by

clock.jpgThe outside limit in Florida for suing for medical negligence is seven (7) years from the date of the incident or occurrence giving rise to the action. This time limit is set forth in Florida Statute 95.11(4)(b) and is known as the Statute of Repose.

Florida’s Statute of LImitations for medical malpractice, also part of 95.11(4)(b), is 2 years from the time the malpractice “is discovered, or should have been discovered with the exercise of due diligence; however, in no event shall the action be commenced later than 4 years from the date of the incident or occurrence out of which the cause of action accrued….”
Continue reading

by

people.jpgComparative Fault — see Florida Statute 768.81 –and the Open & Obvious Doctrine are legal concepts that play a role in many premises liability cases.

Under the principle of Comparative Fault, the jury is asked to apportion fault among the parties to a lawsuit, plaintiff and defendant(s), and others who may not even be parties to the lawsuit. The jury must also place a monetary value on the damage sustained by the plaintiff. These two findings make up what is known as the [jury’s] verdict. Interestingly, a jury verdict is not the same thing as a final judgment, issued by judges, and the final numbers between the two can be significantly different.

Here is a rudimentary example to demonstrate the interplay between verdicts and judgments, and illustrate the principal of comparative fault: Mr. Jones, while visiting a friend’s condominium complex, trips on a large crack in a poorly lit underground parking lot while walking into the building. He falls hard to the ground, landing on his chin and head, sustaining a severe laceration and a concussion. Fire Rescue is summoned and transports Mr. Jones to the hospital. The underground lot is owned by a condominium association that has hired a management company to maintain the premises. It is learned that the large crack has existed for years and has caused other accidents. Unable to settle out of court, Mr. Jones sues the condo association and the management company for negligence. The jury returns a verdict in the amount of $500,000, but apportions fault at 75% (condo. association/management company)/25% (Mr. Jones). Based on the concept of comparative fault, the final judgment for Mr. Jones will be $375,000, or 75% of the total damages found by the jury. (In most cases, the judge has much more to consider than simply performing basic math in reaching a final judgment.)

Until 1973, Florida applied the law of contributory fault in all negligence cases. Under this concept, the plaintiff would be completely barred from making any recovery if it was determined that he or she was at fault in any way, even only 1% at fault. In our example, this would mean that Mr. Jones, although only 25% at fault, would receive nothing for his injuries.
Continue reading

by

ATM.jpgDue to flawed record keeping, it is impossible to know with confidence how often violent crimes — murder, kidnapping, battery or robbery — are committed in Florida in conjunction with obtaining cash involuntarily from a victim’s ATM. Most law enforcement agencies do not maintain a separate category for ATM crime. Instead, it is listed in more general categories such as robbery, homicide, and sexual battery/rape. The Universal Crime Report (UCR) forms do not have a place to note that a forced ATM withdrawal has taken place.

Despite the lack of information, ATM-related crime is believed to be high. Put another way, ATM-related crime is foreseeable.

The foreseeability of a harmful event happening is an essential element of every personal injury case. For a defendant to be held accountable under civil tort law, the victim, or Plaintiff, must prevent evidence on the issue of foreseeability.

Crime statistics are a way of proving foreseeability in civil tort actions for injuries or death resulting from inadequate security or safety measures. See Holley v. Mt. Zion Terrace Apartments, Inc., 382 So. 2d 98 – Fla: Dist. Court of Appeals, 3rd Dist. 1980.
Continue reading

by

worker2.jpgThe only long term wage loss compensation available under Florida’s Workers’ Compensation system is permanent total disability (PTD). The benefit is defined in Florida Statute Section 440.15(1).

Unless the claimant sustains one of the scheduled injuries outlined in 440.15(1)(b), the only way to qualify for PTD is for a Claimant to “establish that he or she is not able to engage in at least sedentary employment, within a 50-mile radius of the employee’s residence.” See the paragraph below the scheduled injuries in 440.15(1)(b).

