongful death claim is filed after that deadline, it will most likely be dismissed. The state of Florida sets the statute of limitations for medical malpractice cases at two years, pursuant to F.S. 95.11(4). That means one has two years from the time the patient (and, in some cases, a family member or guardian) knew about or should have known about the fact the injury occurred and that there was a reasonable chance it was caused by medical malpractice. This differs from the general negligence claim deadline of four years. The wrongful death statute of limitations in Florida is two years from the date of death. medical malpractice attorney

Unless there is proof of misrepresentation or fraud or concealment, there is no way to pursue a medical malpractice case beyond four years. This is what’s known as the statute of repose. That means even if you didn’t know about the medical malpractice and there wasn’t any reasonable way to find out, four years is the absolute cut-off. If you can show fraud, misrepresentation or concealment, that statute of repose may be extended to seven years. However, that can be very difficult to prove.

All of this means that as soon as you suspect you or a loved one may have been the victim of medical malpractice, you need to speak with an attorney to find out the best way to investigate and determine whether you have a valid claim.

Study: Electronic Health Records Have Alarming Error Rates

November 26, 2017 | by David J. Halberg, Esq.

Digitization of medical records has been shown to improve patient safety. However, a new study by The Doctors Company, a physician-owned medical malpractice insurer, shows that electronic health records used by 90 percent of hospitals and 80 percent of doctors’ offices, are at the root of many new medical malpractice lawsuits. medical malpractice lawyer

The firm reported that an analysis showed the number of claims involving electronic health record errors as a contributing factor has risen steadily over the last decade.

The potential liability risks to the medical malpractice insurer were first noted beginning in 2007. Between then and 2010, there were 2 total claims wherein these records were a contributing factor. By 2013, there were 28 such claims. There were a total of 97 such claims closed between January 2007 and June 2014. Between July 2014 and December 2016, there were 66 claims involving errors with electronic health records. Continue reading

Florida Slip-and-Fall Claims Could be Slashed With Better Flooring

November 20, 2017 | by David J. Halberg, Esq.

Florida slip-and-fall claims have an undeserved reputation of being exaggerated or a means to make an easy buck with an injury lawsuit . The truth of the matter is falls are one of the leading causes of unintentional injuries and deaths nationally. Falls can occur at home, in health care settings, at work and in business locations (i.e., restaurants, hotels, retail stores, amusement parks, etc.). Work-related falls will most likely be covered by workers’ compensation insurance. Falls involving patients in nursing homes or hospitals may be actionable if there is evidence of negligent care or supervision. Those injured in a fall while patronizing a business may have a cause of action if it can be proven the business breached a duty of care to its customers. That’s no minor hurdle. slip and fall attorney

In 2010, Florida lawmakers passed F.S. 768.0755, which makes it more difficult for those injured in a slip-and-fall involving a transitory foreign substance in a business establishment to obtain compensation. One must prove the business had actual or constructive knowledge of the dangerous condition and failed to remedy it. Actual knowledge would involve a situation where employees either created the hazard or were put on notice of that particular spill. Constructive knowledge involves circumstantial evidence showing the dangerous condition existed long enough the business should have discovered it in using ordinary care or that the condition occurred regularly so was foreseeable.

Although Florida slip-and-fall lawsuits can motivate businesses to be proactive, these incidents nonetheless still occur. A recent CNA Slip and Fall Study Report found that inadequate flooring was the primary culprit in most of these cases. Of the thousands of sites analyzed, the insurance and risk management services provider found that roughly half failed in the dynamic coefficient of friction level (which per the American National Standards Institute is 0.42). Continue reading

Fatal Cancer Diagnostic Error Results in $10M Verdict

November 11, 2017 | by David J. Halberg, Esq.

When it comes to the prevalence of medical errors, those involving missed diagnosis, misdiagnosis and delayed diagnosis are the most common. Information gleaned from the National Practitioner Data Bank (an electronic collection of all medical malpractice settlement payments made since 1986), diagnostic errors are the most common source of payments and often the most costly and dangerous to patients’ health. medical malpractice lawyer

It’s true that medication errors and on-site surgical errors are very real problems. However, in terms of the sheer volume of cases it’s substantial, with an estimated 80,000 to 160,000 patients suffering permanent disabilities from misdiagnosis annually.

One such case out of South Carolina recently resulted in a $10 million jury verdict to the husband of a woman who died of cancer after there was a communication error between doctors. This resulted in significant delays in life-saving surgery, The State newspaper reports. The doctor and the practice for which he works initially offered to settle her claim for $250,000 – an offer that was declined. Continue reading

$45 Million Verdict for Parents of Medical Student Killed in West Palm Beach Crash

November 5, 2017 | by David J. Halberg, Esq.

