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Anyone who has ever sought the services of a South Florida personal injury lawyer – whether for a car accident, slip-and-fall, or medical malpractice – has likely seen or heard the phrase “free initial consultation” in attorney marketing materials. But what exactly is a personal injury lawyer free consultation? Is it really free? Are you agreeing to hire that attorney by booking this consult?South Florida personal injury lawyer free consultation

As our South Florida personal injury lawyers can explain, a free initial consultation is something like a first date – except neither party picks up the tab because there isn’t one. (Initial consultations really are free.) But you can think of them as an opportunity to gather insight regarding the viability and potential value of your case, clarify your goals, get a sense of how the process will work, and determine whether the attorney you’re meeting is someone with whom you can develop a rapport, trust, and general ease.

Here, we offer a deeper dive into what these sessions are – and are not – and how you can come best prepared.

What Are the Obligations in a Personal Injury Lawyer Free Consultation?

Just as there’s no guarantee of a second date after the first, there’s no obligation for you to hire an attorney with whom you meet for a free initial consultation. In fact, it’s generally expected that you’ll meet with more than one personal injury lawyer before deciding which one to hire. Arranging several consultations will also provide you with a more well-rounded view of the key points in your case and what you might expect.

But just as you have no obligation to hire the attorney, the attorney has no obligation to take your case. They may provide you with information, and then regrettably inform you they won’t be taking your case. This usually happens if the attorney feels it’s not a case they can win, either because it isn’t strong enough or they don’t have the depth of skill, experiences, or resources to take it on. Because Florida personal injury lawyers accept cases on a contingency fee basis, meaning they aren’t paid unless their client wins, they are inclined to be selective.

Meeting with an attorney also doesn’t mean you’re obligated to file a lawsuit. In fact, many personal injury claims can be resolved through negotiation before it ever gets to the point of filing a lawsuit.

How Should I Prepare for This Consultation?

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Two years ago, a 53-year-old husband and father walked into a regional hospital with a common inflammatory condition – and was dead within a week. Now,  jurors have awarded his widow $20 million from the doctor who prescribed powerful pain medications for his pancreatitis without the benefit of constant machine-monitoring of his oxygen levels, despite his diagnosis of sleep apnea.Palm Beach medical malpractice attorney

As our Palm Beach medical malpractice lawyers can explain, a big part of this case was about what did NOT happen, as opposed to an active error. Specifically, according to reports on the trial, the doctor failed to even ask whether the patient had a history of obstructive sleep apnea. As several expert medical witnesses for the plaintiff testified, any physician who is prescribing a powerful narcotic should inquire specifically about this condition because it causes the muscles of the throat and palate to close, effectively stopping airflow. This can be perilous even under normal circumstances. But pain medications like Dilaudid, an opioid that is seven (7) times more powerful than morphine, are respiratory depressors. Combine the two, and the risk of a serious or fatal complication skyrockets.

For this reason, the expert medical witnesses testified, the patient should have been placed on a telemetry monitor or pulse oximeter that would have kept careful track of his vital signs while he slept under the influence of the Dilaudid.  Failure to do so, the experts said, fell far short of the standard of care.

The defendant had prescribed the patient increasing doses of the pain medication for more than 18 hours before another doctor discovered him the following afternoon, unresponsive in his bed, heart no longer beating. Emergency resuscitation efforts revived him, but could not reverse the damage done by lack of oxygen to the brain. He was pulled from life support six days later.

Another aspect of this Palm Beach medical malpractice case that our trial lawyers noted was that part of the defense strategy ended up backfiring and being a big win for the plaintiff. For context, this all happened within the first few months of the COVID-19 pandemic. You’ll recall that for a time, doctors, nurses, and pretty much all healthcare workers and facilities were being run ragged. Attorneys for the doctor cited this burnout and lack of personnel and resources as part of the reason why constant monitoring of the patient’s vitals wasn’t feasible. But as the plaintiff’s attorneys noted, this would be all the more reason for the doctor to order machine monitoring. Machines don’t experience pandemic-related burnout.

In essence, the plaintiff’s attorneys took what the defense legal team probably thought was one of its strongest arguments and flipped it on its head. Continue reading

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Damages in Florida personal injury actions are awarded with the intent of compensating plaintiffs monetarily for their losses. As our Palm Beach personal injury lawyers know, damages that first come to mind are things like medical expenses, loss of income, loss of earning capacity, and pain and suffering. But beyond the physical pain one has endured, there’s also the emotional response to that pain, which often includes the reasonable withdrawal from meaningful activities and relationships a person once enjoyed. This is what we refer to as “loss of enjoyment of life.”

