Florida Injury Attorney Blawg

August 22, 2021

Jeffrey P. Gale, P.A. // Health and Disability Insurance Reimbursement Rights in Florida Personal Injury Cases

It is common for health and disability (lost wages) insurance companies to pay benefits to their insureds who have been injured through the negligence of others. Most of the insurance policies contain language granting the insurance company a right of reimbursement for the money it has paid out from the proceeds recovered by the insured in the personal injury case for the same losses.

How much must be repaid depends on policy language and who is paying the settlement or judgment in the personal injury case.

Many of the insurance policies provide that the carrier has the right to be reimbursed in full up to the amount recovered in the liability case before the insured and the insured’s attorney receive penny one. When the compensation is paid by a tortfeasor, who is the person or entity responsible for causing the harm, reimbursement is determined by the formula set forth in section 768.76(4), Florida Statutes. The statutory formula applies even where the insurance policy calls for full reimbursement to the carrier first. In Ingenix v. Ham, 35 So.3d 949 (Fla. 2nd DCA 2010), Gerald Ham’s health insurer, UnitedHealthcare, paid almost all of Ham’s medical bills relating to a medical procedure that ultimately resulted in his death. After settling with the medical providers (i.e., tortfeasors) in a medical malpractice lawsuit, Ham’s estate contended that it was only required to reimburse UnitedHealthcare a reduced amount according to the formula set out in section 768.76(4), Florida Statutes (2008). UnitedHealthcare took the position that it was entitled to full reimbursement in accordance with the language of its policy. The court held that section 768.76(4) controlled, limiting UnitedHealthcare’s reimbursement to the formula under section 768.76(4).

July 6, 2021

Jeffrey P. Gale, P.A. // Ordinary Negligence vs. Medical Negligence (Malpractice)

by Jeffrey P. Gale, P.A.

The difficulties and limitations associated with medical negligence claims are many. The list includes:

Medical malpractice claims have a shorter statute of limitations than ordinary negligence claims — two years versus four years. See § 95.11(4)(b) and § 95.11(3)(a).
Prospective medical malpractice plaintiffs must comply with complex and costly presuit requirements, as set forth in chapter 766, Florida Statutes, before filing a medical malpractice suit, which includes conducting “an investigation to ascertain that there are reasonable grounds to believe” that medical malpractice occurred. Ordinary negligence claims do not have these requirements. Id. § 766.203(2); see generally id. § 766.201-.212.
The restrictions that chapter 766 places on medical malpractice plaintiffs’ ability to prove their cases persist even after a lawsuit is filed, such as providing specific qualifications for medical experts testifying as to the standard of care. See generally id. § 766.102.
Certain adult children (over the age of 25) whose parents die as a result of medical negligence are barred from recovering lost parental companionship, instruction, and guidance and for mental pain and suffering. See § 768.21(8). This restriction does not apply if the death results from ordinary negligence. See § 768.21(3).
Certain parents of adult children who die as a result of medical negligence are barred from recovering for mental pain and suffering. See § 768.21(8). This restriction does not apply if the death results from ordinary negligence. See § 768.21(4).

“Because of the statutory restrictions and requirements that apply only to medical malpractice claims, any ‘doubt’ as to whether a claim is for ordinary negligence or medical malpractice should be ‘generally resolved in favor of the claimant.”‘ J.B. v. Sacred Heart Hosp. of Pensacola, 635 So.2d 945, 947 (Fla. 1994).

July 4, 2021

Jeffrey P. Gale, P.A. // Florida’s Nursing Home Statute Provides Remedy to Some Barred by Florida’s Wrongful Death Act

by Jeffrey P. Gale, P.A.

I have railed at length in this blog against a Florida law that allows medical providers alone to avoid the same legal liability everyone else faces for causing the negligent loss of life. The offensive statute is section 768.21(8), Florida Statutes, which is part of Florida’s Wrongful Death Act.

Section 768.21, entitled “Damages,” describes who is entitled to what in wrongful death cases. Subparts (3) and (4) provide as follows:

(3) Minor children of the decedent, and all children of the decedent if there is no surviving spouse, may also recover for lost parental companionship, instruction, and guidance and for mental pain and suffering from the date of injury. For the purposes of this subsection, if both spouses die within 30 days of one another as a result of the same wrongful act or series of acts arising out of the same incident, each spouse is considered to have been predeceased by the other.

