Florida Injury Lawyer Blog

The case of a 27 year old Miami woman who was raped at the Pleasure Emporium in Miami Gardens, while working the midnight shift, is one of the more terrifying my recent memory as a Miami crime victim attorney.The store utilized cameras, both inside and outside, extensive lighting, a locked front door which required customers to be buzzed in, and a panic button.

According to the court file, Jose McCray, armed with a pistol, ordered L.B. to give him all the store's money and lie on the floor. He then raped her and left. L.B. hit the panic button and called 911 on her cellphone.

Clearly, the security measures were not adequate to protect L.B. and she sued the store for negligent security.

The store has previously had four armed robberies during the overnight shift, with the last one taking place only two months before L.B. was raped. L.B. claimed she had never seen Mr. McCray before, but a co-worker testified that he had been in the store three days before the attack asking for L.B. This became a crucial piece of evidence in the case, as experts testified that the rape was "victim targeted" and not a result of inadequate security.

In proving and defending negligent security cases in Florida, both the victim and defendants utilize security experts to opine as to whether or not the store, mall, apartment, condo, and/or school provided adequate or reasonable security. They are permitted, assuming they have the qualifications, to testify and render opinions on security matters and procedures, but not on the assailants motives for choosing the victim as a target. Victims of crime have to prove that the crime was not specifically directed at them but was rather a random act of violence as a result of inadequate security.

In this case, the defense wanted to have the jury hear the co-worker testify that three days before the rape, the assailant had come in to the store asking for L.B., to prove that this was a victim specific crime. L.B. wanted to keep the statement out, as it is considered to be hearsay (an out of court statement).

Ultimately, the Judge let the jury hear the statement by way of the store's security expert, Gregg McCray, who claimed that he relied on the hearsay statement in concluding that the crime was "victim targeted."

The jury returned a verdict for the defense and L.B. appealed to Florida's Third District Court of Appeal.

The appellate court reversed the trial court and held that the expert could not be allowed to testify on those things that are beyond the scope of his expertise, namely, the motive of the assailant for raping L.B. Yet, the court held that the co-worker's statement should be relayed to the jury as, while technically hearsay, it can help prove the foreseeability of the crime and prove why the assailant returned to the store.

I do not agree that the statement should be provided to the jury unless the witness is live in the court room or had a sworn deposition. I am pleased, however, that the victim of this senseless crime will have another chance at justice. I hope that this will encourage all Florida business owners to take every reasonable precaution to provide a safe place for both their customers and employees. It is inexcusable to me that, after four armed robberies, the Pleasure Emporium did not do more to protect L.B., like hiring an off duty police officer, security guard, a bulletproof security booth inside the store and an earlier closing time. Obviously, not every Florida rape or crime can be prevented, but businesses have an obligation to do everything reasonable to prevent foreseeable acts of violence.

Florida has very particular laws governing slip and fall cases. Often, people who are injured at a Florida business expect that it is automatically the business owner's legal responsibility to pay for the damages or injuries, simply because they fall.

Recently, Florida's Fourth District Court of Appeal, in the case of Burton v. MDC PGA Plaza Corp. and Holiday CVS, LLC, reversed a summary judgement entered on behalf of an injured patron at a CVS Pharmacy. Apparently, Janet Burton was injured, helping to open a new CVS Pharmacy, while unloading fixtures and stocking shelves with merchandise. In the midst of work, she noticed a pothole about one foot wide and two inches deep in the parking lot. She had advised CVS management and co-workers to be careful not to fall. About a week later, while returning to the store, she was seriously injured when she stepped into the same pothole, tripped, and fell to the ground.

She sued CVS and the landlord MDC, alleging that the Defendants breached their duty of care the maintenance, inspection, and repair of their Florida premises. Both Defendants answered and moved for summary judgment, to prevent the case from going to a jury, on the grounds that they owed no duty of care since the pothole was "open and obvious." CVS also argued that it leased the property and it, therefore, had no duty to maintain it. The trial court agreed and dismissed Ms. Burton's case.

