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government cut2.jpgHurray for the Miami Heat. Boo (and shame on) Micky Arinson, the billionaire owner of the Heat.

Micky Arison also owns Carnival Corporation, the world’s largest cruise operator. While the company operates many of its ships from American ports, enjoying the laws and protections only America can afford, it hides behind a labyrinth of one-sided procedures and antiquated laws that effectively limit the ability of its passengers to be fairly compensated for serious losses suffered on the high seas, including the most serious loss of all, the loss of life.

First, the procedural issues:

  • Pursuant to the passengers’ ticket, passengers who are injured on cruise ships operated by Carnival, Celebrity, Norwegian, Costa, or Royal Caribbean are required to bring claims in Federal Court in South Florida.
  • Within six months of an accident, injured passengers must submit a detalied letter to the defendant describing the accident. Failure to do this may bar further action by the victim.
  • A one-year statute of limitations. In other words, a lawsuit must be brought within one year of the accident.
  • The victim must travel to Miami to be deposed. In addition, the defendant has the right to perform a medical examination on the victim in Miami, and the mediation and the trial take place in Miami. These venue issues can present significant hardships to the plaintiff, who usually resides in another state or another country altogether.

Perhaps the greatest affront is the limited recovery afforded survivors of loved ones who die on the high seas as a result of negligence occurring onboard a ship. This limitation is prescribed by the Death on the High Seas Act (DOHSA). Where a plaintiff dies on the high seas beyond a marine league [i.e., three nautical miles] from the shore of any State, or the District of Columbia, or the Territories or dependencies of the United States, the survivors of the decedent are limited to pecuniary losses – essentially related medical bills and funeral expenses. Non-economic damages such as pain and suffering, loss of society, services and comfort of spouse, parent or child cannot be claimed. (Contrast these limits to Florida’s Wrongful Death Act, which affords certain survivors the right to recover these damages.)
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airbag.jpgInflating airbags can cause serious harm or death. The damage occurs when the passenger’s head is struck by the airbag, which can travel at speeds up to 200 mph, before it has fully inflated.

A vehicle’s “occupant protection system” (OPS) consists of airbags, belt/shoulder restraints, and seat tracks. If the system is designed properly, occupants should not be harmed by deploying airbags. Instead of the head being struck by the airbag during deployment, the head should be cushioned by the fully deployed airbag. Two entirely different dynamics… and often the difference between life and death.

When a vehicle strikes an object, the human body continues to move forward at the pre-crash speed of the vehicle until it is restrained by a seatbelt/shoulder harness or comes into contact with the airbag, windshield, or instrument panel. The one factor common to all persons severely injured or killed by an airbag is that they are very close to the airbag at the time of deployment. A properly designed system prevents this from happening.

Seat tracking determines how far forward seats are able to be situated. If located too close to the airbag, the inflating airbag will impact the head before it has fully deployed. The solution to this problem is for manufacturers to limit how far forward seats can move on the track. When designing this aspect of the OPS, manufacturers must assume that the occupants will have their seats fully forward.

The other consideration to prevent occupants from being too close to airbags during deployment, is the seatbelt/shoulder harness system. Shoulder harness pre-tensioning should limit the body from moving forward into the deployment zone.
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Beware!!! These small, coin-sized batteries found in many home appliances and childrens’ toys can be hazardous and deadly. If swallowed, the consequences can be immediate and devastating.

Occassionally, a swallowed battery will pass through the intestine. More often, the batteries become lodged in the throat or intestine and can release hydroxide, resulting in chemical burns.

Incidents most often occur in children younger than four years old. Parents often are unaware that a child has swallowed the button battery, making diagnosis difficult. Symptoms include an upset stomach and fever. Sometimes there are no symptoms at all.

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Nationwide, roughly one in seven (13.8%) drivers are not covered by liability insurance and are therefore uninsured. Florida is tied in fourth place with Tennessee and Oklahoma at 24% with the highest percentage of uninsured drivers.

Part of Florida’s numbers are attributable to its motor vehicle insurance laws. Liability insurance is not required to operate a vehicle lawfully on Florida’s streets and highways. The coverage is optional and a premium will be charged to purchase it.

The only coverages that are required to obtain a vehicle registration and, thus, operate a vehicle lawfully, are Personal Injury Protection (PIP) and Property Damage – Liability. (However, in the event of an accident resulting in death or personal injury, if the uninsured motorcyclist or car/truck owner with only PIP/PD is charged with causing the accident, his/her drivers license and all vehicle registrations will be suspended. Sections 316.066(3)(a)1 and 324.051(2)(a) of Florida’s Statutes.) Neither coverage compensates the victim of an at-fault party’s negligence for personal injuries and economic losses.

