Articles Posted in Miscellaneous

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Florida Statute 366.15 addresses the issue of medical dependence on electric-powered equipment and public utility companies. Unfortunately, the statute appears to be a toothless tiger.

Many Floridians who live in private residences are dependent on electric-powered equipment that must be operated continuously to avoid the loss of life or immediate hospitalization. Not infrequently, the money to pay for the electric service to power the life support equipment is not always readily available.

One might conclude from reading the statute that public utility companies must overcome numerous procedural hurdles in order to disconnect service to individuals in need of “medically essential” electric-powered equipment. For example, the statute speaks in terms of prior notice to the customer and providing information regarding funding sources to pay electric bills. However, the last paragraph of the statute, which provides as follows, sends a somewhat different message: (11) Nothing in this act shall form the basis for any cause of action against a public utility. Failure to comply with any obligation created by this act does not constitute evidence of negligence on the part of the public utility.
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Crime victims may be eligible for up to $25,000 ($50,000 for catastrophic injury) in compensation benefits from the State of Florida’s Victim Compensation Program. (Qualifying crimes include assault, DUI and hit-and-run accidents, rape, and murder.) Unfortunately, the beaurocratic maze that must be navigated to receive benefits, especially during times of heightened stress, often proves overly daunting for victims. Law firms versed in handling these matters can assist victims in obtaining compensation.

The benefits obtainable through the Victim Compensation Program resemble those available to individuals involved in personal injury cases. Therefore, an experienced personal injury lawyer will have a good understanding of how to meet the requirements of the Victim Compensation Program. In some instances, the lawyer can pursue a personal injury claim and a claim for Victim Compensation Program benefits simultaneously.
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It is unlawful for any person whose driver’s license has been suspended to operate a vehicle upon the streets and highways of Florida. Florida Statute 322.34. In addition, any vehicle owner who knowingly allows a person with a suspended license to operate his/her vehicle in Florida commits a misdemeanor of the second degree. 322.36. (Since Florida Statute 322.38, which addresses the minimum duty owed by rental agencies, uses the word “person” in reference to an owner who rents his/her vehicle, the use of the word “person” in 322.36 makes its provisions applicable to rental agencies.)

We are currently involved in litigation against Enterprise Leasing Company of Florida, LLC (Miami-Dade County case number 08-80070 CA 23), for catastrophic injuries caused by the renter of one of its vehicles in a highway roll-over accident. When Enterprise allowed the renter to drive its vehicle off its lot, his Florida license was under suspension for moving violations.

Enterprise’s defense is that it did not know or have a duty to determine if the renter’s license was suspended. Interestingly, an Enterprise representative testified in deposition that, had the company known [of the suspension], it would have been negligence on its part to entrust its vehicle to the renter. We have asserted that Enterprise had a duty to limit the risk to our client, which included making an effort to determine, at a minimum, the status of its renter’s Florida license. In a Motion for Summary Judgment, Enterprise asked the court to decide the issue. The court denied Enterprise’s motion, allowing us to proceed with our case.

Since 1999, Florida driver license status records have been searchable through the Internet by DL number or name/date-of-birth/sex, making status information available in a matter of seconds. Enterprise did not perform this simple and fast search in our case. Had it done so, it would have learned of the suspended license, which was registered in the database since 2006, some two years before our accident. (By the way, Enterprise’s customer, who did not have a valid credit card, paid cash to rent the vehicle.)

Was this a case of willful ignorance to avoid the chance of turning away a paying customer?

For many years, numerous car rental companies had been using databases to screen driving records of potential renters. See articles #1 and #2. (It is estimated that 6-10% of potential renters are denied by the screening process. The reasons for the denials vary from suspended licenses to poor driving records.) However, among the major car rental companies, Enterprise was an exception to that policy.

Sadly, the pack may soon, if not already, be following Enterprise’s lead.
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Allergan, Inc., the maker of wrinkle-smooting Botox, has agreed to pay $600 million to settle a year-long federal investigation into its marketing of the top-selling, botulin-based drug. The investigation, involving charges of paying kickbacks to induce physicians to inject Botox for off-label uses and teaching doctors how to bill for off-label uses, including coaching doctors how to miscode Botox claims leading to millions of dollars of false claims being submitted to federal and state programs, was started by a whistle-blower complaint. The Justice Department says the company will plead guilty of one misdemeanor charge of “misbranding.” (Allergen also reached an agreement with the Department of Health and Human Services’ Office of the Inspector General that requires the company to submit compliance reports, and to post on its website any payments to doctors, such as honoria, travel or lodging.”

Manufacturers are prohibited from promoting drugs for unapproved, or “off-label,” uses. Botox is approved by the F.D.A. to treat uncontrolled blinking; crossed eyes; certain neck muscle spasms; excessive underarm sweating; and stiffness associated with muscle spasticity in the elbows and hands. It also is approved for cosmetic purposes — to smooth lines between the eyebrows – and two weeks ago, ironically, it was approved as a treatment to prevent chronic migraine headaches, one of the charges for which it agreed to pay the $600 million.

The misuse of prescription drugs, both purposely and through negligence, happens frequently and often has dire consequences. If you or a loved one may be the victim of such misuse, please contact our office for a free, confidential consultation to discuss your case.
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Annually, well more than one million Americans have refractive surgery to correct their vision. Refractive surgery is any type of surgery that alters the refractive power of the eye. Lasik is the most well known of the procedures, but others are available, including Lasek, PRK, and Epi-Lasik. Most of the refractive surgeries rely on laser, but Conductive Keratoplasty (CK) uses radio wave energy.