(4) Each parent of a deceased minor child may also recover for mental pain and suffering from the date of injury. Each parent of an adult child may also recover for mental pain and suffering if there are no other survivors.

Where the wrongful death resulted from medical malpractice, subpart (8) bars the recovery of “lost parental companionship, instruction, and guidance and for mental pain and suffering” of “all children of the decedent if there is no surviving spouse.” as otherwise allowed in subpart (3), and “mental pain and suffering” for “[e]ach parent of an adult child … if there are not other survivors” as otherwise allowed in subpart (4). Subpart (8) provides as follows:

(8) The damages specified in subsection (3) shall not be recoverable by adult children and the damages specified in subsection (4) shall not be recoverable by parents of an adult child with respect to claims for medical negligence as defined by s. 766.106(1).

(For purposes of this statute, an adult child is a child over the age of 25)

This simple paragraph has caused heartache upon heartache to a countless number of parents and children whose loved ones died from medical malpractice. Every week our office receives phone calls from disbelieving adult children and parents seeking a magical solution that doesn’t exist. Often, we are their fourth and fifth call. Sadly, the best we can offer are condolences and the suggestion they complain to Florida’s Governor and its state legislators. Not very comforting words.

June 13, 2021

Jeffrey P. Gale, P.A. // Two-Tiered Analysis Required Under F.S. 112.18(1) a/k/a the “Firefighter’s Presumption” or the “Heart-Lung” Statute When Disabling Condition Results From a Combination of an Underlying Condition With a “Triggering Event.”

by Jeffrey P. Gale, P.A.

In City of Jacksonville v. Ratliff, 217 So. 3d 183 (Fla. 1st DCE 2017), a firefighter with a pre-existing history of diabetes, high cholesterol, prior history of smoking, and a family history of early onset CAD – blocked arteries (CAD – coronary artery disease) caused by the build-up of plaque – among other pre-existing factors, suffered a myocardial infarction (another term for heart attack) after a stressful meeting at work. The myocardial infarction resulted from the rupture of the plaque.

The Employer/Carrier (E/C) presented uncontroverted evidence that the CAD was caused by preexisting factors unrelated to work. Nevertheless, the Judge of Compensation Claims (JCC) awarded compensation and related medical treatment for the myocardial infarction under the “heart-lung” statute, section 112.18, Florida Statutes. E/C appealed. The First DCA affirmed the JCC’s decision.

The Claimant asserted compensability of the heart condition on a “presumption only” basis; or in other words, the Claimant had no medical evidence of occupational causation and relied solely on the presumption of the “heart-lung” statute. To rebut the presumption, E/C faced only the threshold rebuttal burden of presenting competent evidence, rather than clear and convincing evidence, that the disease was not work related. This required E/C to provide evidence that a single factor, or multiple factors, wholly combined, causing the CAD were non-industrial in nature. Punsky v. Clay Cty. Sheriff’s Office, 18 So.3d 577 at 583 (Fla. 1st DCA) (on rehearing en banc); Fuller v. Okaloosa Corr. Inst., 22 So.3d 803, 806 (Fla. 1st DCA 2009).

E/C met its burden. Even still, it was held responsible for Claimant’s heart attack.

May 31, 2021

Jeffrey P. Gale, P.A. // Personal Injuries Sustained in Subsequent Accident May Be Compensable

by Jeffrey P. Gale, P.A.

We currently represent an elderly woman who was knocked down in the hallway of her condominium building by a large, unleashed dog. She fell and struck her head on the ground. In the days following the event, she had headaches and was lightheaded. While taking a shower, she fainted. As a result of this event, she was hospitalized then transferred to a facility for a month of rehabilitation. She is now receiving 24/7 attendant care at home.

Are the injuries sustained from the subsequent fall compensable?

Something similar happened in Eli Witt Cigar & Tobacco Co. v. Matatics, 55 So. 2d 549 (Fla. 1951). The Plaintiff/Appellee had suffered a brain concussion and other injuries in a motorcycle accident. Within weeks of the accident, he climbed a ladder to reach his attic. While descending, he suffered a dizzy spell and fell to the concrete floor. His injuries from this fall were permanent and catastrophic — paralysis in his lower and upper extremities.

May 11, 2021

Jeffrey P. Gale, P.A. // Florida Politicians Do Not Like “We the People”

by Jeffrey P. Gale, P.A.

