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From time to time, I will list in this blog recent important information regarding manufactured products used by American consumers. Today’s entries:

Darvocet and Darvon: Popular prescription pain medications, go by the generic name propoxyphene. FDA studies show that the drug puts patients at risk of potentially serious or even fatal heart rhythm abnormalities. Propoxyphene is an opoid. Safety concerns were raised as early as 1978. Warnings were placed on boxes in 2009 of the dangers of overdoses. Now, the manufacturer, Xanodyne Pharmaceuticals, Inc., has agreed to withdraw the drug from the U.S. market.

DePuy Hip Replacement Parts: Some component parts in the DePuy Hip replacement system are feared to be the cause of a high rate of repeat surgies in those who have received the parts. Johnson & Johnson and DePuy Orthopaedics, its subsidiary, have announced that it is recalling the parts.

EBIce Cold Therapy: This is a cryo-therapy (“Cold Therapy”) device typically prescribed by orthopedists and podiatrists after a surgical procedure. Poor use instructions have resulted in serious nerve and skin damage similar to frost bite.

Fosomax: Manufactured by Mreck, this is a class of drugs called bisphosphonates. It is commonly used in tablet form to prevent and treat osteoporosis in post-menopausal woman. The Journal of Oral and Maxillofacial Surgeons recently reported a link between bisphosphonates and serious bonce disease called Osteonecrosis of the Jaw (ONJ), a disfiguring and disabling condition of the jaw bone that causes infection and rotting of the jaw bone.
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Without knowing any better, one might believe that most lawsuits are frivolous. This is a popular message in American society spread through ignorance and deceit. The truth reveals a different reality.

Through my blog, I will attempt to debunk through facts and reason this false notion regarding lawsuits. It will be undertaken in multiple installments.

The first thing to understand is that, for the past 30 years, big business has made a concerted effort to undermine the integrity of the civil justice system. The reason why is simple: Profits over people.

The civil justice system is the best vehicle an individual in our society has of holding a much stronger corporation accountable for wrongdoing. When the system works as designed by our Founding Fathers, powerful companies can be made to answer to judges and, more importantly, jurors.

Not happy with being held accountable, big business has undertaken a campaign to undermine the integrity of the civil justice system. In addition to the creation of laws making it more difficult for individuals to pursue claims, big business has developed a successful propoganda machine designed to pollute the minds of our citizenry against individuals who bring claims against companies.

Hardly an adult in America has not heard the expression “Frivolous Lawsuit.” Unfortunately, nearly every potential juror has been tainted with the false concept, some of whom are downright hostile against individuals who would sue a company. It a classic counter intuitive response: Everday Americans reflexively siding with big business over “We, the People.” Sad but true.

Big business is patting itself on the back for successfully turning individuals against their own best interests. They are laughing at you and me for being such fools.

In Florida, the minimum cost to file and serve a lawsuit on a single party is nearly $500. $500 is $500, not small change to most people, especially nowadays, including lawyers and law firms. Add in the fixed costs of rent, supplies, and salaries and the cost of filing a lawsuit approaches upwards of $1,500-$2,000. (This does not include, for example, the requirement in medical malpractice cases of obtaining an expert opinion before filing suit, which, depending on the complexity and seriousness of the case, can easily cost more than $5,000, or the practical need in other cases to obtain an expert’s knowledge before filing suit.)

The point is, it takes a significant amount of time, energy, and money to get a case off the ground. This is all without any guarantee whatsoever of being paid penny one in the case, even the strongest case. That’s right, contrary to the false ideas spread by the propogandists and those who have been duped into believing their garbage, the mere fact of filing a lawsuit does not assure a recovery. What it does guarantee is a knock-down, drag-out fight. I liken the consequence of filing a lawsuit to being on the back of an angry bull as it leaves the cage with the sole intent of bucking the rider off its back. Hold on tight and expect a rough ride.

Given the significant initial expense of filing suit and the uncertainty of success, does it make sense that lawyers make a practice of filing baseless (i.e., “frivolous”) claims? Not in the common sense world in which I try to live.

Stay tuned for more installments.
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Florida’s workers’ compensation system contains many different types of wage loss benefits. Each is unique in scope and character. They are:

  • Temporary total disability (TTD; 440.15(2)): Unable to work prior to maximum medical improvement (MMI)
  • Temporary partial disability (TPD; 440.15(4)): Able to work with restrictions
  • Impairment benefits (IB): Based on medical impairment rating upon reaching MMI
  • Permanent Total Disability (PTD; 440.15(1)): Unable to perform substantial gainful employment after reaching MMI. (See blog.)
  • Retraining: While being retrained in a certified program. (440.491) (See blog.)

