Litigation

April 10, 2010

Hepatitis C Infection from Contaminated Miami VA Colonoscopy Equipment Results in Lawsuits

Our law firm was recently hired by a military veteran who claims to have been infected with the liver disease Hepatitis C by equipment used to perform colonoscopies at the Veterans Administration (VA) hospital in Miami, Florida.

Last year the VA acknowledged contamination issues with endoscopic equipment used to perform colonoscopies in its Miami facility between 2004 and 2009. It has notified more than 3000 patients of the potential for infection and recommended testing, one of whom is our client. To her great disappointment, she tested positive for Hepatitis C.

Although the VA admits to the contamination problem, it does not so readily admit to it being the cause of infection in every veteran who has been tested positive for the virus (or HIV; there have been reported cases of HIV infection). Because Hepatitis C, among serious and sometimes fatal medical conditions, is relatively easy to contract, the refusal of the VA to take responsibility for every case of infection is understandable. (However, shouldn’t there be a rebutable presumption in favor of the veterans that the virus was caused by the VA?)

We expect the government to conduct comprehensive discovery in our case in an effort to establish other risk factors, such as intravenous drug use, blood transfusions, promiscuous sex, etc. From past experience, we know that the government’s lawyers and even the FBI will attempt to look into every relevant aspect of our client’s history for evidence to blame for the infecton other than its contaminated equipment.
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March 23, 2010

Tort “Deform” – My Opinion

by Jeffrey P. Gale, P.A.

Along with the right to vote, a free and vigorous jury system is a key element in the ability of Americans to control the type of society in which they live. Efforts by state and federal politicians at placing arbitrary caps on the amount of damages available to parties in civil cases is a direct attack on the jury system, and thus the power of the citizenry to control their own society.

Juries should be allowed to award the full measure of damages justified by the facts of each case after engaging in thoughtful deliberations. For the most part, their verdicts are dead-on appropriate. To argue otherwise is to ignore a large body of statistical evidence and question the ability of everyday people to judge wisely. Moreover, in those rare instances where a jury decides incorrectly, the aggrieved parties, be they the plaintiffs or the defendants, have available to them many tools (e.g. retrial; appeal; etc.) to correct the error.

Arbitrary damage award caps provide immunity from full accountability and should be opposed. Our civil jury system works exceedingly well and should remain free of arbitrary constraints.
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March 20, 2010

Florida’s 2008 PIP Law Simplifies Out-of-Pocket Medical Expenses Determination

by Jeffrey P. Gale, P.A.

Unlike prior PIP statutes that applied the “usual and customary” standard to determine allowable charges for medical services, Florida’s 2008 version (627.736), mostly mandates that allowable charges are 200% of prospective payments for the same services under Medicare Parts A & B. (Main exceptions: emergency transportation and emergency hospital services.)

For the most part, the Medicare tie-in reduces the amounts payable to medical providers, and because the PIP statute also explicity prohibits medical providers from balance billing beyond the 20% remaining after PIP’s 80% payment of allowable charges (627.736(5)(a)5.), the Plaintiff’s (patient) out-of-pocket medical expenses are likewise reduced. No longer may a medical provider seek full reimbursement from the patient for charges unpaid after the receipt of PIP payments. Doing so under the 2008 PIP statute is an actionable offense.
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March 14, 2010

“IME,” “Independent Medical Examination,” & “Peer Review” – Says Who? (Florida Law)

by Jeffrey P. Gale, P.A.

Florida Statues may allow PIP carriers to conduct medical examinations and perform paper reviews, but no authority, including the statute itself, grants PIP carriers license to reference those procedures as an “IME,” “Independent Medical Examination,” or a “Peer Review.” In short, PIP carriers have created the terms out of whole cloth to mislead juries.

The doctors are not independent or conducting peer reviews. (Merriam-Webster Dictionary’s only definition of “peer review” is: a process by which something proposed (as for research or publication) is evaluated by a group of experts in the appropriate field.) They are hired by the defense and paid by the defense. If the jury hears that doctors are “independent” or a “Peer Review,” the jury may be confused into believing or thinking the doctors were appointed by the court, a governing body, or with the approval of the Plaintiff or the Plaintiff’s attorney.