Some jurisdictions include “loss of enjoyment of life” as part of the pain and suffering damage award, while others consider it a separate category of damages all its own.man in wheelchair in bedroom with wife suing for loss of enjoyment of life Florida Florida considers loss of enjoyment of life to be its own separate category of damages.

Let’s say that prior to a Palm Beach car accident, the plaintiff (injured person) was active in going to the gym, participating in recreational sports, volunteering with a local charity, and engaging in a satisfying physical relationship with their spouse. After the crash, they’re no longer able to enjoy any of those things, at least not in the same way as they once did. That’s loss of enjoyment of life.

The person would have been able to lead a normal lifestyle had it not been for the injury, but now they can’t. For this deprivation – in the past as well as what will be experienced in the future – plaintiffs can seek damages for loss of enjoyment of life.

As noted in Florida Civil Jury Instructions 501.2, there’s no exact standard for measuring such damage. It must, however, be “fair and just in the light of the evidence.” Non-economic damages such as loss of enjoyment of life are typically only awarded in Florida when one can prove that their injuries were serious and usually permanent.

The types of injuries that can impair your ability to enjoy life may include:

  • Traumatic brain injuries
  • Spinal cord injuries
  • Soft tissue injuries
  • Injuries resulting in chronic pain
  • Loss of sight or hearing
  • Severe scarring or disfigurement

Examples of Loss of Enjoyment of Life

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Often when Palm Beach sexual abuse lawyers talk about sexual assault cases in the legal system, people automatically think we’re discussing a criminal matter. It’s true that sexual assault and battery are criminal acts, and the criminal justice system metes out punishment to those proven guilty beyond a reasonable doubt. However, that’s not the only path to justice. Civil litigation is a means for the survivor to take the reigns and recover financial damages – from the perpetrator themselves as well as third parties whose negligence made the attack(s) possible in a civil Florida sexual assault lawsuit settlement or trial.Florida sexual assault lawsuit settlement

Three basic types of compensation one can pursue in a Florida civil case:

  • Economic
  • Non-economic
  • Punitive

Both economic and non-economic damages are classified together as “compensatory damages.” The intention is to compensate the plaintiff/sexual assault survivor for specific losses. Economic damages are for those things with a clearly identifiable price tag – medical bills, lost wages, etc. Non-economic damages are for things that don’t have a precise dollar figure – pain and suffering, emotional distress, loss of life enjoyment, loss of consortium/companionship, etc.

Punitive damages, on the other hand, are intended to punish the defendant. As noted in F.S. 768.72, punitive damages are still paid to the victim, but judges will only allow plaintiffs to pursue such damages in cases where the defendant engaged in intentional misconduct or gross negligence. This standard may be met in Florida sexual assault lawsuits filed directly against the perpetrator, but it’s a tougher case to make for third-party defendants – and that’s who most of these cases are against. That’s because insurance generally doesn’t provide coverage for crimes/intentional misconduct the way they do for negligence. So suing the attacker directly means you’re going after their personal assets – an endeavor that can be fruitless unless the defendant is personally wealthy.

What is the Average Florida Sexual Assault Lawsuit Settlement Amount?

Many civil sexual assault lawsuits in Florida are resolved through private negotiations between the plaintiff(s) and defendant(s). Because those payout amounts aren’t usually made public, there’s no easy way to provide an average for settlement amounts. They can range anywhere from thousands of dollars to tens of millions. Some of the bigger cases involving multiple plaintiffs and large organization defendants have even resulted in settlements in the hundreds of millions.

Jury verdicts favoring the plaintiff tend to be a bit higher than settlement amounts (which is part of the incentive for defendants to settle). A few examples over the years: Continue reading

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In a Florida criminal case, if you intentionally destroy/tamper with evidence, it can be a third-degree felony. But what if it’s a civil case? Palm Beach injury lawyer evidence

Anyone who files a Palm Beach injury lawsuit will soon come to understand the pivotal role of evidence. A fact can be 100 percent true, but virtually meaningless without concrete proof. More weight will always be given to assertions supported by strong evidence, as opposed to one side’s word versus another’s.

If evidence central to a civil case is destroyed, it’s called spoliation, and it doesn’t even have to be intentional for the court to impose sanctions. As for the exact penalty, the consequences depend on:

  • Who had control of the evidence.
  • Whether the possessor/controller was a party to the civil case and in some way benefited from its loss.
  • The extent to which the loss of that evidence prejudiced the other side in its ability to prove/disprove pivotal facts.
  • If the person/organization was a non-party to the case, whether they owed the duty – by contract, statute, or timely-served preservation/discovery request – to preserve the evidence.

