Florida Injury Lawyer Blog

Sitting in a French bakery before it opens is one of life's great pleasures. I arrived late last night to Santa Fe, New Mexico to attend the American Association for Justice's Leaders Forum. The dry chill of an early morning in New Mexico is quite a different experience than I typically find waking in the humid dankness of Miami's early hours.

With the our Blog's addition of its first official Managing Editor, Bruce Musgrave, I made a promise to myself, and I guess a bit of a challenge to Bruce that I would try to write a post every day for our first month of collaboration. Together I hope we can provide a slightly different perspective than a typical lawyer's blog.

Like most everything I have ever done in life, I know no balance or moderation. In fact, my slogan, unlike Nike's "Just Do It" or Coke's "Have a Coke and a Smile" would be "Know no Balance." My slogan has been many times in my life both a blessing a curse.

Many lawyers have blogs now; in fact, most people I know have blogs, including my 14-year-old daughter, on subjects ranging from fashion to frogs. Lawyers tend to blog as a marketing tool, with strategically designed posts stuffed with keywords implanted to trigger search engines in the hopes of finding clients. I know this because many of my blog posts including this one have certain phrases that I know people looking for personal injury lawyers in Florida might plug into a Google search.

Back to the bakery for just a moment, when I was in college at the University of Miami in the mid-eighties, I was uncertain what I would do for a living. My father was eager for me to be a lawyer or at least go to law school; my mother urged me to be a journalist. And of course I had no idea, so I took one of those aptitude tests offered at most University career planning offices. The answer came back that I should be either a baker or a florist. Ironically I cannot bake or even select flowers correctly from the street-side vendors in Miami. But I do like to write, and I love being a lawyer, so perhaps like most things in life a parent does know best?

So why Santa Fe in May? The American Association for Justice is an organization based in Washington, DC that provides educational, political, and networking support for personal injury lawyers across the country. AAJ's current president, the brilliant Texas lawyer, Mary Alice McLarty, is hosting this year's Annual Leaders Forum Retreat. It is an important opportunity for lawyers from around the country to get away from our busy law firms and lives and collaborate about our practices in an informal setting and strategically plan for the future. This retreat is different from the typical convention because of its intimate setting, and most attendees bring their "significant" or "more than significant" others. Rather than being one of a thousand attendees crammed into a giant overwhelming hotel conference center, just a few dozen lawyers confer in a relaxed and beautiful venue.

For example, I am a Miami car accident attorney, but I also sue stores and hotels for slips and falls, hospitals and doctors for medical malpractice, cruise lines for accidents, and companies that make artificial hip implants and defective surgical mesh. Rarely, will I get a chance to sit and chat with lawyers from around the country to exchange ideas and perspectives.

Yesterday I met a fascinating lawyer from South Carolina who specializes in trucking accidents. Until we met, I did not know any lawyers in South Carolina who specialize in truck cases, and now I do. He did not know any Miami PI lawyers either. Coincidentally, one of his daughters is about to go on the Semester at Sea, something I also did while in college, about the same time I was advised that my life's calling would be as a baker. And that's how this works--business cards and handshakes exchanged and ideally one day an opportunity to work together.

Now back to the bakery. It's called Chez Mamou, and Chef Paul Perrier is what one would expect to see at a Hollywood casting call for a French pastry chef. His cheeks are the color of a perfectly baked apple torte, and his eyes sparkle like his namesake's water.

I found this place simply walking by last night on my way to and from the La Posada Hotel, where we are staying. The waiter, whose name I have since learned is Carlos Real, invited us in for desert. Still aching from the red and green chile sauce of The Shed, we passed on his offer but vowed to return for what Carlos promised would be the best breakfast in Santa Fe. He delivered a perfectly cooked spinach omelet with goat cheese that can only be described as spectacularly delicious. The journey continues.

Injured cruise ship passengers face some of the most difficult legal hurdles of all personal injury cases. For example, when someone slips and falls on a cruise ship, most cruise lines require any potential lawsuit be filed within one year of the date of the incident. This often shocks the injured who, by the time they get home, get settled and recover sufficiently, have barely begun to consider filing a claim.

For example, we recently represented an elderly woman who was severely injured during a Western Caribbean cruise. Her accident occurred as she was being transported from her cruise ship's tender to the Island's port. Her injury required emergency medical care and prolonged hospitalization before she was able to fly home. Months had passed before she even considered consulting an attorney. When she did, her lawyer, not familiar with the statute of limitations that applies to these types of cases, began a negotiation with the cruise ship company.

First the company assigned an amicable adjuster who requested documents to verify the injury. Then they asked for copies of passports, medical bills, photographs, x-rays, and insurance reports. It took months for the lawyer to obtain the requested documents, especially the records of her hospital admission on the Island.

Fortunately for the lady and her lawyer, she contacted our cruise ship passenger injury law firm in Miami before the one-year statute of limitations had passed. The lawyer was surprised to learn that had a few more months of negotiation failed to resolve the case--and I have no doubt it would have been fruitless--our client would have lost forever her legal rights to sue the cruise ship.
In addition, even though the accident transpired hundreds of miles from Miami's Federal Court and the injured lady had never been to Miami, the law required that the law suit be filed here. It also mandated that she travel to Miami to testify, be subjected to a physical examination by a doctor of the cruise line's choosing, and attend mediation here.

Unlike virtually every other personal injury claims in Florida--such as a slip and fall, car or truck accident or even medical malpractice--Admiralty cases do not recognize the loss of consortium of the injured passenger's spouse. This can often be considerable, especially when the non-injured spouse relies on his or her spouse to provide services, comfort, and support.

Recently our lawyers filed the very first personal injury case against Carnival Cruise lines for the pain and suffering of Lisa Williams, who was a passenger on the ill-fated Carnival Triumph. The case was filed in Miami's Federal District Court, and Carnival asked that it be dismissed. I am proud to report that Brandon Stein, an excellent and experienced cruise accident lawyer in our office, was successful in defeating Carnival's motion, which now will allow the case to proceed to trial.