On appeal, the Fourth DCA reversed and stated that a pothole is not a natural condition and is only formed when a landlord fails to maintain it properly by allowing it to fall into disrepair; and,furthermore, that Ms. Burton's knowledge of the condition, before she fell, does not discharge CVS's responsibility. Additionally, the court refused to allow CVS to escape responsibility merely because they lease the property, and held that CVS was as responsible as the owner because they invited Ms. Burton on to the property that they implicitly controlled and had the same responsibility as the owner.

This ruling makes it clear in Florida that a commercial tenant like CVS has a duty, independent of the landlord's duty, to maintain its parking lots and stores in a reasonably safe condition regardless of whether or not the landlord has contractually assumed the responsibility.

As a Florida personal injury attorney, helping people hurt at a Publix or a CVS, I applaud the court's decision to disallow CVS to escape responsibility for allowing their parking lot to be in disrepair. I hope this decision will motivate all Florida commercial retailers as well as landlords to ensure their parking lots are well lit and free of dangerous potholes or hidden tripping hazards.

Police are usually called to the scene following a Florida car accident. They are required, in most cases, to write an accident report. Pursuant to Florida Statute Section 316.066 (5), however, the accident report is inadmissible evidence to the jury when the case goes to civil trial for damages.

This statute was recently challenged in a motor vehicle accident case that resulted in the death of a pedestrian, Christopher Cepeda was only fourteen years old when he and four of his friends were walking home after playing basketball. He was killed while crossing U.S. 27, a major four-lane highway with a wide grassy median and a posted speed limit of 65 miles per hour. As Mr. Cepeda and his friends waited in the median to cross the road, Denise Sottilaro suddenly changed lanes and, although she claimed to have hit her brakes, slammed into the boy. He later died from the injuries.

About an hour after the accident several of Mr. Cepeda's friends, who witnessed the accident, gave sworn statements to the Deputy Sheriff who was investigating the crash. They apparently stated that Mr. Cepeda was busy looking at his phone and texting when he was hit and killed by the Defendant's car. The Deputy included the sworn statements in his traffic fatality investigation report.

During the trial one of the witnesses testified live. The defense lawyers wanted to use the sworn statements to impeach the witness's testimony after he testified at trial that he did not know if Mr. Cepeda was texting or not at the time of the impact. The Trial Court would not allow the witness to be impeached with the sworn statements made to the Deputy.

A verdict was rendered in favor of the boy's Estate and the Defendant appealed to Florida's Second District Court of Appeal in the case of Sottilaro v. Figueroa. The Appellate Court reversed the Trial Court and held that the accident report privilege only applies to the driver, owner, or occupant of a vehicle because they are the only persons legally compelled to make an accident report. Witnesses of an accident are not protected by the privilege because they are not involved in the accident and do not have any rights or responsibilities regarding the accident.

The immediate effect of this opinion takes away a substantial verdict given to the family of a boy killed by a car while crossing a Florida road. As a Palm Beach hit and run accident attorney, I am disappointed with the Court's interpretation of the statute, as I believe it will discourage witnesses from wanting to be involved in accident investigations and jury trials for fear they will be subjected to cross examination or impeachment for the information they provide to law enforcement. I am saddened that this family, who lost a child, will have to sit through an entirely new jury trial after their substantial verdict was taken away.

The benefit of this statute, however, is that anyone involved in a motor vehicle accident in Florida as a driver, passenger, or owner of a car, or a pedestrian when injured by a vehicle, can feel confident that their statements made to law enforcement can be truthful and not be used against them in violation of their Fifth Amendment privilege against self-incrimination.

Lastly, this case wrongful death case, again, also highlights the dangers of texting while driving or crossing the road, and we urge everyone to simply put their smart phones away until they are safely able to focus on what they are doing.

Effectively representing a passenger injured on a cruise ship is often very complicated for lawyers. The most difficult task is making sure that the claim is properly filed in the correct court before the statute of limitations expires. Statues of limitations are legal deadlines that mandate certain actions to take place or a law suit will get dismissed.