The determination is made after, not before, the claimant reaches maximum medical improvement (MMI) – defined in 440.02(10) as follows: “‘Date of maximum medical improvement'” means the date after which further recovery from, or lasting improvement to, an injury or disease can no longer reasonably be anticipated, based upon reasonable medical probability.”
Continue reading

by

calculator.jpgPeople hurt on the job can often bring damage claims against their employer under workers’ compensation and third parties responsible for causing the accident. Normally, workers’ compensation medical and lost wage benefits are provided to the injured worker before the third party case is resolved.

Florida Statute 768.76 provides that amounts owed by negligent third parties are offset by benefits injured persons receive from collateral sources. However, the offset does not apply to benefits that must be repaid. The right a source has to be repaid is known as subrogation.

Workers compensation insurance carriers have subrogation rights pursuant to Florida Statute 440.39.
Continue reading

by

alcohol.jpgAdults hosting house parties are well advised to be hyper vigilant in preventing alcohol or drugs from falling into the hands of minors. The negative consequences of failure, outlined in Florida Statute §856.015, can be substantial.

An adult who fails to keep a minor from possessing or consuming alcohol or drugs commits a second degree misdemeanor, punishable by a fine up to $500 and 60 days in prison. Where harm comes to a minor or others due to a violation of 856.015, the offense is a first degree misdemeanor, punishable by a fine up to $1000 and one year in jail.
Continue reading

by

maze.jpgMedical bills are a strong measure of injuries and future expenses. However, due to insurance and governmental (e.g., Medicare) discounts, bills are rarely paid in full. Where the medical provider is prohibited, by contract or law, from balance billing, Plaintiffs and Defendants contest which medical expenses, the full charges or the reduced payments, may be presented to the jury.

Plaintiffs argue that total charges give a full picture of their bodily injuries and future medical expenses. Defendants endeavor to limit admissibility to the discounted amounts. The outcome depends on who pays the bills.

Where the discounts are contractual write-downs from private insurance, the trial court should allow evidence of the total charges. In other words, Plaintiff may “board” all billed charges.

If a jury, in the face of discounted medical expenses, awards the Plaintiff the full medical expenses, doesn’t the Plaintiff derive a windfall? No. In Goble v. Frohman, 901 So.2d 830 (Fla. 2005), the Florida Supreme Court decided that such verdicts are to be reduced post-trial by the contractual discounts between the providers and private insurance company. Here is an example of how it works: if the discounted payment is $35,000 on total charges of $100,000, and the jury awards $ 100,000 for incurred medical expenses, the verdict will be reduced post-trial by $ 65,000 for a final judgment of $ 35,000.

This is fair. The jury, which does not hear about the discounted payment, is allowed to render its verdict based on relevant, probative evidence, while the judge, post-trial, adjusts the verdict so that the Defendant pays no more than was received by the medical providers.

This raises another question. If insurance has paid and the patient therefor owes the provider nothing, what is fair about a final judgment which awards the Plaintiff the amount paid by the insurance company? Simple. The Plaintiff must repay the money to the insurance company.

In essence, then, the most important aspect of boarding full medicals is for the jury to award the correct amount for pain and suffering damages and future medical expenses.
Continue reading

by

legal document.jpgIt is customary in Florida for those wishing to settle workers’ compensation cases to be required to execute a voluntary resignation document. Typical resignation language will make it virtually impossible for the former employee to maintain a viable claim for unemployment compensation benefits. To avoid this consequence, language must be added to the effect that entitlement to unemployment compensation is not being waived,

This action led to a positive outcome for the applicant in Sullivan v. Florida Unemployment Appeals Commission (1st DCA; opinion filed May 15, 2012). In its initial form, the resignation language associated with the workers’ compensation settlement was silent on the issue of unemployment compensation. Ms. Sullivan refused to sign the form. Accordingly, her lawyer added the following language:

“Employer/Carrier will not contest Claimant’s application or request for unemployment benefits.”

The employer did not contest the language, allowing it to become part of the overall workers’ compensation settlement agreement. Thereafter, Ms. Sullivan applied for UC benefits. She was denied at the hearing level and by the Unemployment Compensation Appeals Commission. However, the 1st DCA reversed those holdings, siding, instead, with Ms. Sullivan.