If you have experienced an injury while aboard a cruise ship, it is crucial to contact an experienced attorney as soon as possible in order to protect your legal rights. Our law firm is pleased to offer free consultations to any passengers who believe they have a potential cruise ship injury case. To learn more about the limited legal rights of cruise ship passengers please read my recent blog for the Huffington Post, "Why Cruise Lines Aren't Accountable to Their Passengers."

Drunk driving accidents are not really accidents; they are crimes. They kill thousands of innocent people every year. The National Transportation Safety Board has proposed a solution that I believe is right--lower the legal blood alcohol level from .08% to .05% in hopes of saving lives.

Of course, the NTSB makes only recommendations, not laws. It would be up to Florida's Governor Scott and our legislature to listen. And naturally there are critics of the proposal--primarily The American Beverage Institute, the freightenly powerful lobby that represents 8,000 restaurants and bars.

According to Scott Kotler, an experienced DUI defense lawyer and founding member of the Attorney Breakfast Club's Miami Chapter, "The law states an individual cannot drive a vehicle if they are under the influence of an alcoholic beverage or a controlled substance to the extent that their normal faculties are impaired. This can be proven without even knowing what the individual's blood alcohol level is. Florida has passed a limit of .08, at which point there is an inference that those faculties are impaired ...if the new limit passes, then that inference will be at .05. That's about one solid drink (1.5 oz. of alcohol) in a 150-lb. person...so what we are effectively saying is you can't have one drink and drive. If that's what we are saying...then why not make it 000? I personally feel .08 is a good cut-off point..."

Like Mr. Kotler, I believe that lowering the legal levels will likely increase the number of citations for driving under the influence, but it won't eliminate the problem entirely. I have personally represented many victims and families who have lost someone who was killed by a drunk driver. I do not want anyone to experience the pain of receiving a call in the middle of the night from the Highway Patrol. I have written about some of my suggestions on how we can reduce the frequency of alcohol- and drug-related traffic accidents in my blog for the Huffington Post, "Shifting from Prosecution to Prevention for Drunk Drivers."

I also suggest far stronger preventive methods be introduced, such as installing a steering lock on any vehicle, including motorcycles, owned by a convicted drunk driver to render the vehicle inoperable should the device detect any alcohol on the driver's breath. Alternatively, a simple app can be developed that would require a certain degree of cognitive proficiency before a car can be started. Even though I don't drink, I have found that entering my password on my IPAD can sometimes be challenging.

More than 100 countries around the world already have set drinking levels at .05%. Nobody enjoys wine like the Italians, and since 2010 Italy and the other members of the European Union have set their blood alcohol limits at .05%, and as a result have cut DUI-related deaths in half. Florida's legislature should prioritize our public safety over pub and restaurant profits. Florida should be a world leader in making its citizen safe rather than lagging behind places like Slovakia (.0%) and Sweden (.02%).

Did you know that if you own a car, truck, or motorcycle in Florida and decide one day to hand the keys to a friend, employee, or even your own child, you are legally responsible for whatever injury the driver causes--even if you are not in the car at the time? This is called the doctrine of dangerous instrumentality, and it is based on ancient common law in England recognizing that careless drivers of cars and trucks are capable of causing carnage, and often vehicle owners have more adequate financial resources than the actual drivers.

Of course, this law applies to private owners, not rental car companies or lessors of vehicles. Florida has an entirely different set of laws that allow those corporate giants essentially to escape responsibility when a driver of one of their vehicles injures or kills somebody. I recently wrote about this unfair law in my blog for the Huffington Post: "Why Florida's Governor Wants Tourists to Rent Cars."

The tragic deaths of Lickson Gabriel and his passenger Luis Valentin illustrate how Florida's dangerous instrumentality doctrine should work. The accident happened in the early hours of the morning when Lickson, driving his father's car, ran a red light and hit a semi-tractor trailer truck. Wanda Roman, the mother of Luis Valentin, sued the Personal Representative of Lickson Gabriel's Estate as well as Lickson's father, Lesore Gabriel, under the dangerous instrumentality doctrine, as the car's owner.

She settled her claim against Lesore for $10,000 and a document known as a release. That specific release discharged Lesore Gabriel of any responsibility, along with his insurance company, and any agents or employees of Mr. Gabriel. When Ms. Romon attempted to continue her claim against the Lickson Estate, the Estate raised the defense of a release, claiming that the son was an agent of the father and therefore released by the same release. The trial court agreed and dismissed the case.

Mrs. Roman successfully appealed to the 5th Circuit Court of Appeal in Orange County, and the decision distinguished Florida's dangerous instrumentality doctrine regarding a vehicle owner's legal responsibility as separate from that of the agency. Principal and agent relationships are most commonly found in employment and commercial relationships and are distinct from those of a father lending his son a car. In other words, simply because the driver of the car was the owner's son, he was not necessarily the father's agent.

In Florida to prove an actual agency relationship there must be:

1. Acknowledgment from the principal that the agent is acting g on his behalf;
2. Acceptance by the agent to undertake the act;
3. Control of the principal over the agent's actions.

The appellate court reversed the trial court's dismissal, ordering that the Estate will have to prove that the agency relationship exists to take advantage of the release that was signed. You can read the opinion in Wanda I. Roman v. Sean Bogle as the Personal Representative of the Estate of Lickson Gabriel, Deceased.

I believe this decision is significant because it serves to remind all Florida car, truck, and motorcycle owners to be very careful whenever they let others drive their vehicles--because under the dangerous instrumentality doctrine, all vehicle owners are responsible for injury or death caused by the carelessness of the driver.

Florida's business owners, are also exposed to legal liability: If an employee or intern acting on behalf of their company, causes an injury or death, they have separate legal responsibility under the application of the agency principle.

Every year 500,000 tractor trailers and semis are involved in trucking accidents across the United States resulting in approximately 5,000 fatalities. Investigating a tractor trailer trucking accident is very different from a typical Miami car crash claim. Therefore, it is very important that your attorney is experienced in litigating truck accidents. I invite you to contact our law firm for a free consultation regarding your potential claim.