Most cruise ship claims fall under general maritime law; however, cruise ships have additional specific laws that apply to injured passenger claims. For instance, cruise lines often place special provisions into their passenger tickets that shorten the amount of time required to initiate a claim. For example, a slip and fall in Florida shopping mall, in most cases, gives the injured four (4) years to file a law suit. If the fall occurs on a cruise ship, however, the time is shortened to one (1) year. This can often lead to missed statutes of limitations, especially when claimants or their lawyers try to negotiate a settlement to avoid the cost of filing fees during the year following the fall. Once the year is up, suddenly the cruise line stops returning calls or pretends to be "working on a settlement," forcing the injured to file a law suit only to realize the statute of limitations expired. Cruise lines routinely get these cases dismissed and unrepresented claimants are left with no recourse or their attorneys are forced to put their legal malpractice carriers on notice.

Another cruise line defense is to force all claims to be filed in Federal Court in Miami, Florida. This is often referred to as the Forum Selection Clause. Federal Court in Miami may be the appropriate forum even when the ship, passenger, or crew has no connection to Miami. For instance, a Saudi citizen on a cruise departing from Barcelona, Spain, who slips and falls and is injured while the ship is embarking from Nice, France, may have to still file her claim in Miami, Florida. And of course, this must be done within one year. Cruise lines have been uniformly successful in getting cases dismissed when they are filed in the wrong jurisdiction or venue. For example, filing the claim in Miami-Dade Circuit Court and not the Southern District of Florida, in Miami, could result in having the entire claim dismissed.

The leading case which recognized the validity of a forum selection clause in a passenger ticket contract involved Carnival Cruise Lines. The name of the case is Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585; 111 S.Ct. 1522 (1991). In this case, the United States Supreme Court ruled that forum selection clauses should be enforced so long as the clause is not unreasonably burdensome on the party seeking to escape it. The passengers were from Washington and were injured on a Carnival Cruise ship in international waters off the coast of Mexico. The passengers filed the law suit in Washington and the case was dismissed. The appeal went all the way to the Supreme Court. It was ultimately held that the passengers had bought the ticket and no one had forced them to go on the cruise, so the forum selection of Miami was not unreasonable.

To complicate matters even more, the majority of cruise line vessels are purposely registered in non-US territories. This is done because the laws of these other countries are less favorable to the rights of injured passengers.

If you are hurt on a cruise liner it is important to take immediate action to protect your legal rights.

1. Make sure the incident is reported to the ship's security department immediately. Failing to report an incident will give the ship a strong argument to deny the event ever occurred.

2. Obtain a copy of the written report and refuse to sign anything written in the report.

3. Get witnesses' names, email addresses, phone numbers and hopefully photos of anyone who witnessed either the event, clean up, or your injury.

4. If injured, go to the infirmary and seek immediate medical care. Obtain the names of the people who treat you and make sure you give an accurate medical history of any prior injuries.

5. If the ship is unable to provide you with adequate care, seek medical care at the next port of call. Let the ship's personnel know you are going to the hospital. At this point, your health is more important than the cruise.

6. Contact an experienced passenger injury lawyer immediately to preserve your legal rights.

Passengers are often injured on cruise ships by slipping and falling at the pool or water slides, from bad food, or by assault. As a cruise ship injury lawyer, I am committed to protecting the legal rights of those injured aboard a cruise ship.

As a former bicycle racer and as a Florida bicycle injury attorney, I know that South Florida is a very dangerous place to ride a bicycle. The tragic death of Aaron Cohen, a 36 year old Miami father and husband, mowed down in a hit and run car crash Miami's Key Biscayne--Miami-Dade's most popular cycling circuit--causes one to question how these types of catastrophes can be avoided. Mr. Cohen's death occurred nearly two years from the day that Christophe LeCanne, another cyclist, lost his life in virtually the same place.

Triathlete Thomas Jennings is recovering in a Kendall trauma center after he was hit by a car in Northwest Miami-Dade. He suffered a shattered knee and an open fracture that required screws, bolts, and a plate to put back together.

