Florida Injury Lawyer Blog

Medical Malpractice Damage Caps May Soon Be Eliminated

December 12, 2016 | Associates and Bruce L. Scheiner

There are now two Florida appellate courts – including the one that oversees courts in Fort Myers – that have ruled in favor of eliminating medical malpractice damage caps of non-economic damages in personal injury lawsuits. That means we could be very close to seeing the elimination of damage caps in all medical malpractice lawsuits in the state. The most recent ruling was handed down by Florida’s 2nd District Court of Appeal in Port Charlotte HMA v. Suarez.

The Florida Supreme Court was already considering an earlier ruling to this same effect made by Florida’s 4th District Court of Appeal in North Broward Hospital v. Kalitan. Both rulings cite precedent set by the Florida’s Supreme Court’s 2014 opinion in McCall v. U.S., which struck down medical malpractice damage caps in wrongful death cases, finding them unconstitutional. But McCall, which invoked the constitutional right to equal protection, applied only to those cases in which the patient had died. Surviving patients are still subject to damage caps, which were approved by then-Gov. Jeb Bush, who sided with lawmakers citing a “medical malpractice crisis.” It was asserted such caps were needed to stem the tide of doctors fleeing the state due to hefty medical malpractice payouts. The state supreme court conducted its own analysis and found these and other claims upon which the law was enacted were simply untrue (the number of doctors in Florida was actually increasing during this time and there was no evidence of frivolous lawsuits or excessive verdicts).

Other states, including Illinois and New Hampshire, have previously struck down damage caps in medical malpractice lawsuits. Continue reading ›

Commercial Truck Recalls Highlight Safety Concerns

December 11, 2016 | Associates and Bruce L. Scheiner

Last year, the number of vehicle recalls in the U.S. hit another record, with 51.2 million vehicles involved in 868 separate recalls, according to the National Highway Traffic Safety Administration. The year before, there were 63 million vehicles named in 803 recalls. Many of those are passenger vehicles driven by the public, and those are certainly of great concern – not just to the vehicle owners and passengers, but to all of us who share the road.

However, one aspect of these recalls that gets less attention – but is now less alarming – is that of commercial truck recalls. A typical commercial truck can weigh 80,000 pounds. In many cases, when tractor-trailers or other large vehicles crash, there are injuries to multiple parties. These are more likely to be serious accidents that result in death. Even so, not all commercial vehicle owners respond to manufacturer recall notices.

Recently, a recall of 16,000 large trucks made by Volvo Trucks North America reached 100 percent completion rate within 18 months of being announced – a feat writers at Trucks.com declared as “rare” and “atypical.” The average commercial vehicle recall, the publication reports, results in only 70 percent of covered vehicles being repaired. Anthony Foxx, U.S. Department of Transportation Secretary, called the Volvo response one of “extraordinary effort,” following the manufacturer’s discovery that there were four separate instances of sudden steering failure. Continue reading ›

Davis v. Baez – Florida School Bus Stop Pedestrian Accident Lawsuit May Proceed

December 9, 2016 | Associates and Bruce L. Scheiner

Although school buses are designed to be safe vehicles, children at school bus stops – particularly those on busier streets, absent sidewalks and in the early morning hours – may be vulnerable to accidents involving other vehicles. When these incidents occur, it’s important for parents to discuss with an experienced injury lawyer the possibility the school district may be liable in failing to establish safe routes or safe stops.

Decisions about school bus routes have to balance the realities of ridership demand with:

Any special needs of riders;
Climate/ weather;
Population density;
Exposure to crime/ assault;
Traffic density.

School officials have to take into account a myriad of different factors in order to maximize student safety. This does not mean that every injury that occurs at or near a school bus stop or on a student’s route will be grounds for a lawsuit against the school district. But in some cases, the school district may be liable. That is what’s being alleged in the south Florida case of Davis v. Baez, recently before the Florida’s Third District Court of Appeals. Continue reading ›

Roundabout to Relieve Traffic at San Carlos Boulevard in Fort Myers Beach?