Understanding and winning slip and fall cases for the injured has become more difficult with the recent changes in Florida law. Let me begin by clarifying a common misconception that I have heard for more than twenty years representing people who have fallen in a South Florida grocery store, shopping mall, hotel and even a hospital parking lot. Our clients frequently believe that simply because they slipped or tripped, they are entitled to file a claim and obtain money from a business owner. That is not accurate. Though it seems obvious, let me point out that to file any kind of personal injury claim in Florida--no matter if it's for a car accident, medical malpractice, or a slip and fall--there must be an injury.

Being embarrassed or insulted by the store's owners or employees following an incident is simply not enough to warrant making a claim. For instance, I was recently consulted by a woman who tripped over a display rack at Neiman Marcus in Bal Harbor. Yes, she tripped, but she was not injured and never actually fell. She had not even damaged her shoes, but she wanted to sue the store. Her inquiry is common. There must be some form of injury before any further legal evaluation is merited.

Specifically in slip and fall cases, the claimant or plaintiff must prove three elements to have a viable case. This is known as the plaintiff's "burden of proof." In contrast, the defendant store owner has no burden to prove anything. The first element a claimant must prove is the existence of a legal duty or obligation on behalf of the defendant, who could be the business owner, manager, or both. There are certain situations when business owners do not have to provide protection to certain individuals--such as trespassers. The two principal obligations a business owner has are to take ordinary and reasonable care of the property to keep it safe and to warn of a dangerous condition known to the defendant that a visitor or customer could not know. The typical situation we encounter is a slippery floor caused by some kind of liquid, most commonly water. Under the Florida law, this is called a transitory foreign substance, and it is governed by Florida Statute §768.0755.

For example, business owners have a far better chance to know that their stores' floors get exceptionally slippery when wet. Accordingly, when it rains, they have a responsibility to make sure visitors are warned of the dangerous condition.

In a slip and fall case, it is the plaintiff's burden of proof or responsibility to prove that the business owner knew or should have known of the dangerous condition. The point when a store owner actually knows of the dangerous condition is called "actual notice"; when a store owner should have known of the condition is called "constructive notice."

Secondly, one must prove that there is a certain "standard of protection" for the public in general and the injured person specifically. For example, it is not the industry standard right now for gyms or restaurants to maintain automatic external defibrillators on their property. So, if a Starbucks patron goes into sudden cardiac arrest and dies, his Estate would have to prove that Starbucks and other fast food establishments are obligated to maintain AEDs. Currently, that is not the standard in Florida, and that case would probably be dismissed.

Thirdly, plaintiffs have to prove that the alleged failure of the business owner or condominium association actually caused an injury. This is often the most difficult element to establish, especially when injuries are hard to prove. Back injuries are notoriously difficult to prove in the absence of an acute traumatic fracture. The defense lawyers and the medical experts they hire will evaluate any potential back injury claimant and typically argue that the injuries are preexisting and degenerative rather than caused by the fall. Most people I have represented have at some time or another complained of or been treated for back pain before the date of the injury. It may have been so insignificant or long ago that they have forgotten. But one of the first things defendants do when investigating a slip and fall is obtain all of the claimants' medical records. Inevitably, especially with older clients, there will be some notation of a previous back complaint or treatment. Even more frequently they have suffered an accident or injury where they received extensive treatment for a back or neck injury.

When faced with a complex preexisting medical history, the plaintiff's ability to prove that the fall actually "caused" an injury can be often nearly nonexistent. Recently Florida's Third District Court of Appeal upheld the dismissal of a slip and fall case that occurred at Miami International Airport. Carrie Kenz claimed she was permanently injured after slipping on some water on the floor of the airport. She sued both Miami-Dade County, which runs Miami International, and UGL Service Company that provides the airport's maintenance. The case was dismissed according to the record because Ms. Kenz was unable to prove that either defendant had any notice or knowledge of the water on the floor, nor could she show that they were unreasonable in how they maintained the premises. You can read the Court's opinion in Carrie Kenz v. Miami-Dade County and UGL Service Company here.

I was saddened to learn of the tragic car accident that killed a University of Miami student yesterday. Dino Ghilotti was a passenger in a car just a few blocks from campus. The fatal accident happened at 4:37 in the morning at the intersection of Bird Road and San Amaro Drive, just a block from the Coral Gables campus. Para información en español.

According to the Florida Department of Transportation, intersection accidents account for nearly 40% of traffic crashes every day. It would seem that those accidents are random and unpredictable. While the facts are unknown as to how Mr. Ghilotti was killed, intersection accidents are far more predictable than one might imagine.

The University of Central Florida's Department of Civil and Environmental Engineering performed an analysis of Florida's intersections to see if there are patterns or similarities that make certain intersections more dangerous than others. To perform this analysis, the department examined nearly 30,000 accidents at over 1500 intersections, in six Florida counties, over three years.

They then divided the different intersections into three separate categories:

1. Types of intersections classified by the number of lanes, the angles, traffic signals, and speed limits.

2. Volume of traffic passing through the intersections, calibrated to the Miami Dade and Orange County Annual Average Daily Traffic (AADT) figure.

3. Kinds of crashes that occur at each intersection, and how the time of the accident, crash angles, and points of impact, correlate with fatality.

The study found that there are 45 distinct common types of intersections in Florida and that a mathematical formula that can predict with statistical reliability which specific Florida intersections are more likely to be the sites of fatalities. Read the Final Report.

One would hope that such information was easy to obtain, but the researchers found that the Cities, Counties, and the State of Florida do not share a common data bank of important accident information, such as road speed, lanes, and angles of impact, making the research far more complicated than necessary.

Ultimately by studying the data from 413 intersections in Miami-Dade County, the UCF engineers found that rear-end collisions at intersections are the most common with head-on being the least common. Most accidents at intersections happen in broad daylight on dry streets as opposed to at night or when streets are slick. January has the most intersection accidents in Miami Dade, and December the least. Fridays are the most dangerous days of the week, and Mondays are least dangerous.