When preparing for trial, the Plaintiff’s attorney should consider moving the court for an In Limine order preventing the insurance company from perpetuating the falsehood.
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March 11, 2010

Florida’s Dangerous Instrumentality Doctrine & The Graves Amendment

by Jeffrey P. Gale, P.A.

A well-established common law principle in Florida is that motor vehicles are “dangerous instrumentalities.” Southern Cotton Oil Co. v. Anderson, 86 So. 629 (Fla. 1920). In 1941, the Florida Supreme Court held that because the use of a dangerous instrumentality involves such a high degree of risk of serious injury or death, whoever deals in such instrumentalities must exercise the “highest degree of care.” Skinner v. Ochiltree, 5 So.2d 605 (1941). This decree is consistent with the court’s opinion that “as the risk grows greater, so does the duty, because the risk to be perceived defines the duty that must be undertaken.” McCain v. Florida Power Corp., 593 So.2d 500 (Fla. 1992).

Until 2005, this longstanding and reasonable principle of law applied to both individual private vehicle owners and billion dollar rental car agencies alike. However, with the passage into law of the Graves Amendment, the U.S. Congress and the Bush Administration (George W. Bush), allowed rental car agencies across the country to escape liability for serious personal injuries caused by their rental vehicles.

The constitutionality of the law is being challenged in courts across the nation. One of the main arguments in opposition to the federal law is that the individual states should be allowed to create laws that effect its own residents. The constitutionality issue will ultimately be decided by the U.S. Supreme Court.

March 10, 2010

Florida Mediation – Meaning of “Full Authority”

by Jeffrey P. Gale, P.A.

FRCP 1.720 and most court orders require parties to appear at mediation with “full authority” to settle without further consultation. See also Carbino v. Ward, 801 So.2d 1028 (Fla. 5th DCA 2001) and Physicians Protective Trust Fund v. Overman, 636 So.2d 827 (Fla. 5th DCA 1994).

A hypothetical personal injury case will be used here to illustrate the importance and meaning of the law:
The plaintiff’s last demand before mediation was $500,000, while the defendant has valued the case at $75,000. For the defendant to be in compliance with Rule 1.720, its representative must attend mediation with the authority to settle for $500,000 (or policy limits, whichever is less). This does not mean that the defendant must accept plaintiff’s demand. All it means is that the representative must have the authority to pay $500,000 without further consultation. (The rule is less clear as it relates to plaintiffs, especially when the defendant has not made a pre-mediation offer, but it is arguable that the plaintiff or its representative must be able to accept any proposal made by the defendant without further consultation.)

On its face, the rule may seem silly. However, it makes sense. The purpose of the rule is to encourage and promote the settlement of cases. The rule requires representatives to have flexibility to adjust to circumstances as they arise during mediation, even if it does not require the actual exercise of that flexibility. Without having the requisite “full authority”, a representative is unable to adjust his/her position during mediation. (Examples of circumstances that sometimes motivate parties to alter their views during mediation are endless. Some of the more common examples include: the presentation of explosive eyewitness affidavits; the surprise appearance of a newly-hired heavy-hitting top-gun trial lawyer in place of an inexperienced attorney; the surfacing of key missing documents; new test results; et cetera.)
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February 25, 2010

Deposition Rules 101 for Non-Lawyers

by Jeffrey P. Gale, P.A.

Parties and witnesses involved in legal proceedings should follow these basic rules when being deposed:

Listen carefully and allow the attorney to complete each question before responding;
If you do not understand a question, ask the attorney to repeat the question or rephrase it;
Answer only the question asked and do so in simple and succint terms. For example, if the question calls for a simple yes or no response, answer accordingly;
If you know the answer to a question, do not be cute and answer, ‘I do not remember’ or something along those lines. The correct answer may be important and to answer that you don’t remember, makes it more difficult to give the correct testimony at a later date;
If an explanation is required for the response to be accurate, give it, but keep it short and simple and on point;
Do not be argumentative or defensive in your responses; and
Tell the truth.