Little can be done to prevent an accident caused by another person’s fault. However, safeguards can be taken to protect against the one in four chance of finding yourself without insurance coverage to compensate for serious personal injuries and economic losses. The answer is Uninsured Motorist/Underinsured Motorist Coverage. (Florida Statute 627.727.)
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Congressional Republicans are unrestrained hypocrits and ardent agents of America being a money-centered society over a people-centered society. The lure of big money trumps (pun intended) their lip service philosophy of limiting big government to empower the people.

H.R. 5, the so-called Help Efficient, Accessible, Low Cost, Timely Health Care (HEALTH) Act of 2011, is a terrible bill and is as anti-consumer and anti-victim as it gets. This bill would severely limit the ability of injured patients and their families to hold health care and medical products providers accountable. It would also limit remedies against for-profit nursing homes, insurance and pharmaceutical industries, manufacturers of medical devices, and even against doctors who commit intentional torts, such as sexual abuse.

To accomplish all of this, the federal law would preempt laws on the books in every state addressing the same issues.

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Permanent Total Disability (PTD) (440.15(1)) is the most valuable wage loss benefit available under Florida’s workers’ compensation system. Unlike Temporary Partial Disability (TPD) (440.15(4)) and Temporary Total Disability (TTD) (440.15(2)), monetary benefits that are available for only a short period of time, PTD can last for years and includes an annual supplemental increase equal to 3 percent of her or his weekly compensation rate.

The PTD standard has changed numerous times over the years. Until 1996, the standard was to meet a scheduled catastrophic injury, like total blindness or loss of limbs, or prove the inability to perform at least light duty work uninterruptedly on a full-time basis. In 1996, the light duty standard was replaced by the standard required to qualify for Social Security Disability (SSD) benefits, which the Florida Legislature believed was more demanding. In 2002, thanks to Governor Jeb Bush, the SSD standard was replaced by an even more stringent standard. Injured workers would be required to prove that they could not perform at least sedentary duty work on a part-time basis within a 50 mile radius of their homes. This standard prevented all but the most catastrophically injured workers from qualifying for PTD.

Because this standard proved so onerous… and unfair, the Florida Legislature was persuaded to eliminate the part-time element from the PTD requirement in its 2006 version of 440.15.

Pre-1996, one of the ways claimants proved entitlement to PTD benefits was by performing an exhaustive but unsuccessful job search. Because of the many variations in the standard since then, many workers’ compensation practitioners believed that this method no longer applied and abandoned it as a way of proving entitlement to PTD.

Thankfully, in Blake v. Merck & Co., 43 So. 3d 882 (Fla. 1st DCA 2010) the assumption was proven wrong. The Blake court set forth three alternative methods by which a claimant may prove entitlement to PTD benefits: by presenting evidence of (1) permanent medical incapacity to engage in at least sedentary employment, within a 50-mile radius of the employee’s residence, due to physical limitation; (2) permanent work-related physical restrictions coupled with an exhaustive but unsuccessful job search; or (3) permanent work-related physical restrictions that, while not alone totally disabling, preclude Claimant from engaging in at least sedentary employment when combined with vocational factors.
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stacking.jpgStacking coverage is one of the most misunderstood areas of Florida’s motor vehicle insurance laws. The goal of this blog is to help clear up the confusion.

Stacked coverage is a type of coverage that is available within the broader type of coverage known as uninsured/underinsured motorist (UM/UIM) insurance. Neither coverage is mandatory under Florida law.

In Florida, the only mandatory coverages are Personal Injury Protection (PIP) and Property Damage – Liability. Every other type of coverage is optional.

One type of optional coverage is Bodily Injury, or BI. BI coverage pays for personal injuries, death, and economic losses caused by the insured’s negligence. Because an additional premium is charged for BI coverage, it is not purchased by every insured.

Uninsured/Underinsured coverage protects against the negligent motorist who does not have BI coverage – UM takes its place – or whose BI coverage limits are not sufficient to cover the losses – UIM. In other words, it performs for the insured (the person who has been damaged) as the at-fault party’s BI coverage otherwise would have.

Whenever BI coverage is purchased, UM/UIM will be included in the policy unless waived in writing by the insured. Like BI, it is not mandatory and a premium will be charged for the coverage.

Stacked coverage is an optional type of coverage that is available with the purchase of UM/UIM coverage. Like UM/UIM, stacked coverage will be included in the policy unless waived in writing by the insured.
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In the wake of The Miami Herald’s excellent series, Neglected to Death (Part 1; Part 2; Part 3), on the dire health and safety issues associated with Florida’s nursing home/assisted living facility industry, this is a good time to discuss some legal propositions closely related to the subject.