Within the past two weeks, three bills limiting the rights of everyday citizens to control how they are governed were signed into law in Florida.

On May 10, 2021, Florida Governor Ron DeSantis signed Senate Bill 1890. The bill places a $3,000 cap on contributions to political committees trying to put proposed constitutional amendments on the ballot.

Constitutional amendment ballot initiatives are a citizen’s way of creating law. The right extends back to Florida’s 1968 Constitution. Examples of successful initiatives include approval of medical marijuana and a pathway for restoration of felon voting rights. Getting a proposed constitutional amendment on the ballot is a steep uphill climb. It requires forming and registering a committee, getting approval of the initiative language from the Attorney General and Florida Supreme Court, and securing thousands of signatures. Once the initiative is on the ballot, it requires 60% approval from voters for passage. Financial resources provide the wherewithal to accomplish all of these goals. SB 1890 may be an insurmountable hurdle. Recognizing this, the American Civil Liberties Union has wasted no time in filing a lawsuit in federal court in Tallahassee, Florida claiming that SB 1890 “burdens and chills” free speech and association under the First Amendment.

March 24, 2021

Jeffrey P. Gale, P.A. // Florida Statute Creates Presumption Entitling Firefighters and Law Enforcement or Correctional Officers to Workers’ Compensation Benefits

by Jeffrey P. Gale, P.A.

Unless you are a firefighter or any law enforcement officer, correctional officer, or correctional probation officer, in order to receive workers’ compensation benefits under Chapter 440 of the Florida Statutes for any condition or impairment of health caused by tuberculosis, heart disease, or hypertension, the burden will be on you to establish to a reasonable degree of medical certainty, based on objective relevant medical findings, that the workplace was the major contributing cause — meaning more than 50% — of your condition or impairment of health. See section 440.09(1), Florida Statutes. This can be a daunting task.

If, however, you are a firefighter or any law enforcement officer, correctional officer, or correctional probation officer, “[A]ny condition or impairment of health … caused by tuberculosis, heart disease, or hypertension resulting in total or partial disability or death shall be presumed to have been accidental and to have been suffered in the line of duty….” See section 112.18(1)(a), Florida Statutes. This is a game changer.

Two conditions apply which keep the presumption from being an absolute:

The “firefighter or law enforcement officer must have successfully passed a physical examination upon entering into any such service as a firefighter or law enforcement officer, which examination failed to reveal any evidence of any such condition.” Section 112.18(1)(a), Florida Statutes.
The presumption can be overcome by a showing that the condition or impairment was not accidental and suffered in the line of duty. Section 112.18(1)(a), Florida Statutes.

The “firefighter or law enforcement officer must have successfully passed a physical examination upon entering into any such service as a firefighter or law enforcement officer, which examination failed to reveal any evidence of any such condition.”

In City of Homestead/Preferred Gov’t Claims Solutions v. Foust, 242 So.3d 1169 (Fla. 1st DCA 2018), even though a law enforcement officer (LEO) had undergone a physical before becoming an auxilary LEO, he was denied compensation for both heart disease and hypertension because he had not undergone a physical examination upon entering into service as a full-time LEO.

March 15, 2021

Jeffrey P. Gale, P.A. // Severely Injured Uber Eats Operator Fighting for Compensation in Florida

by Jeffrey P. Gale, P.A.

We represent a young man who was severely injured in a roadway accident while making a delivery for Uber Eats. He was struck by a phantom motor vehicle (i.e., unidentified vehicle) while riding his bicycle and left to die by the side of the road. He was discovered and transported to Ryder Trauma Center, where he underwent emergency surgery including a craniotomy. Part of his skull has been permanently replaced by a metal plate.

Uber Eats has denied him all benefits.

Uber claims that its Florida operators are independent contractors. Because true independent contractors are not employees, they are not entitled to Florida workers’ compensation benefits (see 440.02(15)(d)). Workers’ compensation would cover medical and indemnity (i.e., wages) benefits. Our young client, who was a senior in high school when this event happened, has received neither through Uber, a multi-billion dollar company. Nothing. Zero. Zilch.

February 19, 2021

Jeffrey P. Gale, P.A. // Dealing With Medical Payments Made by the Wrong Entity During a Pending Florida Workers’ Compensation Case

by Jeffrey P. Gale, P.A.

