Summer is right around the corner, and as already seen in South Florida's recent weather the rainy season is upon us. According to the Weather Channel, the average annual rainfall for South Florida is around 59 inches per year, that of which 31 inches are expected to fall during the summer months of June and September. This means the streets and highways will not only be more wet but also very slippery, which brings about an increased danger of automobile accidents.
In 2010, the Florida Department of Highway Safety and Motor Vehicles reported that over 32,460 car accidents were a result of wet and slippery roadway conditions. The majority of these car accidents are usually caused by the difficulty that rain presents in stopping, staying on the road or attempting to avoid a collision with another vehicle. One way that rain presents these difficulties is because when the road first gets wet, oil rises to the surface and creates a greasy surface. This in turn will not allow a driver to stop his or her car in time, which could lead to a serious or fatal car accident.
Here are some tips that may help prevent a car accident during this rainy season:
1. Drive at slower speeds, this should be obvious but many people choose not to do not this and end up driving recklessly. Though, by driving slower I do not mean way below the speed limit but really just slow enough that your tires still have significant traction. By doing this your tire traction will improve, which should allow for better reaction times and more time to brake.
2. Do not brake suddenly, stopping a car or truck to quickly may cause the vehicle to loose all traction with the road (being the roads are slippery and wet). This could cause the vehicle to hydro glide or skid, which could eventually lead to a car accident. If this does occur most experts suggest neither to panic nor make any sudden turns to the steering wheel because if you do this could lead the loose of control to be even more dangerous. Instead, the best thing to do is stay calm and just hold the steering wheel straight until the driver feels the car has regained traction.
3. Always keep your eyes on the car ahead of you, while also staying a safe distance away. This will allow you to watch any drastic reactions made by the driver of the car ahead of you. As the driver you should be thinking when he or she brakes I am braking as well. Although, keep in mind that sudden braking should be avoided. If you keep a safe distance from the car ahead of you while also being conscious of that driver's reaction this should allow you to have enough time to break slowly avoiding any dangerous skidding.
As a driver in South Florida, wet and slippery conditions are not my only worry because I also have to account for those drivers who seem to automatically forget how to drive in rainy conditions. Being that both Miami-Dade and Broward County lead the state of Florida in car accidents all drivers should keep in mind the many risks of driving during the next couple of rain filled months.
The South Florida car accident attorneys at Aronfeld Trial Lawyers specialize in investigating and protecting the rights of those involved in a car accident. So, if you or a family member is involved in an automobile accident caused by the rain this summer feel free to contact our experienced attorneys for a free consultation. Our Florida firm has over two decades of experience, and we look forward to providing you with great service and advice about your case.
Guest Blogger: Adrian Miguel, St. Thomas University Law School.
So let's start by assuming you fell down and got hurt at a shopping mall and hired a lawyer. Now as a client; you are unhappy or unsure about the lawyer you hired for your personal injury case and are considering changing. Let's imagine the following:
1. You have hired a lawyer who is in fact licensed to practice law and is familiar and experienced with the laws that pertain to the particular jurisdiction appropriate to your case--for the purposes of our example, we will assume Florida. To clarify, we often represent people who live in other states and countries for accidents that have occurred in other states and sometimes foreign countries, too. This is acceptable and permissible under certain circumstances beyond the subject matter of this particular post.
2. Your lawyer is ethical, honest, and likable (at least by you).
3. Most importantly, you trust your lawyer.
If any of the foregoing are untrue, then I believe you should seriously consider changing your lawyer. In an upcoming installment of this series, we will focus on the actual process for changing your lawyer.
Trust is the single most important ingredient in maintaining a healthy and productive attorney-client relationship. As in every relationship, both parties--the attorney and the client--have an obligation to be completely honest with each other. I learned to be completely honest with my clients and to try to be honest with everyone I encounter from my mentor, Gerry L. Spence, and from my wife Dina.
