Personal Injury

April 26, 2017

Jeffrey P. Gale, P.A. // Striking the Proposal for Settlement in Florida Civil Cases

Forty plus years of misleading Big Business propaganda has left the American public with the false impression that bringing a personal injury lawsuit comes without risk to the plaintiff. People have come to believe, sometimes with righteous indignation, that most lawsuits are frivolous and result in the recovery of undeserved compensation without any negative consequences for falling short of the mark.

The truth tells a different story.

From defense attorneys to trial judges to deeply cynical juries to courts of appeal and rules and statutes, Plaintiffs seeking their day in court with the simple aim of being made whole for being wronged face a host of hazards and hurdles enough to challenge the courage, strength, and fortitude of the toughest among us.

August 7, 2016

Jeffrey P. Gale, P.A. // The Last Clear Chance Doctrine in Florida Personal Injury Cases

by Jeffrey P. Gale, P.A.

In response to a Complaint we recently filed involving a serious crash on Florida’s Turnpike, the Defendant asserted as an affirmative defense that our client, the Plaintiff, should not recover because she had the “last clear chance” to avoid the accident.

In the many personal injury cases our firm has handled, this is the first time we have had this doctrine asserted. We had to do legal research to understand, what, if anything, it meant in our case. What we learned is that the doctrine has not been applicable in Florida personal injury cases since 1973. Moreover, when it did apply years ago it was always used by Plaintiffs against Defendants, not by Defendants against Plaintiffs. Hence, the affirmative defense in our case is hogwash.

Prior to the Florida Supreme Court’s holding in Hoffman v. Jones, 280 So.2d 431 (Fla., 1973), Florida was a contributory negligence jurisdiction. Hoffman turned Florida into a comparative negligence (or fault) jurisdiction.

May 14, 2016

Jeffrey P. Gale, P.A. // Thoughts on Maximizing Florida Workplace Accident Recoveries

by Jeffrey P. Gale, P.A.

While a recent Florida Supreme Court decision has leveled the playing field for injured workers in workers’ compensation cases — read Jeffrey P. Gale, P.A. // Another Jeb Bush Law Bites the Dust — a better remedy can sometimes be achieved through the civil justice system under negligence law principles.

Florida Statute 440.11 immunizes most employers and fellow-employees from being sued for simple negligence, limiting the remedies available to injured workers to those outlined in Chapter 440, Florida Statutes, Florida’s body of workers’ compensation laws.

‘”[S]imple negligence is that course of conduct which a reasonable and prudent man would know might possibly result in injury to persons . . ..”‘ Carraway v. Revell, 116 So. 2d 16, 22 (Fla. 1959) (quoting Bridges v. Speer, 79 So. 2d 679, 682 (Fla. 1955)).

The two jurisprudential systems, negligence and workers’ compensation, provide very different remedies to injured victims. One of the main differences is that the workers’ compensation system does not compensate for pain and suffering, while the negligence system does. (No Compensation for Pain & Suffering Under Florida’s Workers’ Compensation System.)

Chapter 440 is a no fault system for providing benefits. It was designed to assure “the quick and efficient delivery of disability and medical benefits to an injured worker.” § 440.015, Fla. Stat. (2009). Even so, its shortcomings are many. Read these blogs:

In spite of these drawbacks, Florida Statute 440.11 usually bars other options.
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February 28, 2016

Jeffrey P. Gale, P.A. // Florida’s Workers’ Compensation Immunity

by Jeffrey P. Gale, P.A.

The day after Jeb Bush suspended his run for the Republican presidential nomination, I read a quote in the Miami Herald from a South Carolina voter expressing dismay because she believed Bush was a good man who cared about disabled people. My immediate thought was, this woman does not know Jeb Bush … or at least the Jeb Bush who governed the state of Florida for eight years from 1999 to 2007. As Florida’s governor his policies were anything but sympathetic to disabled people.

Clear examples of his uncaring policies are contained throughout Chapter 440 of Florida’s Statutes, the body of laws that govern the state’s workers’ compensation system. At every opportunity, Mr. Bush pushed to weaken the rights and protections afforded injured workers.

This blog focuses on one example, workers’ compensation immunity.

February 11, 2016

Jeffrey P. Gale, P.A. // Florida Personal Injury Cases and Hospital Price Gouging

by Jeffrey P. Gale, P.A.

Price gouging for medical services is the scourge of personal injury cases. Hospitals are the worst offenders.

By ambulance from the accident scene to admissions for surgery, accident victims wind up in hospitals. The hospital charges are always staggering.