The Herald series focused on the problems and the state’s role, through AHCA and law enforcement, to control the situation. It paid little attention to the important role the civil justice system can and does play in regulating the system.

Civil law, as opposed to criminal law, is the branch of law dealing with disputes between individuals and/or organizations, in which compensation may be awarded to the victim. For instance, if a car crash victim claims damages against the driver for loss or injury sustained in an accident, this will be a civil law case.

In Florida, nursing home residents and their families harmed by negligence can bring claims through the civil justice system against those responsible for causing the harm. Such claims are brought under the parameters established by Chapter 400 of the Florida Statutes.

Even though victims may have the right to sue under Florida law, there is no guarantee of recovering compensation from the wrongdoers. This is because many of the facilities do not carry adequate insurance to cover losses or operate through a legal tangle of corporations and fictitious names designed to frustrate collection efforts.

Estate of Canavan v. National Healthcare Corp., 889 So. 2d 825 (Fla. 2d DCA 2004), provides some assistance to those trying to collect for nursing home negligence. The case, involving a lawsuit brought by the estate of a deceased nursing home resident, allows victims’ attorneys to hold a company’s directors or statutory managers personally liable for policy-level decisions affecting the operation of a long-term care facility.
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dollars.jpgIn Florida, a claim for wrongful death is brought by a court-appointed personal representative on behalf of the decedent’s estate and survivors. Florida’s Wrongful Death Act (FWDA) (Florida Statute Sections 768.16-768.26) outlines the specific damages recoverable by the estate and the survivors (e.g., surviving spouse and children).

Many wrongful death victims receive medical care for the injuries that have caused them to die. Frequently, Medicare pays those medical expenses.

In 1980, Congress enacted the Medicare Secondary Payer Act. The Act authorized the secretary of the Department of Health and Human Services to seek reimbursement for medical expenses incurred on behalf of wrongful death victims. One of the policies employed was to seek reimbursements from the property of wrongful death survivors who have no obligation or other connection to Medicare. This was always wrong, but it took a federal court to make the secretary understand.

Cases brought under the FWDA are resolved in favor of the estate and survivors in one of three ways: (1) pre-lawsult settlement; (2) settlement during suit; or (3) jury verdict rendered to a final judgment. When a case is settled, the personal representative is responsible for allocating the settlement proceeds between the estate and the survivors. In many instances, the estate is left with only a tiny portion of the overall recovery.

Until September 29, 2010, the secretary of the Department of Health and Human Services gave little regard to the allocations made under alternatives (1) and (2). The only allocations respected by the secretary were those made by a jury, alternative (3). Backed by the federal government, the secretary would muscle reimbursements from allocations made to survivors under options (1) and (2), even when the allocations are approved by a probate court judge. This was unacceptable to the personal representative and survivors in Bradley v. Sebelius, 621 F.3d 1330, 2010 WL 3769132 (11th Cir. 2010), who challenged the secretary’s practice of ignoring allocations made by personal representatives and approved by probate courts.
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nursing home abuse.jpgKudos to The Miami Herald for exposing the widespread abuse and neglect of residents within Florida’s nearly 2900 nursing homes and assisted-living facilities, and AHCA’s failure to perform its mandate to regulate and punish the wrongdoers. NEGLECTED TO DEATH Part I; Part II; Part III.

It is a must read and will make your blood boil… unless, of course, you are Governor Rick Scott or one of his merry band of radical right-wing Republican legislators who are pushing to create laws designed to weaken rather than strengthen the rights of private citizens to hold bad facilites accountable.

These are some of The Herald’s findings:

  • 70 People died from abuse or neglect since 2002.
  • 1,732 Homes were caught using illegal restraints like ropes, locking residents in closets, and tranquilizing them since 2002.
  • Only 26 facilities closed down by AHCA since 2002. State regulators could have shut down 70 homes in the past two years for a host of severe violations – including abuse and neglect by caretakes – but in the end, closed just seven.
  • 13,250 Police and rescue calls to a small enclave of ALFs in Broward County since 2005 – essentially one every four hours.
  • While the number of new homes has exploded across the state – 550 in the past five years – the state has dropped critical inspections by 33 percent, allowing some of the worst facilities to stay open.
  • Though the state has the power to impose fines on homes that break the law, the penalties are routinely decreased, delayed or dropped altogether. Consider: In 2009 AHCA could have imposed more than $6 million in fines, but took in just $650,000.

Now for what Rick Scott and his cohorts are seeking to enact:
House Bill 661 and Senate Bill 1396 would cap non-economic damages at $250,000 in wrongful death cases involving nursing homes for the first time. It would also make it more difficult to obtain punitive damages, and prohibit naming an out-of-town owner or investor of a nursing home in a lawsuit.
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