Spence taught me early in my career the greater depth of relationships I could enjoy with clients, judges, and juries if I was able to speak directly from my heart without filtering whether or not the truth would be what I might imagine a client or jury wants to hear. So I explain to my clients from our initial encounter that I will always tell them the truth as I see it, even if it is something that will disappoint, sadden, or enrage them. I ask them to make the same commitment to me: They must share their truth about what I need to know to help them, even if they think it will hurt my impression of them or, more likely, the value of their claim.
As for my wife Dina, I learned that I am not--despite what most people assume since I am an experienced lawyer--a very convincing liar. Many years ago, when I was first married, before I began studying with Spence as a young lawyer, I spoke to Dina. Somehow whatever I was telling her (and it is unimportant now), she knew it was untrue; something in my voice made her know I was lying, and I made a promise that I would try not to lie to her again or at least keep any lies to a minimum. Much like my wife, adjusters, defense lawyers, judges, and juries can also sense when witnesses are not being truthful, and usually a lack of candor comes back to hurt their chances of obtaining the full value of their accident cases.
Verifying whether or not your lawyer is in fact a licensed attorney is much simpler thanks to the internet. In each state a body governs and regulates the practice of law. In Florida, the Florida Bar and the Florida Supreme Court make the rules defining how we lawyers must behave with clients and opposing counsel, advertise our service, and even maintain our trust accounts. That body also provides a portal that allows consumers to verify if their lawyers have a valid license or have been reprimanded, suspended, or even disbarred. I believe that it is important before you hire a lawyer (and even if you are currently represented) to take a moment to confirm that your lawyer is in fact admitted to the Florida Bar. Click here to see my Florida Bar Profile.
The attorney-client relationship is unique, powerful, and important. If and when a client no longer trusts his or her lawyer, it may be time to consider making a change. In our next installment we will examine how to assess the qualifications and experience level of your attorney.
In this installment of "How and Why to Change a Personal Injury Lawyer in Mid Case," we address dissatisfaction with the settlement offer. After representing people injured in car accidents, slip and falls, medical malpractice, and during cruises, I have found that when and if an offer to resolve the case is made by the defendant or insurance company, clients often believe their own lawyers are at fault if settlement offers fall below what they had expected. It is actually common for clients to express their anger and to become hostile with their own lawyers.
I have seen clients fire their lawyers, me included, when they are unable to get the amount of money they want or they believe they need. In this post we will examine both how and why this happens and suggest some solutions.
How an Offer is Made in a Personal Injury Case in Florida:
These variables can be grouped into categories, but within those categories, every case is different. Let's use the grouping of restaurants as an analogy. There are fast food restaurants like Subway and McDonald's; there are high-end chain restaurants like Bennigans, Friday's or Houston's; there are local family-owned restaurants where the chef in the kitchen is the spouse of the one serving the food, and the one cleaning the table is their child, like Khoury's or Sakura; and then there are super fancy gourmet places whose names I can't pronounce or spell, but we know they exist out there, with wine lists and tuxedoed waiters who taste the wine for you before they serve it. In those expensive restaurants, the meal can take hours to consume, and the bill will be equivalent to a mortgage payment.
Within each of those categories are dozens of different menu items. And while all McDonald's franchises try to be the same, we all know some are better, cleaner, and just serve better-tasting food than others. By now you see the point as it relates to personal injury cases; there are slip and falls and car accidents. Some are going to be inexpensive and fast, some may take a few months to resolve, and some can be long drawn out with significant payoffs at the end.
As we discussed in the first installment of "How and Why to Change a Personal Injury Lawyer in Mid Case," I believe it is up to the lawyer to manage the client's expectations from the very first encounter. I commonly will ask my clients to express what they are looking for in the case and see what they imagine the case is worth and how long it will take. Most frequently they tell me that they have no idea, have never had an accident nor hired a lawyer. Most will tell me that they will leave that up to me and will follow my advice. But not all. Occasionally, a client will tell me the case is worth millions and won't settle for anything less. And I might agree, depending on the case, but more frequently, I won't because for more than one reason their case may not be worth what they think or hope it is.