The good news is that the FDOT has implemented several initiatives that have lowered the number of intersection car accidents resulting in serious injuries and deaths by the following measures:

• improving traffic signal visibility

• verifying that the sequential timing of traffic lights is correct

• installing additional pedestrian countdown signals

• initiating additional road safety audits

• and providing more driver pedestrian education

I have investigated traffic accidents involving pedestrians, cars, motorcycles, trucks, bicycles across the State of Florida for over twenty years. I suggest that the FDOT share the data about which intersections across Florida are the most dangerous with the drivers who are on the road by identifying those intersections with warning signs. A standard warning sign should be placed at the approach to each intersection, simply advising drivers to pay extra attention. In addition if particular intersections experience more accidents than others, they should be immediately redesigned. Let the FDOT identify, for example, the 10 most dangerous intersections in Florida, install warnings, and then show us how they are making our roads safer.

I am extremely disappointed by how the FDOT is neglecting to protect us as I expressed my in the Huffington Post in "FDOT Must Take a Hands-on Approach to Safety." For example, the FDOT's website depicts a Dashboard proclaiming their success in minimizing fatalities in car, bicycle, and motorcycle accidents by comparing their goals to the actual data. The goal for reducing bicycle accidents, for example, was to decrease them by 5%. In reality they are up .7%. But what is worse is the FDOT's Performance Data itself is obsolete and has not been updated in three years. It is no wonder that Florida's roads are as dangerous as they are when our FDOT cannot maintain and update its own website, much less regulate our fatal intersections.

As the summer approaches, parents across the country are deciding where to put their children. Many are considering summer camps and youth programs. Those can be enjoyable alternatives, especially for children who have spent the school year in predictable "desk jobs" with limited physical activity. But for some parents and students, the drastic increase in strenuous activity coupled with the summertime heat can pose serious health risks.

Almost everyone has heard the recent concerns about head trauma, concussions, and mild traumatic brain injuries found in not only NFL, but also college and high school football players. But as a South Florida children's injury attorney, I was surprised to learn that Sudden Cardiac Death (SCD) is the number-one killer of young athletes in America.

SCD is such a common killer that a student dies from it every three days in the United States alone. Sadly, many of those deaths are preventable as they are triggered by undiagnosed and untreated pre-existing medical conditions. The good news is that SCD can be stopped.

STOPPING SUDDEN CARDIAC DEATHS

Most schools require students to undergo some type of medical clearance before playing on school-sanctioned teams. Unfortunately, summer camps usually have no such requirement. Often children entering a summer camp or youth program may be doing so without ever having received the athletic screening in school.

If you are considering putting your child in a summer camp that includes strenuous physical activity--like dodge ball, running, soccer, tug of war, kickball, or basketball, especially if played outside--we recommend that you have your child first undergo a physical examination by a competent pediatrician.

The typical examination would include listening to the heart, checking blood pressure, and reviewing the family history. Moreover, many experts in pediatric medicine are now recommending that an electrocardiogram, or EKG, also be performed to identify any hidden heart issues such as hypertrophic cardiomyopathy, a thickening of the heart muscle.

Parents in Miami who are concerned about the cost of an EKG for their child can obtain one for free for current middle school and high school students, thanks to Miami Children's Hospital. I am asking Dr. Anthony Rossi, the Director of the Cardiac Intensive Care Unit at MCH, to please extend this generous gift to every child who is entering summer camp or a youth program but cannot afford or does not have the medical insurance to obtain this life-saving examination. For more information call The Heart Program at Miami Children's Hospital (35) 662-8301.

AUTOMATIC EXTERNAL DEFIBRILLATORS

I also recommend that you confirm that your children's camp has an available Automatic External Defibrillator AED and at least several adults who are trained to use it. AEDs can save a child's life. I recently wrote about the horrifying incident involving a Florida high school athlete who collapsed during a sanctioned soccer game. While the school had both an AED and a trained school nurse present at the game, neither was utilized while the boy laid breathless waiting for Fire Rescue to arrive. The boy's family sued the school and school board and the case was dismissed by both the trial court and appellate court finding no legal liability. You can read more about this in my recent blog for the Huffington Post, "Florida's Shocking Defibrillator Law."

Legislation should be enacted that would mandate EKG and physical examinations for all of Florida's public school students. By deploying mobile EKG labs to each potential each school thousands of young lives will be saved.

Nobody likes to lose. The feeling trial lawyers have when they lose a significant case must be like what generals feel when they lose a war. Loss is a part of life. And in the world of Florida personal injury trials, both parties can walk hopefully into a courthouse, but only one will leave with a favorable verdict.

Lawyers who defend doctors, hospitals, and insurance companies for malpractice claims get paid by the hour, regardless of the result. Certainly, the best defense lawyers should do everything they ethically can to ensure their clients escape liability--or paying for whatever they are being accused of. And when that happens in one of my cases I respect and congratulate my adversary.

In professional boxing, when and if both fighters make it to the final rounds still standing, the judges score the fight and declare a winner. Personal injury trials are much the same. If both parties can make it to the end of a long trial, the jury votes and decides the winner. Boxers that are unhappy with the decision can file a protest, usually to no avail. Litigants unhappy with a verdict or a trial judge's decision can appeal.

Most Florida medical malpractice defense lawyers have longstanding relationships with their clients. It is very common for hospitals to retain a particular firm to handle all of their claims, ranging from slip and falls in the waiting room to birth trauma. Those lawyers get to know intimately how those hospitals function and get to know the people who run them very well.

For the lawyers who represent injured patients and their families, it is a much different relationship. Because of their ability to work with defense clients on a regular basis, defense lawyers can help train their clients in what to do and say and how to keep records to avoid being sued in future cases. By contrast, rarely if ever do we attorneys for the plaintiffs know our clients before the event. And because of the nature of our work, it is even more unusual to represent a client more than once.

DO YOU HAVE A MEDICAL MALPRACTICE CASE?

Case selection for a Miami plaintiff personal injury lawyer who focuses on medical malpractice is perhaps the most difficult aspect of any case. Florida's legislature has made suing a doctor or hospital a complex and expensive process. Virtually every legislative session, Florida's medical malpractice laws change-- sometimes in subtle and little-known ways, requiring lawyers to study the statutes constantly, the way some brokers watch the market. Every shift in the law makes it more and more difficult for injured patients to hold medical providers accountable for their actions.