Since the 1980s, Florida courts have repeatedly held that when physical evidence is lost, misplaced, destroyed, or otherwise made not available AND it fundamentally prejudices the other side’s chance to pursue/defend a claim, courts have the authority (and broad discretion) to impose sanctions. These can include:

  • The legal presumption that key facts pertaining to that evidence would have benefitted the other side.
  • Dismissal of the claim (when the plaintiff is the spoliator).
  • Granting default judgment in favor of the party prejudiced by the loss of that evidence.

Types of Spoliation in Palm Beach Injury Lawsuits

There are two basic types of spoliation: First-party and third-party. Continue reading

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As Palm Beach wrongful death lawyers, we understand just how precious and fleeting life can be. No dollar figure can ever truly quantify the depth of loss when someone we love is gone from us forever. That said, one of the things our attorneys strive to identify early in these cases is the potential monetary value, as it’s assigned within the framework of the civil justice system. This can seem callous, but it comes from a place of care – because it’s how we provide grieving loved ones with a crystal-clear picture of the costs/benefits of pursuing a legal claim against those believed responsible for the wrongful death. The reality is grief and healing is exhausting work – and it leaves little energy for legal long-shots. Empowering prospective clients to make informed choices is one of our guiding principles at Halberg & Fogg. Palm Beach wrongful death lawyers

To provide an accurate valuation, one of the first things that must be determined is economic damages. For those who may be unfamiliar, the term economic damages in tort law refers to the objective financial losses one has incurred as a result of the harm caused by the defendant. These are things like:

  • Medical bills.
  • Income loss.
  • Future income and benefits loss.
  • Funeral/burial expenses.

These are different from non-economic losses, which are more subjective adverse impacts, such as pain and suffering, mental anguish, and loss of consortium. (Loss of consortium is a separate claim that may be filed by either surviving spouses or children under age 25; if those don’t exist, they may be claimed either by adult children or decedent’s parents).

As of this writing, neither economic nor non-economic damages are capped in Florida. An effort by state lawmakers to cap non-economic damages in Florida medical malpractice wrongful death cases was struck down by the state supreme court in 2017.

F.S. 768.20 states that the personal representative of the decedent’s estate is the only person who has the right to move forward with a wrongful death claim, and they do so on behalf of survivor(s).

Lost Earnings

Economic damages from lost earnings in Florida wrongful death cases stem from two elements: Continue reading

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Every instance of Florida sexual assault of a patient by a healthcare provider is an egregious breach of trust and professional ethics. For doctors, it’s a violation of the sacred Hippocratic Oath to “first, do no harm.” But can it be considered “medical malpractice?”Florida civil sexual assault attorney Palm Beach

Medical malpractice is a type of civil claim. But not all civil claims against healthcare providers or institutions are necessarily for malpractice.

Our West Palm Beach civil trial lawyers are experienced in the successful handling of both civil sexual assault cases and medical malpractice claims in South Florida. While each case is fact-specific, we generally frame patient sexual assaults as torts of general negligence rather than medical malpractice.

For one thing, it can be argued that sexual assault does not “arise out of” the administration of healthcare, for which a breach of duty is governed by applicable standards of care. It’s an intentional act by the accused perpetrator, and one that may have been reasonably foreseeable/preventable had the facility and/or employer exercised a reasonable degree of basic oversight/security.

Beyond this, Florida medical malpractice claims are held to much more rigorous standards for proof burdens, allowable evidence, and timelines. There are a lot more legal and procedural hurdles to clear just to get your foot in the door with a medical malpractice claim compared to other types of civil claims. Prevailing in medical malpractice cases also requires more time, resources, and legal expertise.

Defendants in medical malpractice cases also may not be required to pay out as much as those sued for ordinary negligence. While Florida has no caps on medical malpractice injury economic damages (compensation for things like medical bills and loss of income related to medical negligence), it does cap non-economic damages for things like anxiety, mental anguish, trauma, pain and suffering, and loss of companionship. The cap is set at $500,000 for practitioner defendants, such as doctors and nurses, and $750,000 for non-practitioner defendants, such as hospitals and healthcare systems (assuming the victim wasn’t left dead or in a vegetative state, in which case, the damage award goes up slightly). Non-economic damages are often a big part of damages sought in Florida civil sexual assault cases.

The end result of requiring these of sexual assault to be filed as medical malpractice is that victims have have a tougher time filing and establishing liability. They’ll pay more to do so, wait longer for justice, and likely be compensated less.

Recently, reporters with ProPublica and The Salt Lake Tribune reported on this phenomenon in Utah. The expose detailed the nearly-five-decade career of a doctor who faced civil lawsuits by 94 former patients who accused him of sexual assault. Several of those claims have been dismissed because a lower court judge has held they should be filed as medical malpractice claims – and the filings fall short of the more stringent standards for such cases. The Utah Supreme Court has granted review of appeals by several of those plaintiffs. But if the lower court’s ruling stands, it will also mean foreclosing on many future claims, because the statute of limitations for medical malpractice claims in those states is shorter than for ordinary negligence. It will also mean that even successful cases would be subject to the medical malpractice damage caps.