Why is my case not worth a million dollars? The most common reasons:
1. There is not enough insurance. This sadly is the primary reason that many clients are angry and dissatisfied with the settlement offer. For the same reason, I am not a billionaire by now. At least once or twice a day for the last two decades, I have had to tell someone who has been hurt--whether mildly or profoundly--that those who caused the injury have insufficient insurance (or none) to cover the full value of the claim.
This is true of medical malpractice (as Florida's law allows our doctors to practice medicine without insurance), car accidents (as Florida's law does not require car owners or drivers to maintain bodily injury insurance), and injuries at people's homes and businesses (as Florida's law does not mandate that homeowners or business owners carry liability coverage).
As an aside, as I write this I wonder whether Florida's pro-insurance and -business legislature and Governor have considered just how much the insurance industry would benefit from selling more insurance if Florida's vehicle owners were required to purchase bodily injury coverage in addition to the already mandatory personal injury and property damage protection. Do our legislators believe that if bodily injury coverage were truly required, then the insurance companies would have to pay out so much more for the pain and suffering of traffic accident victims that they would lose money? Governor Scott, I would appreciate reading your thoughts in the comment section provided below.
Back to the initial client conference. It is vital that we lawyers explain to clients at the onset that regardless of how much pain--physical, emotional, and financial--any kind of accident or malpractice has caused them or their families, the amount (if any) of insurance will most likely govern how much can be recovered. And it also needs to be made crystal clear that even if the little bodega on 8th Street has a million dollars in liability coverage for their aunt's slip and fall on a banana peel, it does not mean that they are going to get the full policy limits. I confess that this misconception has long haunted me and is currently haunting me on a pending case.
The minute the clients learn how much coverage is available (which is rarely known at the inception of a case), they become fixated on the amount of the full policy limits. Rarely if ever is a case worth the full policy limits on a slip and fall unless the person was severely incapacitated or killed, and the rarity is because of the legal defenses known as liability and causation and damages.
2. Liability--Most personal injury cases are defensible. That means that the conduct of the claimant can be raised as a reason for the accident. This is true in car accidents and especially in slip and fall cases. Insurance companies and their lawyers will examine how and why the accident occurred and try to find some action that the claimant took or should have taken as a reason for why the accident occurred. Often these defense can be used to lower or even obliterate the value of a claim. To learn more about slip and fall defense please read, "How to Win a Slip and Fall Claim in Florida," May 14, 2013.
3. Causation and Damages--Broken bones, amputations, lacerations, and abrasions are what we lawyers like to call objective injuries that juries can see and understand as caused by the accident in question. Mild traumatic brain injuries, emotional trauma, aggravations of pre-existing conditions, back and neck pain, or strains are difficult to see, diagnose, and treat, and most importantly it is hard to convince a jury of their existence. For these reasons, cases that involve these kinds of injuries are less valuable because they are simply more difficult to prove-- not only that the injuries existent but also that they were caused by the accident.
In conclusion, while clients may want to change their lawyer in the middle of a personal injury case because of their dissatisfaction with the offer of settlement, the low offer may very well stem from issues such as insurance coverage limits that are beyond the control of their lawyer. I believe it is important for lawyers to have this conversation with the client at the very beginning and repeatedly throughout the case to remind their clients that a low settlement offer is not something they can foresee or control. In our next post we will examine situations in which the lawyer's conduct may indeed be responsible for the inadequate offer.
I am often asked, "Can I change my lawyer in the middle of my case?" by people who have already retained a personal injury attorney but for a variety of reasons are dissatisfied and want to switch counsel. The answer is yes, but there are a number of issues that require consideration by both the client and soon-to-be-former lawyer about how and when the transfer of the matter can take place.
Over the course of the next several posts, we will examine those issues, including how a client's file and documents are transferred, and whether or not and how much the soon-to-be-former lawyer gets paid, as well as what are the benefits and costs of changing a personal injury lawyer mid-case.
Before looking at how you can switch lawyers, let's consider why you might do so. Virtually every one of these instances could have been avoided with better initial client communication and management.