Lawyers who defend doctors and hospitals usually bill by the minute for the services they provide. In the computation of their time, defense clients pay for all the costs of defending the case up front. This includes retaining experts, travel, transcripts and jury consultants. In contrast, those of us who represent injured patients almost always take the cases on a contingency basis; in other words, we get paid only when we win and collect.

DOES THE DEFENDANT DOCTOR HAVE MEDICAL MALPRACTICE INSURANCE?

Winning is important, but collecting is even more important. Therefore, one of the first issues we have to address when screening potential malpractice cases is whether or not there is insurance coverage since Florida permits its doctors to practice without requiring that they maintain medical malpractice insurance. That means no matter how horrifying the facts of a given case may be, without the means to collect for the injury, many potential cases are simply not financially feasible for plaintiffs' lawyers to accept.

I have always found it sad that Florida law requires a doctor to have insurance to drive him- or herself to the hospital to perform a surgery, but allows the same doctor to operate on people without the same requirement.

IS THERE ENOUGH TIME LEFT TO SUE?

Assuming there is coverage to pay from, the next concern is whether or not there is time left to file the case. Florida Statutes Section 95.11 gives a very short two-year statute of limitations to sue a doctor or hospital for medical malpractice, in contrast to four years for virtually every other type of personal injury claim. This is perhaps the greatest injustice perpetrated against the injured patients by Florida law. Even for the most experienced lawyers, medical malpractice cases are the most complex, difficult, expensive, and time- consuming to understand and prove. And in many cases, the injured patients fail to realize that they are the victims of medical negligence for months or years after a procedure, diagnosis, or surgery goes wrong.

Despite the complexity of those injuries, Florida gives doctors a 50%-better chance of escaping liability based on the time limits to file a claim if they injure a patient on the operating table as opposed to in the parking lot of the hospital. Often we reject potentially viable claims simply because the two-year time limit has expired.

IS THERE A LEGAL SURVIVOR?

Lastly, is there a survivor? Florida's current medical malpractice wrongful death law essentially gives doctors and hospitals a license to kill unmarried patients or patients without children under the age of 25. The law requires that a patient killed by a health care provider must be survived by a living spouse or a child under the age of 25. That law discriminates against same-sex partners, the elderly, and young single patients.

My clients are astounded when I am forced to explain why I cannot undertake the representation of their widowed 72-year-old mother who developed bedsores that lead to sepsis or the unmarried live-in boyfriend who died from the failure to diagnose a stroke at an urgent care center.

I did select a case on behalf of the family of a nurse who committed suicide after I came to believe he was improperly discharged from the care of the very same South Florida hospital where he had worked for twenty years. The trial judge dismissed the suicide malpractice case without ever letting me present the facts to a jury. I appealed, but Florida's Third District Court of Appeal affirmed the trial court's dismissal without even issuing an opinion to explain their ruling. Our motion for rehearing is currently pending. If the appellate court denies that motion, the war will be lost.

This ruling affects the legal rights not only of my clients but also of every family who loses a loved one in Florida because of the negligence of a doctor or hospital in failing to diagnose and treat a suicidal patient. And, as in war, the generals rarely feel the results as much as the countless innocent victims that a bad decision can affect.

Lazaro Fernandez was crushed to death at South Beach's Gansevoort South Hotel while helping a fellow employee replace the wheels on a large metal gate. His family filed a wrongful death case in Miami-Dade County against the Hotel and its owners, Sandy Lane Residential and Sandy Lane Master Association, as well as the manufacturer, installer, and subcontractor of the gate. Lea el blog en español.

The Gansevoort is luxury South Beach hotel and condominium located at 2377 Collins Avenue. It has 334 hotel rooms and 355 condo units. At the time of the accident, the hotel was owned by Sandy Lane and managed by the New York-based Gansevoort Hotel Group. Both Gansevoort and Sandy Lane moved to dismiss the case, claiming that as the employers of Mr. Fernandez, they are immune from liability under "Florida's Workers' Compensation Law."

Florida law makes it almost impossible for employees to sue a boss if and when they are accidentally hurt at work. Statute §440.11 merely allows injured or killed workers to receive limited "compensation." There are some exceptions to this rule, but they are virtually impossible to prove--such as . . .

• when the evidence suggests that the employer intentionally caused the accident to injure or kill his or her employee,

• engaged in conduct that the employer knew--based upon prior similar accidents or on explicit warnings specifically identifying a known danger--was virtually certain to result in the employee's injury or death and

• the employee did not know of the danger because the employer hid or lied to the employee about the danger so as to prevent the employee from using his own judgment on whether to perform the work.

The need for the injured Florida worker to be unaware of the danger is critical to these cases. According to Salvatore J. Sicuso, Esquire, a Florida Board Certified Workers' Compensation attorney and member of the Attorney Breakfast Club in Miami, such a standard is criminal. "Requiring an employee to be unaware of the danger to sue their employer for all of his or her pain and suffering is a terrible change in the Workers' Compensation law. Many employees are aware of broken or defective equipment they are forced to use in the workplace. The employee is left with a Hobson 's choice; perform the work knowing they are practically sure to get injured or killed or refuse and get fired for not performing the work."

For an employer to take advantage of the nearly bullet-proof protection that Florida law affords from being sued by an injured employee, the person actually has to be the employer. In the Fernandez case, the trial court dismissed the employee's claim against all three defendants without properly determining if Mr. Fernandez was actually employed by the hotel or the property owners at the time of his death.

The injured employee's estate appealed the trial court's dismissal to Florida's Third District Court of Appeal. On May 3, 2013, more than four years after the fatal accident, the case was reversed back to the trial court to obtain evidence as to the identity of the actual employer. Read the Court's opinion here.

LATEST CHANGE IN FLORIDA'S WORKER'S COMPENSATION LAW

Florida's employers enjoy enormous legal power over the rights of those injured while on the clock. Moreover, thanks to Florida's Legislature and Governor Rick Scott's hard work this session in passing SB 662, an addition to the law will change the current regulations governing the reimbursement of the cost of prescription drugs for hurt employees.