The reasoning behind the holding in Sullivan is set forth in Rodriguez v. Florida Unemployment Appeals Commission, 851 So. 2d 247 (Fla. 3d DCA 2003):

Employers are to be held accountable for their actions and representations to employees, particularly when modifying terms of at-will employment and when seeking participation in voluntary layoffs, buyouts or other company initiated programs. Here [the claimant] received verbal and written representations from [the employer] about the uncertainty of her job and of a buyout package with a list of benefits, as well as assurances of eligibility for other benefits, i.e., unemployment compensation. These assurances by [the employer] were not wrongful but were designed to encourage or induce the acceptance of the voluntary buyout. Given the circumstances here and the liberal purpose of the statute authorizing unemployment benefits, the requirement of “good cause attributable to the employer” was satisfied.

Continue reading

by

law books.jpgSecuring the payment of medical expenses is one of the main responsibilities of Personal Injury attorneys. At trial, Plaintiffs must prove (1) that charges are for treatment for injuries at issue in a lawsuit, as opposed to treatment for some other condition, and (2) the charges are reasonable and necessary. See Garrett v. Morris Kirschman & Co., Inc., 336 So.2d 566 (Fla. 1976).

Interestingly, while part (1) requires expert medical testimony, part (2) is established from the Plaintiff’s perspective, rather than from the perspective of a medical expert. See, Id., and Albertson’s, Inc. v. Brady, 475 So.2d 986 (Fla. 2d DCA 1985), rev. denied, 486 So.2d 595 (Fla. 1986).
Continue reading

by

crushed vehicle.jpgRear-end crashes represent nearly 25% of all roadway motor vehicle accidents. The natural inclination is to blame the driver of the approaching vehicle, the one that slammed into the rear of the other vehicle. Florida law supports this notion by creating a presumption of fault against the approaching driver.

Law enforcement, the courts, and personal injury lawyers are well-advised to think twice before jumping to this conclusion. They must understand that attentive drivers sometimes crash their vehicles into the rear-end of leading or stationary vehicles in broad daylight through no fault of their own.

Our firm and Domnick & Shevin PL are involved in a lawsuit against a motor coach company and its driver for a client who drove his employer’s passenger bus into the rear of the motor coach. The motor coach was stopped in a through lane without any traffic forcing it to stop or slow down. It did not have a flat tire, run out of gas, or have a mechanical emergency. Our client, who approached from behind in the same lane, had a clear view of the stopped vehicle beginning from approximately 1000 feet away. There were no cars in front of him in any of the approaching traffic lanes. Our client noticed the motor coach from a distance off, but it wasn’t until he was too close to avoid the accident that he perceived it was stopped. Our client sustained catastrophic injuries.

We have hired numerous experts to explain various elements of the case. An engineer will discuss speeds, distances and things of that nature. A trucking expert will describe industry standards and safety issues. Neither of these experts, nor the many doctors who will talk about our client’s horrible injuries and the economist, who will calculate past and future economic damages, are qualified to explain the phenomenon of why a trailing driver can plow into the rear of another vehicle without being at fault.

That is the job of a human factors expert. We have hired one of the best.
Continue reading

Contact Information
Main Office
9999 NE 2nd Ave, #304
Miami Shores, FL 33138
Phone: 305-758-4900
Fax: 305-758-4949
Email: jgale@jeffgalelaw.com
Palm Beach Gardens
2401 PGA Blvd #140
Palm Beach Gardens, FL 33410
Phone: 305-758-4900
Fax: 305-758-4949
Email: jgale@jeffgalelaw.com

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

Please do not include any confidential or sensitive information in a contact form, text message, or voicemail. The contact form sends information by non-encrypted email, which is not secure. Submitting a contact form, sending a text message, making a phone call, or leaving a voicemail does not create an attorney-client relationship.

Copyright © 2015 – 2025, Jeffrey P. Gale, P.A.
JUSTIA Law Firm Blog Design