Most personal injury victims have never hired a lawyer before their case. Their expectations of how fast their case would resolve might be based upon what they have seen on TV or in a movie. They imagine that sometime after the first couple of days or weeks, their case should be done, but this is almost never true. It is the responsibility of us lawyers to manage our clients' expectations from the very beginning. I believe it is vitally important that they be explained the process and time line for a personal injury case. For example, the typical car accident with a minor injury or slip-and-fall case at a Publix or Starbucks could take between six months and a year to resolve without filing a lawsuit. If a lawsuit is filed, an injury case can lumber slowly through the court system for years before a trial, and then a year or two more for an appeal, only to then start again with another possible appeal, causing some personal injury cases in Florida to go on and on for a decade.
Unbelievably, the most common complaint heard from clients of other lawyers wanting to switch is that their current lawyer simply does not respond to their phone calls or emails regarding the status of their cases. When I am told this, if I know the other lawyer, I will ask the clients if they would prefer that I call their lawyer and simply advise him or her to contact them.
Not returning a client's phone call or email is not only bad business; it can potentially lead to the filing of an ethics grievance with the Florida Bar. The Florida Bar has very specific rules about keeping our clients informed about the progress of their matters. In fact the Florida Bar's Ethics Code's preamble states, "In all professional functions a lawyer should be competent, prompt, and diligent. A lawyer should maintain communication with a client concerning the representation."
If you have a case and have left more than three or four voice messages over the course of more than a week or two without a return call, I would suggest sending a letter and/or email to that lawyer. If you still are not contacted, The Florida Bar can often be of assistance. They can be contacted by phone at: 850-561-5000. No lawyer likes to receive a communication from the Florida Bar about a disgruntled client, but there may be perfectly reasonable or even unfortunate reasons why your calls have been ignored. I urge anyone that does not receive a return call not to automatically assume the lawyer is ignoring you; he or she may be out of town, in trial, or had a family or health-related emergency. Either way, if a reasonable time period elapses without a return call, contacting the Florida Bar is an alternative.
In our Miami civil law office, my rule is that client calls are returned by the close of business the day the call is received. Our lawyers work every day, seven days a week, and will return urgent messages late at night and on weekends. After all, being a lawyer is supposed to entail providing legal service.
Occasionally clients can abuse the service by repeatedly emailing and calling; when and if this occurs, we will let our clients know that we cannot provide them the level of service they are seeking. That is why it is important at the very inception of our representation that we explain there will be times when we will need to speak and meet with our clients daily, even several times a day. But there may also be periods when little to nothing is happening on their cases, and that there really won't be much to discuss other than the weather.
In our next segment we will address another common reason a personal injury client may want to change lawyers--dissatisfaction with the current offer. In the meantime, if you currently have a claim pending with another lawyer and are unable to contact him or her, please first try sending a letter and/ or an email before contacting the Florida Bar. If you are client of mine, and need to reach me, here is my email: email@example.com
Summer is approaching, and record high temperatures are expected. The increased heat brings an added danger for children that yesterday cost the life of a one-year-old Miami boy, Bryan Miguel Osceola. His mother, Catalina Marista Bruno, left him unattended in the backseat of her Chevy under Miami's scorching sun.
According to the Miami Herald, when the boy was finally discovered, he had a body temperature of 109 degrees and had literally baked to death. Ms. Bruno has been previously charged in a separate incident with driving under the influence and child endangerment.
It is unknown whether or not drugs or alcohol were involved in Bryan's being left alone in her car, but as a children's accident lawyer in South Florida, I believe these types of tragedies can be prevented. Foremost, I also want to share my condolences with Bryan's family.
Sadly, children die or are severely injured by being left alone in cars more frequently than one would imagine. Every year nearly 40 children die from heat strokes after being abandoned in hot cars and trucks in the United States. And often those that survive are left with debilitating life-long health issues.
Before researching this issue, as both a parent and Broward children's injury attorney, I imagined that all of these cases must have happened when a caregiver simply was distracted and forgot that the child was left behind. But I was surprised to learn that nearly one out of every three cases involved a parent intentionally leaving the child in the car. Sometimes, the parent did not want to wake a sleeping baby, underestimating just how quickly the interior of the car could heat up as well as the added danger to a child strapped into a car safety seat.