Like many Miami cyclists, Mr. Jennings and Mr. Cohen have the responsibility of supporting young children. A catastrophic car crash can leave a family both physically and financially devastated. According to statistics, severe head injuries account for about one third of hospital emergency room visits for all bicycle-related injuries.

Florida has very specific laws regarding how to ride a bicycle on public streets. Florida Statute §316.003(2) defines a "bicycle" as a vehicle that is human powered and capable of achieving speeds over 20 mph. Florida Statute Section 316.2065 mandates that bicycles ridden after sunset and before sunrise have a front white light that is visible from at least 500 feet and a rear red light that is visible from 600 feet.

Anyone riding a bicycle under 16 years of age must wear a properly fitting helmet that is certified by a nationally recognized safety association. The law also requires that one hand be kept on the bars at all times.

According to Florida Statutes §316.2065(10) and (11), cyclists are permitted to ride a bicycle on the sidewalk and are provided with all of the rights and duties that are applicable to a pedestrian in the same circumstances.

Key Biscayne is often used by cyclists to train because of its central location, the bridge, and breathtaking views of the Miami skyline. However, in reality, Miami offers little alternatives. The recent epidemic of bicycle/car collisions highlights the immediate need for Key Biscayne to be made safer. I recommend the speed limit be lowered to 20 mph for all cars and trucks and a greater police presence on both the east and west bound road from the toll booths to the Village of Key Biscayne. I would also recommend more signs that flash, reminding drivers to be cautious and on the look out for cyclists, and the complete blocking of one entire lane for bicycle use in the early morning hours between 5-9 AM.

As a MIramar bicycle crash injury lawyer I recommend that all cyclists always use a bicycle helmet that has been properly fitted, as they are the most effective means in reducing the severity of a head, brain, and upper facial injury. We also urge all cyclists to make sure they have valid uninsured motorist coverage on their car insurance to protect them in the event they are hit by a car with little or no insurance coverage available to compensate them for medical expense, lost wages and injuries. Our thoughts and prayers go out to the families of these cyclists.

In cases where a Florida hospital or doctor is accused of causing the death of a patient, the patient's family has to prove not only that the healthcare provider made a medical mistake but that the mistake, in fact, proximately caused the patient's death.

Camillus Alfred, a Broward County Florida husband, recently sued Hollywood Medical Center alleging that they were responsible for the death of his wife, Ursuline Alfred. A Fort Lauderdale jury agreed and entered a verdict against the hospital. The Florida hospital appealed the verdict, to the Fourth District Court of Appeal, and argued that the Judge should have entered a directed verdict and should have never allowed the case to go to a jury. The hospital claimed that Mr. Alford was unable to prove that the hospital's nursing staffs' (not the defendant doctor who incidentally settled while the jury was deliberating) acts "more likely than not" caused his wife's death.

Apparently, Mrs. Alfred died after unsuccessful attempts to intubate her caused her to go into cardiac arrest. Intubation should only take seconds and is a method of delivering increased oxygen to the heart.

The Appellate Court in Hollywood Medical Center, Inc. d/b/a Hollywood Medical Center v. Camillus Alfred, as Personal Representative of Ursuline Alfred, reversed the trial court by stating that there was no evidence in the record that the nursing staffs' negligence was a cause of death or that it was a nursing obligation to intubate a patient. Moreover, even though there was proof of nursing mistakes, there was no evidence that any of the failures affected the ultimate outcome.

Florida's medical malpractice law is outlined by Florida's Supreme Court in the seminal case of Gooding v. Univ. Hosp. Bldg. Inc., 445 So. 2nd 1015, 1018 (Fla. 1984). It requires that a claimant in a medical malpractice case prove that the injury "more likely than not" resulted from the defendant's negligence in order to establish a jury question on proximate cause. When a plaintiff cannot prove proximate cause in Florida, a defendant is entitled to a directed verdict.