The new provision applies a cap on what doctors can charge for relabeled and repackaged drugs prescribed to workers' compensation patients. The proclaimed intent of the law is to make workers' compensation coverage more affordable for Florida's employers who were purported to have blamed the rising cost of coverage on the escalating pharmaceutical bills of injured employees. In reality the law serves to protect Florida's doctors and drug companies but still allows them to charge patients far higher prices than traditional retail pharmacy can.

Anais Fournier was only 14 years old when she suffered a fatal cardiac arrest after drinking two Monster energy drinks. Her parents are suing Monster Energy for their child's wrongful death. So far the Food and Drug Administration reports five deaths and at least one heart attack associated with the energy drinks. Monster denied causing the girl's death and claims Anais died from natural causes. Para información en español.

Yesterday, City of San Francisco Attorney Dennis Herrera, filed lawsuit on behalf of the City against Monster in an attempt to prevent it from marketing their products to children. I anticipate that these cases are just the beginning of many children's personal injury claims against companies like Monster, Red Bull and 5-Hour Energy Shots.

Many people feel that drinking a Monster or Red Bull is less dangerous than drinking an expresso or a cup of coffee. Sadly, this ignores the fact that people sip coffee and children tend to guzzle energy drinks.

There now appears to be overwhelming evidence that caffeinated energy drinks are associate with health problems such as cardiac events. Recently, Pediatrics in Review published an opinon by Dr. Kwabena Blankson, a specialist in adolescent medicine at the Naval Medical Center in Virginia warning that the caffeine levels in energy drinks when mixed with artificial ingredients is a dangerous product for teens to consume. Instead he suggests that parents recommend teens to entirely stop consuming these drinks and find better and more natural ways to increase energy like exercise, nutrition, and more sleep.

RED BULL AND VODKA

Mixing Red Bull and Vodka, also known as a Vod-Bomb or Russian Bull is an alcoholic drink made from Red Bull and varying amounts of Vodka. It is one of the most popular drinks for teens in bars, nightclubs and parties around the world. The amount of Red Bull to Vodka varies but the Red Bull is used to mask both the taste and influence of the alcohol.

Sugar and caffeine mute the depressant effects of alcohol. Accordingly, people who mix alcohol with an energy drink are more likely to binge drink, more susceptible to sexual assault and to driving while intoxicated.

As a member of the Attorney Breakfast Club, I hope that Florida's Legislature will immediately take action to illegalize the sale of energy drinks to people under 18 years of age. And, while the FDA slowly investigates the increasing number of reported illness, injury and death associated with energy drinks, Florida's Department of Health needs to implement a program to warn both parents and children about the risk.

It's about time. Thanks to Florida's slow acting Legislature we will soon finally become the 40th state to ban texting and emailing while driving. In light of the number of deadly car accidents in Florida, I don't understand what took so long. SB 52, also known as the bill that "Bans Texting While Driving," will subject Florida drivers to a non-moving violation if found guilty of texting and driving for a first time offense. Those who are caught texting and driving a second time within a five-year period will be assessed a fine and points.

Assuming Governor Scott signs SB 52; it goes into effect on October 1, 2013. As a Broward car crash attorney I find it ridiculous and dangerous to delay this law. Doing so only permits Florida's drivers to text and drive all summer long.

This bill was originally filed in November 2012, but it has taken nearly a year and five amendments to plow through Florida's lumbering legislative process. The bill would have been unanimously passed sooner were it not for its inexplicable rejection by Republican Senator Joe Negron. If you feel like asking Senator Negron why he opposed this lifesaving measure, I suggest you email him.

When our South Florida personal injury lawyers investigate a traffic accident, we always try to obtain the cell phone billing records of the defendant driver to verify if he or she was using their cell phone or texting before the impact.

Politics almost derailed SB 52 at the last minute when an amendment was included restricting the admissibility of a person's billing records to determine if a violation of the no texting law was committed in all Florida traffic accidents, except where the crash resulted in death or personal injury.

I have personally investigated thousands of traffic accidents over the last 22 years involving bicycles, trucks, pedestrians and rental car crashes. There is no reason why this law should have to wait until October to be in force - it should be effective immediately.

A recent study showed that most drivers who admit to texting believe that they only do it at stop signs and red lights or only read texts while driving. In actuality, these same drivers were found to be texting at least 10% while actually driving outside of their own lane.

Parents have an obligation to refrain from texting, especially with their children in the car. Children who grow up watching their parents' texting and driving are more likely to believe that this is acceptable behavior behind the wheel.

According to the Mayo Clinic, texting while driving is more than 20 times more dangerous than driving alone. Especially for teens who are less experienced drivers and less likely to be able to appreciate and react to an unexpected hazard. Nearly 82% of Americans between 16-17 years of age own cell phones. Worse, most admit to talking and texting while driving. Unfortunately, most drivers do not understand the incredible risks involved in texting and driving.

There are a number of ways to help prevent yourself or your children from texting while driving. New apps like Safe Texting AR reads both text messages and emails out loud hands free and in real time. AT&T understands the importance of ending texting and driving and has an elegant solution that sends a customized message to friends that lets them know you are behind the wheel of a car moving at least 25 mph and cannot reply to texts at this time.

ATT&T also has a mobile app that will provide employers of large and small businesses to monitor their employees on the road by providing real time management and blocking of cell phone, emailing and texting use. This is especially crucial for businesses that rely on their employees to make deliveries and drive school buses.

We hope that Governor Scott signs this bill and makes Florida a safer place for everyone. I am sure if you look now at the last text you sent or received on your cell phone, you would agree that that text would not be worth dying for.

Thousands of passengers aboard Carnival's Triumph cruise ship were stranded without power due to an engine room fire caused by a fuel leak in the middle of the Gulf of Mexico last February. Our Miami lawyers who sue cruise ship companies filed the first individual passenger injury claim against the Triumph.

Our client, a Texas woman, was amongst 4,229 passengers and crew who lived in unsanitary conditions and without working toilets, air conditioning, fresh water or elevators as the 900 foot long disabled ship was slowly tugged to Mobile, Alabama. Ironically, the rescue mission was further delayed when one of the towlines snapped.