It is not unusual for entities other than the workers’ compensation insurance carrier to pay medical expenses following a work-related accident. The most common payors are health insurance carriers, Medicare, and Medicaid. (PIP (a/k/a “No Fault”) insurance also pays if the accident involves motor vehicles, but since their rights are different than those of the other entities mentioned above for purposes of this blog, PIP will not be addressed in this blog.)

Since workers’ compensation is supposed to be the primary payor — PIP can add a wrinkle to this concept. See section 627.736(4), Florida Statutes — the other entities are entitled to reimbursement for the payments they have made. How the reimbursement is made depends on when, during the life of the workers’ compensation case, the payment is made. If it is made post-settlement, the payment is typically made as part of a negotiated agreement between the entities and the injured worker’s attorney. This is always the situation when the workers’ compensation employer/carrier denies responsibility for the accident and injuries throughout the entire case. Alternatively, when the carrier has accepted compensability of the claim it may agree as part of the negotiated workers’ compensation settlement to satisfy the liens. In this circumstance, hold harmless language should be included in the settlement agreement to protect the claimant in case the carrier fails to be proactive in resolving the liens and the entities come after the claimant for repayment.

February 1, 2021

Jeffrey P. Gale, P.A. // Dealing With Defendant’s Formal Bankruptcy Proceedings During Pending Personal Injury Case

by Jeffrey P. Gale, P.A.

Every citizen of this state should know that the only thing compelling personal injury liability insurance companies to voluntarily pay claims is the threat of being sued for bad faith.

Liability insurance companies have a legal obligation to act in the best interests of their insureds. Boston Old Colony Ins. Co. v. Gutierrez, 386 So.2d 783 (Fla. 1980) (An insurer who assumes the defense of the insured also assumes a duty to act in good faith and with due regard to the interests of the insured.) More specifically, in actions by third parties against the insured, the insurer must act in good faith and be diligent in its effort to negotiate a settlement within policy limits. Auto Mutual Indemnity Co. v. Shaw, 134 Fla. 815, 184 So. 852 (1938). If the carrier fails to do so and a final judgment is entered against its insured for an amount in excess of the policy limit, in a subsequent bad faith action the carrier may be forced to satisfy the excess judgment and pay attorney’s fees and costs. The excess can be many multiples of the policy limit, sometimes in the millions of dollars. The reasoning behind bad faith jurisprudence is that the carrier, by failing to adjust the claim in good faith, has exposed its policyholder to an otherwise avoidable financial burden.

Insurance carriers want to believe that Chapter 7 discharges extinguish their bad faith liability because the insured is not harmed by or liable for the excess verdict. In Camp v. St. Paul Fire & Marine Ins. Co., 616 So.2d 12 (Fla., 1993), the Florida Supreme Court ruled otherwise.

There are three types of bankruptcies, Chapter 7, 11, and 13.

Chapter 7. This chapter of the Bankruptcy Code involves liquidation” – the sale of a debtor’s nonexempt property and the distribution of the proceeds to creditors.
Chapter 11. This chapter of the Bankruptcy Code generally provides for reorganization, usually involving a corporation or partnership. A chapter 11 debtor usually proposes a plan of reorganization to keep its business alive and pay creditors over time. People in business or individuals can also seek relief in chapter 11.
Chapter 13. This chapter of the Bankruptcy Code provides for adjustment of debts of an individual with regular income. Chapter 13 allows a debtor to keep property and pay debts over time, usually three to five years.

Camp involved a medical malpractice case where the injured party obtained a three million dollar verdict after the the carrier failed to settle the case for the defendant doctor’s $250,000 insurance policy limit. Before the verdict was rendered, the defendant doctor filed for Chapter 7 bankruptcy. This put an automatic stay on the malpractice proceedings. While the case was under the stay order, the bankruptcy court granted a discharge that shielded the doctor from personal liability for any claims pending against him as of the date of his bankruptcy filing. Thereafter, the bankruptcy court authorized Camp, the injured party, to proceed with her lawsuit for the purpose of liquidating her claim in the bankruptcy case. (She requested relief from the stay by filing a motion under Bankruptcy Rules 4001 and 9014, showing cause as specified in 11 U.S.C. Sec. 362(d).) At the same time, however, the bankruptcy court specifically ruled that the doctor would be not be personally liable for any judgment Camp obtained against him in her state court lawsuit.

FLORIDA INJURY ATTORNEY BLAWG