Many mistakes are caused by Florida's healthcare providers every day from birth trauma injuries to bed sores. Often times, these mistakes result in injury, disfigurement, and death. However, if a claimant is unable to prove that the mistake "more likely than not" caused the injury or death, the injured patient will not be legally entitled to submit their claim to a jury. As such, proving causation is often the most difficult element in litigating claims on behalf of Florida's injured patients.

Our Florida patient advocates are dedicated to holding hospitals and doctors responsible for the harm caused by their negligence. We hope that this ruling will not discourage doctors and hospitals from providing Florida's patients the best healthcare possible.

Dear Florida Personal Injury Lawyer Spencer Aronfeld:

Do I need a lawyer or an attorney to handle my Florida hit and run car crash? What is the difference between a Florida car accident lawyer and an attorney?

I was involved in a crash in Fort Myers on Thursday. A small pickup truck cut me off and forced me into a parked car. I did not feel pain immediately and refused an offer by the police to have an ambulance transport me to the local Emergency Room. The next day, I woke up and could not move. I felt like I had been in a fight and lost. My wife gave me some Advil and called my Primary Care Physician. He does not have an appointment available till Monday. What should I do?

Thanks,

Injured in Ft. Meyers

Dear Injured in Ft. Meyers:

Thank you for reaching out to me. I am sorry you were involved in this wreck. The most important thing I can advise is for you to seek immediate medical care. Assuming you have the mandatory minimum coverage (Personal Injury Protection or PIP) and/or health insurance you can, and should, go to the Emergency Room. Tell the doctors there how the accident happened and let them order the appropriate diagnostic tests. The advantage this has for you is considerable for several reasons. First, they will have the ability to get X-rays, CT Scans, MRIs and/or blood work right on the spot. If the ER doctors feel you need a consult with an orthopedic surgeon or neurologist they can request that the "on call" specialist see you while in the emergency room. It will also be helpful in ruling out a potentially serious injury, like an embolism or clot. Once you get released from the ER you can read the next paragraph.

You should immediately contact your insurance company and advise them you were involved in a car accident. Take photographs of your car and obtain a claim number and a copy of the Police Report or Driver's Exchange of Information Report. Do not sign anything with any insurance company until you have had an experienced Florida auto accident lawyer review the papers.

If you are injured and feel that you need the assistance of a lawyer to help you, I recommend that you only consult with a Board Certified lawyer from the Florida Bar in Civil Trial. There are plenty of lawyers out there, who advertise on everything from bus benches to urinal cakes, and they may be good, but the Florida Bar's Board Certification process is the ultimate seal of approval.

Lastly, to answer your question regarding the difference between a lawyer and an attorney depends on who you ask. Most will tell you that there is no difference, though, technically, one can be a lawyer and not necessarily an attorney at law. A lawyer is someone who has presumably graduated from an accredited law school but may not necessarily be licensed to practice law by being admitted to a State's Bar. Many government lawyers practice for the government but are not admitted to practice by any state. Often law school professors and administrators are unlicensed lawyers too. Attorneys, on the other hand, have been admitted or are admitted to practice law in a particular state. In other words, an attorney is a lawyer, but a lawyer is not necessarily an attorney.

If our Florida car accident law firm for those injured by a drunk driver can be of further assistance to you, please contact me for a confidential consultation about your legal rights.

I hope this is of help to you.

Respectfully,

Spencer Aronfeld
Florida Board Certified Civil Trial Lawyer

I have been a practicing attorney specializing in personal injury and medical malpractice in Florida for over twenty years. Rarely does anything in the realm of my job shock me anymore. I have seen doctors lie, hospitals destroy records and convenience stores conveniently destroy the surveillance video of a client's assault.