Since being docked in Mobile, the Triumph continues to be plagued by problems. Last month the Triumph dislodged from its moorings by a windstorm. Then, in a separate and subsequent incident, two shipyard workers fell into Mobile Bay. One worker was rescued immediately; the other's body was not found for more than a week.

Now more than two months since the initial disaster, the Triumph is still undergoing repairs with many workers living on board. Last week an explosion erupted on a nearby fuel barge critically injuring three people and forcing the evacuation of all of the Triumph's crewmembers.

SUING A CRUISE LINE

Triumph passenger lawsuits against Carnival filed in Federal Court in Miami are not going smoothly either. Carnival is seeking the dismissal of all Triumph cases including a potential class action attempting to consolidate the claims of over 3,000 passengers. Carnival has argued that the passengers' tickets - the Contract of Carriage - prohibit the filing of a class action lawsuit. In response the potential class action is asserting that Carnival is negligent for allowing the Triumph to sail in light of its past mechanical issues.

Additionally, Carnival is trying to get rid of our client's individual claim. Williams, L - Motion to Dismiss Pltfs Complaint for Damages w Memo-10996.pdf Carnival appears to prefer muscling its way through the litigation process rather than attempting to resolve the claims of those who were impacted by poor maintenance.

CARNIVAL'S PLAN

Cruise ships are like floating cities and therefore must have the ability to provide basic comfort and support for passengers when faced with an unexpected power outage. Carnival has recently unveiled upgraded emergency power capabilities along with improved operating procedures they claim are intended to prevent the kind of disaster that left the Triumph dead in the water. To oversee these changes, Carnival formed a five person safety and reliability board that is allegedly comprised of maritime experts.

Dragging a distressed cruise ship slowly across the Gulf of Mexico with thousands of people stewing in raw sewage is unforgivable. I hope that Carnival is ultimately held accountable for not just ruining their passengers' vacations; but for prioritizing corporate profits over passenger safety.

The latest legal news is good for thousands of Americans who are suffering from the effects of the recalled hip implants made by Stryker. On May 30, 2013 the United States Judicial Panel on Multidistrict Litigation (JPML) is scheduled to hear oral arguments in Louisville, Kentucky on the formation and consolidation of all federally filed lawsuits against Stryker for its Rejuvenate and ABG II hip implants. For Information En Español.

Victims of the recalled hips have been diagnosed with high levels of metal poisoning, tissue and bone damage, pain, swelling and pseudotumors. Stryker recalled its hip implants because the high risk for metal corrosion and adverse tissue reactions.

How Does the JPML Process Work?

Each year the JPML holds hearings across the country to coordinate and consolidate certain kinds of civil cases that are filed in different federal courts, but involve the same or common facts, into place for pretrial proceedings and discovery. This is especially important for recalled hip victims who may be able to pool their resources to create a unified offensive against a giant medical device manufacturer like Stryker or De Puy.

The JPML Panel consists of seven sitting federal judges who must be from different federal judicial circuits. Each panel member judge is appointed by the Chief Justice of the United States. In addition to the hearing set in Kentucky this May, additional hearings will be held on: July 25, 2013 in Portland, Maine; September 26, 2013 in Philadelphia, Pennsylvania; and December 5, 2013 in Las Vegas, Nevada.

The JPML hears many different types of cases in addition to defective product and drug claims. The first MDL case involved an allegation of price-fixing against General Electric.Since its inception in 1968, the JPML has centralized nearly 400,000 cases and millions of individual claims. While product liability cases are the largest share of MDL litigation today, antitrust and sales practices are also very common.

Stryker Hip Cases in New Jersey State Court

Our Miami lawyers for recalled hip implants filed one of the very first cases in the country against Stryker on behalf of a South Florida woman. The case is pending in Bergen County, New Jersey. Judge Martinotti is overseeing the New Jersey state court hip cases and holds monthly case management conferences to ensure the litigation moves quickly and efficiently.

Recently I attended a hearing in New Jersey on a Stryker lawsuit and found that Judge Martinotti was fully prepared to undertake the anticipated cases of hundreds, if not thousands, of injured victims. So far there are nearly 150 lawsuits pending against Stryker in New Jersey state court alone. Read our hip implant complaint.

However, there are a considerable number of Styrker cases filed in other jurisdictions across the country, including the District of Minnesota. Lawyers will be arguing at the anticipated JPML hearing to try to direct the cases to a plaintiff friendly jurisdiction.

Currently, there are motions pending to send the consolidated cases to Minnesota or to Illinois. For some reason, the District of Minnesota is the busiest district for MDLs with 9 active cases currently pending, including Baycol, Levaquin and Medtronic-Fidelis.

Placing hip implant cases in an MDL is generally more efficient and less expensive for all parties. For example, a defendant in a defective drug case would be subjected to only one deposition rather than having their testimony taken by 100's of lawyers in individual cases. This is one reason why the majority of large corporations favor the MDL process.

Free Legal Consultation for Hip Claims

Our Miami hip injury lawyers are leaders in the fight against Stryker, De Puy and other defective product manufacturers. We are dedicated to the belief that patient safety should always come before corporate profits. If you are a victim of a recalled hip implant we urge you to undergo the appropriate medical evaluation and contact our office for a free consultation. Even if you are experiencing no symptoms or pain, you may be entitled to compensation. Contact Aronfeld Trial Lawyers today for a no obligation hip implant lawsuit evaluation.

As the weather warms up more and more people are taking their bicycles out of storage for the summer. As a bicycle accident lawyer in Miami, I recommend the following; before riding a bike that has been unused for more than a few months, have it thoroughly inspected, cleaned and maintained by a professional bicycle mechanic.

TUNE UP TIME

Improperly maintained bicycles or a bicycle with a defective component can cause a serious bike accident. Over the years we have represented a number of injured cyclists in claims against manufacturers, distributors and even the local bicycle shop.

This week, Cervelo, a Canadian frame maker and sponsor of the several top ranked professional cyclists, announced the recall of Aura Pro aero handlebars. The Aura pro is a custom bicycle handlebar that attaches to the 2013 Cervelo P-Series bicycle. It comes in black, gray or red with the brand name "Cervelo" imprinted on the frame. These bicycles are designed for maximum speed by experienced cyclists in time trials and triathlons.