The charges are phony, having no relationship to either costs or value. Average pricing at Florida hospitals is a minimum of 500 percent of Medicare allowable amounts (which amounts to roughly three to four times more than hospitals negotiate as reasonable rates with commercial health insurers).

The gouging is especially problematic in personal injury cases for the uninsured and those with large deductibles or unpaid charges. Large outstanding balances can stand in the way of resolving cases involving low policy limits or of questionable value because of causation issues.

November 11, 2015

Jeffrey P. Gale, P.A. // Florida Workers’ Compensation Backpay for Undocumented Aliens

by Jeffrey P. Gale, P.A.

The 1986 Immigration Reform and Control Act (IRCA) prohibits the employment of illegal aliens in the United States. See Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 147, 122 S.Ct. 1275, 152 L.Ed.2d 271 (2002). To accomplish this goal, the IRCA requires employers to verify the identity and eligibility of all new hires by examining specified documents, including social security account number cards, before they commence work. See generally § 1324a(b); see also Hoffman, 535 U.S. 137 at 148, 122 S.Ct. 1275.

Workers lose wages for various reasons. In Hoffman, for example, the employee was wrongfully terminated for engaging in union activities. More frequently, wages are lost because of work related injuries.

September 26, 2015

Jeffrey P. Gale, P.A. // Virtually Impossible in Florida to Overcome Workers’ Compensation Immunity (440.11)

by Jeffrey P. Gale, P.A.

Florida’s workers’ compensation system was created, in 1935, with the goal of providing benefits to injured workers without the delay of having to prove the accident was caused by the employer’s negligence. In exchange for this no-fault system, employers were granted immunity from being liable for negligence.

The system, however, did not afford absolute immunity. There was a time when employees who were able to demonstrate that an employer engaged in conduct which is substantially certain to result in injury or death, could pursue a civil remedy. Turner v. PCR, Inc., 754 So. 2d 683 (Fla. 2000).

While difficult, overcoming workers’ compensation immunity by establishing substantial certainty was within reach.

In 2003, Governor Jeb Bush and the Florida Legislature put the chance of overcoming workers’ compensation immunity out of reach. New measures, in the form of Florida Statute 440.11, were instituted to make overcoming employer immunity virtually impossible.

August 31, 2015

Jeffrey P. Gale, P.A. // Burden on Defendant to Prove Entitlement to Offset

by Jeffrey P. Gale, P.A.

Personal injury plaintiffs and defendants battle over past and future damages. One frequent battleground concerns the amount a plaintiff should be awarded for future medical expenses.

Not infrequently, plaintiffs have sources such as health insurance, workers’ compensation, PIP, Med Pay, Medicaid, and Medicare to cover some or all of their future medical expenses. Almost always, these sources pay less than the usual and customary rates charged by most medical providers. Moreover, by accepting payments from these sources, medical providers are barred, in most instances, from balance billing beyond a small copay.

August 30, 2015

Jeffrey P. Gale, P.A. // Future Damages Not Offset by Parental Payments

by Jeffrey P. Gale, P.A.

Florida’s civil justice system allows accident victims to seek damages from those alleged to be at fault. Damages awardable fall into two broad categories: Economic and non-economic.

Economic damages include medical expenses (past and future), past lost income, and the loss of earning capacity in the future. In some instances, Florida law allows these economic damages to be offset, or reduced, by or to the amount the victim received from other sources for the same loss. See §786.76 Florida Statutes and Florida Standard Jury Instruction 501.8.

August 27, 2015

Jeffrey P. Gale, P.A. // Avoid Limiting Tavern Owner Liability to Dram Shop Law

by Jeffrey P. Gale, P.A.

Floridians, like residents in every state, are acutely aware “of the terrible toll taken, both in personal injuries and property damage, by drivers who mix alcohol and gasoline,” Ontiveros v. Borak, 136 Ariz. 500, 667 P.2d 200, 205 (1983). While many of the culprits receive their intoxicating fuel from bars and restaurants, the legal standard for holding establishments liable for vehicle crashes caused by their patrons is exceedingly high. §768.125 Florida Statutes, Florida’s Dram Shop statute, provides the standard:

Liability for injury or damage resulting from intoxication.—A person who sells or furnishes alcoholic beverages to a person of lawful drinking age shall not thereby become liable for injury or damage caused by or resulting from the intoxication of such person, except that a person who willfully and unlawfully sells or furnishes alcoholic beverages to a person who is not of lawful drinking age or who knowingly serves a person habitually addicted to the use of any or all alcoholic beverages may become liable for injury or damage caused by or resulting from the intoxication of such minor or person.