Unfortunately, as common as the procedures have become, preventable injuries do occur. Most of the injuries can be divided into five major categories:

  • Contraindications for surgery
  • Surgeon error
  • Failure to treat postoperative complications in a timely and proper manner
  • Failure to obtain informed consent
  • Equipment malfunction

Contraindications for Refractive Surgery
Some patients are poor candidates for refractive surgery. Eye diseases, such as keratoconus, corneal dystropies, or retinal detachments, are the most common contraindications for these patients.

A surgeon is supposed to evaluate the patient prior to surgery. A policy statement from the American Academy of Ophthalmology (AA0) explains the reasoning for the surgeon evaluation:

“The best interest of the preoperative patient is served by preoperative evaluation by the operating surgeon. Ethical and qualify of care standards are met only if the individual patient’s needs are addressed…. It is the ophthalmologist’s responsibility to provide quality control, prospectively, in the preoperative assessment.”

Unfortunately, the preoperative evaluation by the surgeon is not always done. This increases the chances that contraindications are missed. The consequences of performing surgery with contraindications can be extremely severe, including the need for corneal transplants.

Other reasons for negative surgical outcomes include poor skills of technicians responsible for reading measurements and surgeons taking unnecessary chances.

Surgeon Error
The surgeon’s inadequate technique or skills may result in poor alignment of the corneal flap or cutting into the cornea. In some instances, the wrong prescription is programmed into the laser.
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Much has been reported lately about Florida Republican gubenatorial candidate Rick Scott invoking 75 times his Fifth Amendment right against self-incrimination in a civil case brought by a Nevada company.

The Fifth Amendment to the United States Constitution was ratified in 1791. It provides as follows:

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

The Fifth Amendment can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory; and it protects against any disclosures which the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used. Kastigar v. U.S., 406 U.S. 441 (1972). Accordingly, assuming that Mr. Scott reasonably believed his statements could be used against him in a criminal prosecution, he had the constitutional right those 75 times to refuse to answer questions put to him under oath.
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Federal law requires all cars sold [to the public] in the United States to meet the Federal Motor Vehicle Safety Standards (FMVSS). It sounds good, but it’s not.

The FMVSS are minimum standards for vehicle safety. Many of the standards applicable today were issued in the 1960s and 1970s, cover only a limited number of car safety and performance aspects, and manufacturers are allowed to self-cerfity compliance (in contrast to the approval of new drugs by the FDA, which has demanding requirements before drugs can be put into the hands of consumers), while the creation of better standards is subject to political pressure, with rule making through the National Highway Traffic Safety Administration (NHTSA) being a quasi-legislative process. Changes, if any, come in tiny increments at a snail’s pace.

In concept, market forces were expected to encourage manufacturers to produce vehicles that exceeded the minimum safety standards. Sadly, this has not occurred with enough frequency and consistency to be considered a success story. Rather than battle for a competitive advantage, most manufacturers settle for the least common denominator in safety and performance.
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“Umbrella” insurance is a relatively inexpensive way to obtain significant increases in important insurance policy coverage limits.

Consumers are familiar with motor vehicle and homeowners insurance policies. They are separate policies covering separate and distinct risks. Each has its own policy limits and premium charge.

Umbrella insurance is a distinct coverage that is purchased as a stand alone package to supplement other, separate policies, such as the the motor vehicle and homeowners examples mentioned above.

Example: A motor vehicle policy may provide bodily injury coverage of $10,000 or even $100,000. Separately, the homeowners policy (similar renters insurance is also available) may provide the same coverage limit.

Bodily injury coverage pays for personal injuries and death caused by the insured’s negligence. Although $100,000 in coverage is enough in most cases, in some cases it is not nearly enough. Some serious injuries command $1,000,000 and more in damages, while wrongful death damages can reach into the multiple millions. In these cases, the protection afforded by the primary policy is insufficient. This is where umbrella coverage comes into play.
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The remedies available under Florida’s workers’ compensation system and its personal injury laws are significantly different in many ways. The most important difference may be that workers’ compensation does not compensate for pain and suffering (non-economic damages). For this reason, many people wish to pursue their remedy under the personal injury system.

Easier said than done….

The workers’ compensation system is essentially a no-fault system. Once eligibility is established, the benefits are supposed to begin. Establishing eligibility is usually as simple as showing that the accident occurred in the course and scope of employment. Fault is rarely an issue.

It is because of this important element that injured workers have lost the right to be compensated for pain and suffering. This element also accounts for the employer having almost absolute immunity from lawsuits seeking damages under the personal injury system.

The language granting the immunity is contained in Florida Statute 440.11(1). The exceptions [to the immunity] are contained in Sections 440.11(1)(a) & (b).

Exception (1)(a) applies to employers who have failed to secure workers’ compensation insurance or its statutory equivalent. This employer can be sued for workers’ compensation benefits or personal injury damages under traditional theories of negligence. The successful negligence litigant may be awarded compensation for pain and suffering. (Most employers are properly covered. Unfortunately, the ones who are not, commonly do not have enough money to provide workers’ compensation benefits or pay personal injury damages.)
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Personal Injury Protection (PIP) (also known as No-Fault Insurance) is one of the few coverages in Florida that is mandatory in most motor vehicle insurance policies. (See this blog about “Full Coverage.”) Its primary function is to pay the medical expenses and lost wages of those individuals injured in motor vehicle accidents. (Which individuals are covered is another subject and beyond the scope of this blog.) However, unbeknownst to many lawyers and lay people alike, the PIP statute also provides for the payment of “Death Benefits.” (See Florida Statute Section 627.736(1)(c) (2008).)

The maximum dollar amount of coverage available under PIP is $10,000. Of this $10,000, only $5,000 is available for death benefits under Section 627.736(1)(c).
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