According to the Government of Canada's Official Safety Recall Page, the bars were made in Hong Kong by 3T and distributed internationally through Cervelo's Toronto offices. To date, 623 bicycles have been recalled in the United States. If you own a Cervelo and are not sure if your bars have been recalled, I urge you to immediately stop riding your bicycle and contact 3T at 1-800-223-3207.

Since I am a Miami attorney who sues companies for products that hurt people, I am required to constantly research the CPSA's recall lawsuits. I found out about the Cervelo 3T recall on the United States Consumer Product Safety Commission website. But I was unable to find any reference to the recall on Cervelo's homepage. It is understandable that a company in the business of selling bicycles may not want to alert potential consumers to a potentially dangerous defect. I am disappointed in Cervelo as it should be compelled to put this kind of information prominently on its websites homepage to alert and protect consumers.

STRAP IT ON

Most people understand the importance of wearing a helmet when riding a bicycle. Studies show that bicycle helmets can reduce the risk of a head injury by as much as 85% during a fall or collision. Bicycle helmets are specifically designed to absorb the impact rather than your brain. The problem we frequently encounter is that people have sustained serious head injuries by wearing the wrong kind of helmet. Not all helmets are the same and each type of helmet is designed to protect heads from dangers that are particular to that sport. For instance, a skateboard helmet does not meet the same federal safety standards as a bicycle helmet.

We recommend that cyclist only use a helmet that meets the CPSC's helmet standards. Helmets that are marketed for mountain climbing, go karting, horseback riding, lacrosse and skiing do not have to meet the same standards as a CPSC approved bicycle helmet.

To protect your children from the substantial risks of injury and death present in a bicycle accident it is very important when selecting a helmet to not rely solely on a manufacturer's name especially when sold in a toy store. Rather, we recommend carefully inspecting the helmets inside lining and verify that it is in compliance with the CPSC and ASTM formerly known as the American Society for Testing Materials.

Helmet fit is as important as selecting the correct helmet. A helmet should be both comfortable and snug. Lose helmets can fall off during a crash or shift to the side actually causing more harm than protection. Consult with a professional at your local bike shop to ascertain if your helmet is properly fitted. For more information En Español.

It has been over two decades since I took Florida's Oath of Attorney, the mandatory rite of passage that every lawyer in Florida is required to undertake in order to go from private citizen to lawyer and Officer of the Court. The words are sacred and rather than spoken just once, should be read and reread frequently by every Florida lawyer.

Last week, I was given the gift of administering the Oath to Domenick Lazzara, my former law clerk and now associate. The ceremony was performed at Miami's Camillus House - a homeless shelter. The Oath was given to Domenick in front of an audience consisting of members of Miami's indigent community. Domenick is a towering young man resembling Michelangelo's David. His marble exterior encases the warmest and kindest heart of any man that I have ever known.

Anyone who knows me knows that I am a very emotional person. I have written many times about how my heart has guided me in the practice of law; often being both a blessing and curse for my clients, staff and family.

Domenick asking me to give him the Oath felt like a combination of a father being asked to walk his daughter down the aisle, a teacher handing a diploma to his favorite student at graduation, or reading the name of an Academy Award winner who happens to be your brother.

I knew it would be tough to get through this because I remember choking down the words when Judge Phillip HUbbart read them to me on a hot October morning at Florida's Third District Court of Appeal, 22 years ago. I had clerked for Judge Hubbart and his law clerk Trudy Lumpkin Mench during the summer after my first year in law school. He was also the only judge I knew.

The day was a special day for me.

At that time, my grandmother Rose, near the end of her life, living in a nursing home, wanted to attend my swearing in. But I did not have the time to drive to North Miami and load her wheelchair in my car and drive her back and get to work on time. I was clerking for a lawyer who gave me just one hour to get it done and demanded that I be back at his office by noon.

When I arrived at the Courthouse with my parents and the parking lot was empty as it was often on days when there were no scheduled oral arguments. There was one car there. An old and unrecognizable sedan. As we walked passed, I saw a wheel chair sticking out of the backseat. I commented to my father that I felt guilty that my grandmother was not there and that perhaps I made a mistake not picking her up. As we climbed the steps, I heard what I imagined was her voice. It was not then and is still not uncommon now years after she has passed--for me to hear my Grandmother's voice. I did not turn around, probably because I was too excited by the prospect of finally being a lawyer.

Another deeper voice called my name out. It was a man's voice who used my name in a way that only my Grandmother would know: "Spenny!" I stopped in my tracks. My father did too. And in utter disbelief, I saw my grandmother emerge from that old sedan with the assistance of, what I later learned, was the husband of one of her nurses at the home. He assisted her up the stairs and rolled her into the Third District Court. It meant that much to my grandmother to see her grandson, me, be sworn in that she would not have missed it for anything.

My grandfather Samuel Aronfeld was a lawyer and his portrait hangs in my law firm's lobby. Both of my grandmother's sons, my father and uncle, attended law school. Neither were ever lawyers. "It skipped a generation," my grandmother said just before Judge Hubbard began and I began reciting the Oath.

I thought these memories were long forgotten. But on a beautiful April evening last week, they returned in high-definition. I looked into the warm eyes of Domenick, his right hand raised, towering above me, we began the sing song of reading the Oath. The room was full of those that we proudly serve at Lawyers to the Rescue, I stumbled though the words. I don't fight my tears anymore, mostly because the tears always win. At the end, Domenick is now a lawyer who I trust will inspire many, just like he has me.

It is easy enough for a seasoned lawyer to encourage and motivate young lawyers to be successful. When I was a young lawyer, I was galvanized with admiration and vigor by my mentor Gerry Spence. Gerry taught me to feel and dream differently as both a person and attorney. It is however a considerably rarer phenomenon when the elder lawyer is inspired by a young lawyer. For the last three years I have been fortunate to watch Domenick's slow metamorphosis from law student to lawyer. I am grateful to him for giving me a front row seat to his journey to attempt to affect an actual positive change in our world and in the lives of our clients.

Continue reading "The Oath of Admission to the Florida Bar" »