When our Miami medical malpractice law firm recently filed a law suit against the Florida Department of Corrections ("FDOC") on behalf of a prisoner who we allege received negligent medical care while incarcerated, I learned of Florida's Statutes §960.297 and §960.293 for the very first time. According to the statute, the State of Florida or a local subdivision can file a civil law suit or in our client's case, a counterclaim to a law suit against the State, to recover money for the cost of incarceration and "other correctional costs" of $50.00 a day based upon the length of the sentence imposed by the court. If convicted of a capital or life felony the amount the State is entitled to $250,000. The State has up to 5 years after the date of release to sue for reimbursement. Read the counterclaim filed against our client by the FDOC here: Fla DOC counterclaim for restitution-9238.pdf

What does this mean in terms of prisoners who are injured due to the State's neglect? It means that the Department of Corrections can hurt a prisoner by negligently causing an injury or for civil rights abuses and can then turn around and sue the injured prisoner for repayment of the cost of keeping him imprisoned. To my knowledge this type of law does not exist in any other context. This insane law is the equivalent of allowing doctors or hospitals to sue patients who they injure or kill for the cost of the medical treatment, or a manufacturer of a dangerous medical device, like a De Puy Hip, to sue a patient for the cost of the implant.

I believe that if a judge or jury finds that the acts of the Florida Department of Corrections caused or contributed to the cause of the injury that is the subject matter of a law suit, the FDOC should be barred from bringing suit for repayment of the cost of incarceration. Furthermore, the 5 year statute of limitations for collecting repayment for incarceration should be limited to the same period of time that a prisoner would have to initiate a law suit against the FDOC. Furthermore, I believe that this law should not be enforced against any prisoner when the prison is privately run.

It seems to me that a prisoner, once released, has fulfilled his obligation to society. If the prisoner works while in prison, providing labor on farms, performing road repairs, serving meals or participating in sanitation processes, that labor should be offset by any amount owed for reimbursement. As a Miami Beach hotel injury attorney, I believe that suing prisoners who have been injured at the hands of the Florida Department of Corrections for reimbursement of the cost of incarceration violates the Eighth Amendment. Requiring a newly released prisoner, who was injured in prison and trying to obtain employment and be reunited with his/her family, to defend a law suit to collect money just does not seem like the best way to give someone a fresh start.

Feel free to email Florida's Governor Rick Scott and let him know how you feel about this law.

Why is doing pro bono legal work important for both attorneys and law students? Most lawyers feel that practicing law is their job, a means to support themselves and their families. They believe that by providing a service to clients in exchange for a fee, discharges them from any obligation of doing additional legal work for free. I have often heard lawyers comment to me, "if I want to do charity, I will, but I do not want to feel obligated to do it." Or, "if a baker bakes cookies all day, the last thing she wants to do is go bake cookies for free." Of course, I understand, but I do not agree.

As a Florida injury attorney the practice of law and the privilege of being a member of the Florida Bar carries with it an additional obligation to be of service. The legal needs of many Americans are simply not being met. At a time when there are record numbers of unemployed lawyers, and especially recent law school graduates, I find it absolutely astonishing that such a tremendous demand cannot be satisfied with the overwhelming supply of talent.

Lawyers to the Rescue was created in 2010 by lawyers, in part, to help bridge that gap between need and help. Lawyers from various backgrounds, experience and specialties join together to create a team of passionate lawyers advocating for those in need.

Scott Kotler, a Miami criminal defense attorney is an excellent example. During the week, one can find Scott in court defending those accused in cases ranging from domestic abuse to murder. Yet, one weekend a month, he spends his Saturday morning at Miami's Camillus House providing legal services to Miami's homeless. I asked him why, when many lawyers head to play golf or tennis, he decides to spend it working for free. Mr. Kotler said that the time he spends working with Lawyers to the Rescue is often the most spiritually rewarding time of his week. He often brings his son to the homeless shelter who, with Scott and other lawyers and law students, prepares and serves meals to the homeless. Recently, for no fee at all, Scott was instrumental in helping a homeless woman obtain compensation that she was owed, which provided her the financial means to get off the streets and obtain housing.

Scott Kotler, serves as both a role model and a reminder to me and many lawyers as to why we went to law school in the first place. It is very easy to get caught up in the minutiae of law. When our Miami law firm helps somebody injured at a Publix we do not typically bill our clients by the hour for our work; but lawyers who operate hourly billing practices are often subject to enormous pressure to meet billing requirements. This often leaves them exhausted and depleted. Lawyers to the Rescue is, in essence, like Chicken Soup for the Soul of the depleted lawyer. I urge anyone who feels that they have lost their sense of purpose as an attorney to join Lawyers to the Rescue at one of their upcoming legal clinics or events.