Other monetary benefits that may be available to injured workers include:

If you have questions about any of these benefits, contact our office for a free, confidential consultation.
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33 U.S.C.A. 907 provides that employers are responsible for furnishing medical care to LHW for so long as the nature of the injuries and process of recovery may require. This sounds good for injured workers, but doesn’t always work out that way.

The key to the successful medical outcome for any injured longshore and harbor worker is the quaility of care provided. Sadly, successful recovery is not always an employer’s primary concern. Often, limiting claim costs is the foremost concern. When this is so, the quality of medical care may be compromised.

Under the LHWCA, injured workers are entitled to medical care and, in most cases, some wage loss benefits. The extent of those wage loss benefits is largely determined by the medical opinions given by the treating doctor(s).

Doctors closely aligned with employers and their insurance carriers have a tendency or inclination to give opinions favorable to the employers and carriers. When in doubt, their decisions favor employers and carriers.

Our law firm does not approve of this mentality. We believe that medical providers should act with the patient’s best interest in mind, rather than the employer/carrier’s.
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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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In the November, 2010 election, Republicans gained additional seats in the Florida House and Senate, making their previous solid majorities even stronger. Combined with the election of pro-big business Republican Governor Rick Scott, individuals should expect to see their rights at seeking redress from large corporations dramatically curtailed.

One of the first orders of business for the Republican legislature will be to eliminate the “enhanced injury” doctrine. As I discussed in a previous blog, the enhanced injury doctrine is a principle of law that allows civil courts to hold corporations accountable for damages caused by their negligence that exceed the damages due to the initial fault. A clear and simple example of the principle in application comes from the seminal case on the doctrine, D’Amario v. Ford Motor Company, 806 So.2d 424 (Fla. 2001). D’Amario involved a minor passenger in a vehicle that struck a tree. Following the impact, a fire began that ended in an explosion, causing the minor to lose three limbs and suffer burns to much of his body. The minor and his mother sued Ford alleging that a defective relay switch in the automobile caused the fire. They alleged that but for the defective switch, the fire would not have started and the minor’s injuries would have been limited to those from impacting the tree. Consistent with the enhanced injury doctrine, they limited their claim for damages to those caused by the fire. The case went to trial and was ultimately appealed to the Florida Supreme Court. The Supreme Court held Ford Motor Company responsible for the enhanced injuries, thus establishing the doctrine.
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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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The Readers’ Forum section, The Miami Herald published a letter from a South Florida doctor containing various assertions about medical malpractice litigation. The letter angered my wife, who decided that a response was necessary. Here it is:

Dr. Jerome Reich’s statement that “about 25-30 percent of the cost of our system is directly related to malpractice litigation, defensive medicine because of the threat of litigation and flagrantly ridiculous cases that some attorneys take on a contingency basis simply for “settlement”” is inflammatory and wrong.

Through years of misrepresentations, the insurance and medical industries have convinced the general public that every medical malpractice jury verdict favors the patient regardless of the merits of any particular case. The statistics tell a much different story. According to a 2001 study conducted by the Bureau of Justice Statistics, medical malpractice plaintiffs win only 27% of trial cases. There are many other studies with similar results. Interestingly, when this issue was brought up before the Florida legislature several years ago, the people making these inflammatory statements would not do so under oath.

A large focus of the conservative position on health care reform has been that frivolous lawsuits drive up health care costs and require doctors to practice “defensive medicine” that is costly and wasteful. However, the health economists and independent legal experts who study the issue do not believe that is true. They say that malpractice liability costs are a small fraction of the spiraling costs of the U.S. health care system, and that the medical errors that malpractice liability tries to prevent are themselves a huge cost both to the injured patients and to the health care system as a whole. Tom Baker, a professor at the University of Pennsylvania Law School and author of The Medical Malpractice Myth states “If you were to eliminate medical malpractice liability, even forgetting the negative consequences that would have for safety, accountability, and responsiveness, maybe we’d be talking about 1.5 percent of health care costs.”

The bottom line to me is that medical malpractice lawyers provide a much needed service. Heaven forbid that you or a family member be the victim of medical malpractice and have no legal recourse. Without legal recourse, what incentives are there to make our medical system better?
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Fifteen-passenger vans, especially those manufactured before 2004, are, by design, inherently unstable and unsafe, making them prone to roll over during tire blowouts and quick maneuving at higher speeds. People are being severly injured and killed when the vans roll over. Sadly, federal regulators and auto safety experts have known for years that these vans are unfit to transport people, yet they continue to be manufactured.

These vans were originally designed to carry cargo, not people. Those designed before 2004 lack even the most basic safety improvements and NHTSA-required warnings and advisories. However, even the newer models are unstable.

Federal law prohibits the sale of 15-passenger vans for the school-related transport of high school age and younger students, yet they continue to be rented for family use by the major rental agencies.

More than 500,000 of these vehicles are in use in the United States.
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