Here in Florida, courts have ruled both ways.

Florida Court Rulings on Health Care Sexual Assaults as Medical Malpractice Claims

Some examples: Continue reading

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In the aftermath of a Southeast Florida car accident, there’s no requirement that you MUST hire a Palm Beach personal injury lawyer with a claim for damages. But there is strong statistical evidence that doing so will significantly improve your odds of prevailing with full and fair damages. Palm Beach injury lawyer

One analysis published by the Insurance Research Council a few years ago revealed lawyer-represented crash victims received damage awards that were on average 3.5 times higher compared to those who didn’t hire a lawyer.

This supports much of the previously-established data on this issue.

In a 2010 empirical evidence study published in the peer-reviewed Seattle Journal for Social Justice, researchers conducted meta analysis of other studies dating back decades on how access to a lawyer impacts the outcomes of civil cases – including personal injury claims. What they found was:

  • In every study reviewed, “lawyered-up” claimants were far more likely to win. (Exactly how much more likely varied from study-to-study, with most ranging somewhere from 20 percent higher to 4 times higher.) Part of this might be explained by the fact that civil lawyers tend to take on more meritorious cases. But then again, that’s one of the many benefits you get with hiring a Palm Beach injury lawyer: Confidence that you aren’t wasting your time because you’ve got a case worth pursuing.
  • To minimize the influence of the merit-based argument, another study involved civil lawyers providing their services at random to a group of sample litigants. The outcomes in their cases were then compared to those of similarly-situated (but non-represented) litigants. Those who had lawyers were 4.4 times more likely to win than those who represented themselves.
  • Another analysis concluded that in higher complexity civil cases (including serious personal injuries, medical malpractice, and wrongful death), plaintiffs represented by attorneys were 40 percent more likely to win.

Why Does Hiring a Palm Beach Injury Lawyer Make Such a Difference?

Some of the researchers’ theories about why hiring a lawyer makes such a difference in case outcomes: Continue reading

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Despite the fact that an electric scooter does not meet the technical definition of a “motor vehicle” by Florida law, the U.S. Court of Appeals for the 11th Circuit held that does not exempt an auto insurer from having to payout uninsured motorist (UM) benefits. West Palm Beach injury lawyer electric scooter injury

The court’s recent ruling in State Farm v. Spangler reversed the trial court’s previous grant of summary judgment in favor of the insurer.

The car insurance company had argued that its uninsured motorist policies were reserved solely for accidents caused by motor vehicles – which are defined in Florida’s Financial Responsibility Law as well as in the uninsured motorist statute.

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Over the last few years, there have been thousands of reported rideshare sexual assault allegations across the country – a fair number of those in Florida. Filing civil sexual assault lawsuits against rideshare companies like Uber or Lyft is somewhat complicated by the fact that drivers are not employees, but independent contractors. As such, they can not be held vicariously liable for the actions of employees for wrongdoing on-the-job.

However, as our Palm Beach sexual assault attorneys can explain, they can be held responsible for direct negligence with respect to inadequate background checks and failure to warn passengers of a driver with a violent criminal record.Palm Beach rideshare sexual assault lawyer There may in fact be several legal theories upon which you may base a successful claim against Uber, Lyft, or other rideshare company for failure to protect against sexual assault. This is true for drivers as well as passengers (as both have reportedly been attacked).

Two recent Florida rideshare liability lawsuits allege systemic shortcomings with respect to adequate background checks of drivers. One of those cases involves sexual assault, the other identity theft. (Even though the alleged crimes were dissimilar, the underlying issue with prior criminal records can establish a pattern.)

In one of those cases, a young woman in Tampa alleges an Uber driver sexually assaulted her after she scheduled a ride home after a night out. She was intoxicated, she said, and did the right thing by calling for an Uber driver to get her home safely. But according to the sheriff’s office, he did not take her home. Instead, he sexually assaulted her over a period of 4 hours. Eventually, he took her to the hotel where her friends were staying. Her friends said she returned with undergarments askew and having soiled herself. The following morning, after piecing together what happened, she went to a rape crisis center and underwent a sexual assault exam. When later questioned by police, the driver – who was twice the victim’s age – admitted to engaging in sexual intercourse with her, but insisted it was consensual. However, she said she was so impaired she has no memory of what happened. She did not consent – and could not have consented given how impaired she was.

The driver was arrested for sexual battery and has pleaded not guilty. But the Florida civil sexual assault lawsuit against Uber alleges the driver should never have been working for that company to begin with – especially knowing he’d be entrusted with the safety of vulnerable passengers absent any direct supervision. Continue reading

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