On February 28, 2012, Lawyers to the Rescue and the University of Miami are hosting The Public Service Awards, a special event to honor members of South Florida's legal community who serve as role models to lawyers for their devotion and passion for public service. Bennett Brumer, who served for decades as Miami-Dade's Public Defender, will receive a Lifetime Achievement Award to celebrate over 40 years of providing legal service to the poor. He stands along with State Attorney Katherine Fernandez Rundle, Judge Scott Bernstein, Attorney John Kozyak, Attorney Jessica Laleh and law student Dominick Lazerra as shining examples of how lawyers can be of service.

This Miami auto accident injury law firm believes it is more important than ever for the public to be reminded that lawyers can be the good guys and not just the punch line of jokes.

The selection of a surgeon can often mean the difference between having a fantastic result or of making a medical condition go from bad to worse. I recently had the privilege of appearing on "The Doctors" with Dr. Drew Orden during a segment on how to select a plastic surgeon. For over twenty years Dr. Orden has practiced aesthetic plastic and reconstructive surgery New York City, Beverly Hills and Rancho Mirage.

Our South Florida medical malpractice law firm believes that before undergoing any elective procedure you should obtain a number of opinions from various surgeons. Selecting a surgeon based upon the lowest price is rarely the best decision. We also recommend that patients do research on their potential doctors. Florida Statutes section 458.320 is the law that regulates the financial responsibility of doctors. Unbeknownst to most people, Florida does not require that doctors carry medical malpractice insurance. Accordingly, you should go to the Florida Department of Health's website (or the equivalent for the state in which you reside) to verify that your potential surgeon is in fact licensed and has staff privileges at a near by hospital.

Many plastic surgeons will send you to a "friendly" doctor to clear you for an elective surgery. As a lawyer who has sued plastic and cosmetic surgeons for over 20 years I recommend that you go to your own primary care physician or find an independent internist to perform the preoperative clearance.

Lastly, many states allow doctors to perform plastic and cosmetic surgeries that are not actually trained or board certified in Plastic Surgery by the American Board of Medical Specialties (ABMS). Since 1933, the ABMS has certified doctors to help patients and hospital identify doctors who are able to provided specialty health care in a number of medical. In all, there are 24 medical specialties and sub-specialties.

As an attorney who sues doctors in Florida who operate on the wrong site we believe that every patient should take the time to understand not only the kind of procedure they are undergoing but as much as possible about the person performing the surgery. Information enables a patient to make informed decisions about their care and hopefully prevent them from becoming a victim of a cosmetic surgery malpractice.

Carol Wilson slipped and fell in a hotel bathtub, breaking her back, because the hotel's shower was not equipped with a slip-resistant bathmat, slip-resistant surface or a safety bar. Apparently, Sheraton had received a number of complaints about slippery bath tubs before Ms. Wilson was injured. Due to the hotel's negligence, in allowing their tubs to remain slippery, eight other guests were seriously injured from slipping and falling in the five months before her fall. In fact, one of the other injured victims was knocked unconscious by the fall. Ultimately, the Sheraton admitted that for the five months before her fall, 200 hotel bathtubs were unsafe yet they continued to rent the rooms. The typical cost of a slip-resistant bath mat is only $7.00.

The jury's verdict included $100,000.00 in punitive damages, specifically finding that the Sheraton acted willfully and wantonly and with reckless disregard to the safety of others. The jury also awarded $55,418.23 for lost wages and medical expenses, $50,000.00 for physical impairment, and $35,000.00 for pain and suffering.