A chain reaction tractor-trailer crash in West Palm Beach that injured one and killed two – including a 29-year-old medical student – recently resulted in a $45 million verdict in favor of the med student’s parents. truck accident lawyer

As our West Palm Beach truck accident attorneys can explain, these kinds of cases tend to result in higher verdicts and settlements than your typical car accident lawsuit for several reasons, including:

Because of the size disparity between large trucks and passenger cars, any collisions between the two are likely to result in severe injuries to occupants of the smaller vehicle. More severe injuries and deaths are a greater loss to the victim and loved ones.
Anytime a trucking company or construction firm is involved in a personal injury or wrongful death, there are usually numerous defendants, many with varying degrees of liability.
Trucking companies and construction firms – particularly construction companies that work roadside – carry high liability insurance policies. Although insurance coverage does not determine the amount of damages (courts are often careful to make sure jurors aren’t informed of the existence or amount of this coverage, as it’s considered prejudicial), the fact that it’s there improves the chances that if high damages are awarded, they will actually be paid. Florida requires passenger vehicle motorists to be financially responsible for a minimum of $20,000 in bodily injury (which is paid in addition to personal injury protection – PIP – benefits of up to $10,000). Meanwhile, federal law requires all truckers to carry at least $750,000 in liability coverage. Those that haul hazmat materials have to carry at least $5 million.

Florida Jury Orders Eye Doctor to Pay $13M for Botched Surgery

October 29, 2017 | by David J. Halberg, Esq.

An 80-year-old South Florida man was awarded $13 million after a botched cataract surgery that a jury concluded was the result of medical malpractice.

NBC-6 Miami reports jurors concluded the medical center where the surgery was conducted was liable in a case involving the negligence of an opthalmologist with whom the center contracted for routine eye surgeries. The surgery resulted in patient suffering total blindness in one eye.

As our medical malpractice attorneys in Miami can explain, normally medical centers (hospitals, clinics, nursing homes, etc.) aren’t vicariously liable for the negligence of independent contractors. Instead, they are only vicariously liable for the work of employees. While it must seem to many patients that doctors who work at these facilities work for them, more often than not, this isn’t the case. However, in this case, the jury determined the physician was an actual employee of the center, even though he was practicing on contract.

Vicarious liability stems from a legal doctrine of respondeat superior, which is Latin for “let the master answer.” It means an employer can be liable for the negligent acts of employees who were acting in the course and scope of employment. It does not require proof that the facility itself did anything directly wrong, only that it employed the person who was negligent and that person was acting as an employee at the time the injury occurred. Continue reading

Government Finds Nursing Home Abuse Unreported, Despite Law

October 21, 2017 | by David J. Halberg, Esq.

A recent government audit revealed more than 1 in 4 cases of possible sexual and physical abuse of nursing home patients was never reported to police. The inspector general’s office for the Department of Health and Human Services largely placed the blame on Medicare for failing to enforce a federal law requiring immediate notification of authorities, including law enforcement and state health departments. nursing home abuse lawyer

The inspector general released an “Early Alert” on the matter, which is part of a larger ongoing investigation into nursing home abuse and neglect. Florida was among the states included in the large sampling of cases. Given the Florida Health Care Association’s report that the population of those over 65 will double by 2026 and that 69 percent of those are anticipated to need some type of long-term care, this is not an issue we can afford to ignore.

While the number of nursing home residents continues to climb – it’s currently at 1.4 million – issues with quality of care are ongoing. And even though there is an increasing awareness about the potential dangers, serious violations of patients’ rights continue. Continue reading

Bankruptcy of Negligent Driver Does not Negate UIM Insurer’s Liability

October 15, 2017 | by David J. Halberg, Esq.

Roughly 3 million people are injured annually in car accidents across the U.S. Meanwhile, there are approximately 800,000 bankruptcies filed every year, according to the Administrative Office of the U.S. Courts. In some instances, people who cause car accidents soon thereafter file for Chapter 7 bankruptcy. Except in cases of drunk driving injuries, a Chapter 7 bankruptcy can effectively releasing a negligent driver from the obligation to pay for personal injuries they caused prior to the bankruptcy filing. car accident attorney

However, as a recent case weighed by the Alabama Supreme Court illustrates, that does not mean injured crash victims are without options. Although this is an out-of-state case, there is the potential for similar cases to arise in Florida, and justices are known to look to sister court rulings when weighing similar legal issues.

According to court records, a husband and wife (plaintiffs) were injured when their vehicle was rear-ended by a vehicle driven by defendant driver. Plaintiffs sued defendant, alleging her negligence caused the crash and their injuries. Their complaint also named their own auto insurer, as they sought to recover underinsured motorist (UIM) benefits. Continue reading