Multiple studies show that a car left in direct sunlight with no ventilation can reach temperatures of nearly 160 degrees Fahrenheit. Moreover, even cars with window tinting do not block long-wave radiation, which with the intense heat literally can create a greenhouse effect inside the cabin of the car.
Parents who live in high-crime cities are afraid of leaving their children alone in cars for fear of abduction. However, often times they do feel it is okay to leave their child alone provided they can visually see their child in the car while they run in to pay for gas or pick up the dry cleaning.
Unfortunately, within less than five minutes, temperatures can soar to dangerously hot levels.
These types of children's injuries and deaths are preventable, and I urge all parents to follow the measures below and share them with your children's caregivers, especially grandparents and nannies who may not read our blog.
1. Get involved. If you see a child alone in a car, with no parent in sight, call 911.
2. Use drive-throughs whenever possible and unsubscribe to the notion of "I am just going to run in for a minute."
3. Pay at the Pump. If your gas station has one those "pay inside" placards over the credit card swipe, drive to the next station.
4. Stick your cell phone, lipstick or house keys in the back seat so that you are forced to look before you leave and lock your car doors.
Lastly, for those app makers out there, here's a suggestion: create an app that will sound an alarm whenever the ignition is turned off and the car doors are locked, or if a car seat is more than 10 feet from the key fob. I am a personal injury lawyer, not an app creator, so I leave the details up to you.
It's good news, but it comes late for thousands of Americans implanted with metal-on-metal hip artificial hip replacements: De Puy, a division of Johnson and Johnson, the manufacturer of both its Articular Surface Replacement (ASR) and Pinnacle models, has announced that it will stop making metal-on metal (MOM) hip implants. MOM hip implants are designed and manufactured to have the cup, ball, and shell all made from cobalt-chromium-molybdenum alloys. En Español.
Most problems have been caused by the friction of the metal ball rubbing, fretting, and corroding inside the metal cup, which typically occurs during walking or running. Soft tissue damage may lead to pain, implant loosening, device failure, and the need for revision surgery (a surgical procedure where the implant is removed and another is put in its place). Moreover, some of the metal ions released can enter the bloodstream and travel to other parts of the body, where they may cause symptoms or illnesses elsewhere in the body (systemic reactions).
When this happens, microscopic shards of metal are discharged into the soft tissues, causing inflammation, pain, bone loss, swelling and pseudo tumors. According to an FDA Safety Communication, metal fragments can also be released from other parts of the implant where the implant components connect. This is sometimes referred to as an "adverse local tissue reaction (ALTR)" or an "adverse reaction to metal debris (ARMD)."
Initially De Puy recalled the ASR model after receiving a large number of patient complaints and reports of early device failures. But even after it recalled the ASR recall, De Puy continued to market and sell the Pinnacle. Currently, our hip implant recall lawyers in Miami are representing injured people in claims and lawsuits against both De Puy and Stryker, the maker of the Rejuvenate device. De Puy is facing nearly 15,000 hip implant claims related to these two devices alone.
We often receive calls from people who have had metal hip implants but feel symptom-free. We recommend that if you have undergone hip implant surgery, you schedule a visit with your surgeon or primary health care doctor for a physical examination at least once a year. At the examination, I believe you should ask your doctor about having the following assessments:
1. Routine x-rays of the implant device.
2. Soft tissue imaging like an MRI or CT scan to detect swelling, inflammation or a pseudo tumor.
3. Blood test to assess metal ion levels.
Studies show that certain patients are at a higher risk for hip implant failures, such as women, patients who have had both sides replaced, and those who are allergic or sensitive to cobalt, chromium, and other types of metal.
Many people simply don't know the make and model of their implant. Therefore, you should consult with a law office that is experienced in both understanding and recognizing recalled hip claims and lawsuits; many do not know that they are entitled to financial compensation for pain and suffering, medical expenses, and time off from work. Please contact our lawyers for a free consultation regarding your potential case.
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. EN ESPAÑOL.
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."
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.
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.
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
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.