In Florida, punitive damages are available in civil cases and are determined by Florida Statute Section 768.72. They are permitted only upon proving evidence that would provide a reasonable basis for recovery of such damages. Discovery should be permitted to obtain evidence of conduct warranting punitive damages. Courts, however, are not permitted to allow the discovery of financial worth until the pleading concerning punitive damages is allowed. For a defendant to be legally liable for punitive damages in Florida, either a jury or judge would have to find that the defendant was personally guilty of intentional misconduct or gross negligence by clear and convincing evidence. "Intentional Misconduct" means that the defendant had actual knowledge the conduct was wrongful and a high probability that injury to the claimant would result and, despite knowing this, intentionally pursued the course of conduct, resulting in injury. In Florida, "Gross Negligence" means that the defendant's conduct is so reckless that it constitutes a conscious disregard to the safety or life of another. Florida supermarkets can be liable for the conduct of its employees when their employ's conduct meets certain criteria.

Our Miami lawyers were recently successful in obtaining a punitive damage claim against a Florida plastic surgeon and a general surgeon. Currently, we have pending a motion to amend a complaint to include punitive damages against a Florida anesthesiologist who performed a procedure on the wrong limb. Since this was a medical procedure that was not consented to, we view the actions of this doctor as intentional misconduct. In cases that involve intentional torts (like battery or wrong site surgeries), leave to add a claim against the tortfeasor or defendant should be liberally granted. Florida courts have consistently held that proof of malice necessary for a cause of action for an intentional tort is also sufficient evidence of malice on the part of the Defendant, to permit the jury to award punitive damages. See e.g. Ciamar Marcy, Inc. v. Monteiro Da Costa, 508 So. 2d 1282 (Fla. 3rd DCA 1987).

Judges and juries dislike medical malpractice cases in Florida especially if they deal with an elective cosmetic procedure or botched plastic surgery.

One would want to believe that in Miami or Fort Lauderdale, places where just about everyone and their mothers have undergone either a breast augmentation or tummy tuck, South Florida jurors and judges would be empathetic. However, that is simply not the case. After representing injured victims of botched plastic surgery in Florida for over 20 years, I believe that most potential jurors fall into one of two categories in how they perceive individuals who are bringing a claim for a botched plastic surgery. First, there are those who have themselves successfully undergone some form of elective plastic surgery and they tend to want to assess fault upon the patient for not going to a better doctor. In the alternative, If the potential juror hasn't had plastic surgery, they tend to believe that the injured patient is responsible for their own injury for not having been satisfied with their looks or being too lazy to go to a gym or diet. In other words, they blame the plaintiff for being "vain." Faced with either type of juror mentality, makes winning a plastic surgery malpractice law suit in Florida extremely difficult.

The typical doctor defense will spend hours going through the preoperative consent forms, that outline every possible complication from scarring, infection, bleeding or even death, to argue that the patient "assumed the risk."

I recommend that all patients take their own pre-op photographs to preserve the evidence of how they looked before to compare to their post-op results. This is especially important if the patient is considering undergoing multiple surgical procedures at one time. I also recommend that they bring all consent forms to a competent lawyer to read before signing.

I have sued dozens of plastic surgeons around the country and most defendants I have found are extraordinarily charming, sophisticated, articulate and seductive. After all, they are able to convince patients that they have the power to make them look younger and more attractive. They can often use those same talents and skills to seduce a jury.

Rarely do elective cosmetic surgeries take place in Florida hospitals. Most are performed in out-patient surgical centers pursuant to Stat re outpatient procedures-490-727.pdf However, when a hospital is involved, obtaining as much information about the quality of care at that institution before the surgery is critical. "Florida's Hospitals Have a Secret" is a recent article I authored on the Huffington Post that details the extent of legal protection Florida law provides both hospitals and the doctors; especially, in terms of how little information injured patients are entitled to obtain from Florida hospitals who have allegedly killed or injured a patient.

Our Florida patient injury lawyers believe that the best way to avoid being the victim of malpractice is to prevent it from ever occurring, by obtaining information about the risk associated with certain procedures as well as the level of care provided at various hospitals and surgical centers. However, as long as Florida's judges, juries and legislature continue to protect doctors and hospitals at the expense of the injured, patients will be at risk.

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