November 28, 2016 | Associates and Bruce L. Scheiner

Traffic entering and leaving Fort Myers Beach has always been something of a headache, especially if there is a special event. Some say it’s so bad, it keeps them off the island altogether, though that has done little to alleviate congestion.

Now, there is a proposal on the table from the Florida Department of Transportation that seeks to address the problem: Roundabouts. A lot of them, in fact. The state agency has posited that constructing roundabouts at nearly every intersection from Crescent Street to Summerlin Road is the solution. Although the proposal is still in development – FDOT has said it will present its traffic-calming study to the public in February – some council members have expressed skepticism, as have a number of business owners.

Still, most agree something has to be done. Tourists come from all over the world to visit Fort Myers Beach, and even when we’re not in season, bumper-to-bumper traffic can result in an hour-long commute just to get from one end of the mile-long Matanza’s Pass Bridge to the other. This can increase the risk of rear-end accidents and road rage. Continue reading ›

Elderly Couple Die in Fort Myers Crash on Way to Church

November 26, 2016 | Associates and Bruce L. Scheiner

An elderly south Fort Myers couple died in a car accident as they pulled onto Summerlin Road from their RV resort community, on their way to church. The driver of the vehicle that struck them was also injured. Investigators have concluded the 89-year-old decedent driver was at-fault in the collision.

According to The News-Press, the crash occurred around 6:30 p.m. when the driver of a 2012 Toyota tried to make a left turn onto Summerlin Road from M-Street, the primary entrance/exit to Siesta Bay RV Resort. He apparently misjudged the time he had to safely clear oncoming traffic and pulled into the path of a driver operating a 2007 Infiniti. Both occupants of the Toyota, the driver and his 87-year-old wife of 60 years, were rushed to a nearby hospital, where she was pronounced dead right away. he died shortly thereafter. The Infiniti driver also had injuries, though is expected to make a recovery.

The collision is still under investigation, but authorities have said that speed and alcohol are not suspected to have been factors. Decedent driver’s brother called the crash a bad mistake. He said his brother didn’t see the other vehicle as it approached. Reporters with Wink News spoke to several residents at the resort, who say they have expressed concerns that the intersection of Summerlin and M Street isn’t safe. There is no traffic light that gives those exiting the neighborhood an opportunity to safely enter traffic, which zooms by at 45 mph (or more, depending on whether motorists are obeying the speed limit). Continue reading ›

C.F. Bean v. Barhanovich – Dredge Pipe Danger for Boaters

November 24, 2016 | Associates and Bruce L. Scheiner

Boaters in Florida face many hazards while out on the water, from perilous weather to reckless operators. Underwater dredge pipes are a hidden risk.

Dredge pipes are used to conduct dredging operations, which are intended to clean out the bed of a harbor, river or some other area of water by scooping out the weeds, mud and trash. These sites are essentially construction zones on the water, and yet, they are usually not visible to boaters. They can pose a serious danger for approaching vessels, particularly in low visibility conditions.

That is why the companies and government agencies responsible for carrying out these operations owe a duty of care to make sure there are warnings or signs so boaters know to steer clear. The recent case of C.F. Bean v. Barhanovich involves a boater who was killed when the outboard engine of his fishing boat struck an underwater dredge pipe. The pipe flipped into his boat and fatally struck him. Continue reading ›

Anderson v. Hilton Hotels Corp. – Attorney Fees in Florida Premises Liability Lawsuit

November 22, 2016 | Associates and Bruce L. Scheiner

Attorneys’ fees are often a concern of personal injury plaintiffs, or anyone needing professional legal help. But when it comes to personal injury or wrongful death cases, almost always there is a contingency fee arrangement, which means the client pays nothing upfront and the attorney is ultimately reimbursed a percentage of the damages awarded in a settlement or trial verdict. If the case is lost, the attorney isn’t paid.

There are some circumstances, however, in which attorneys’ fees might be paid by the opposing side. Per F.S. 768.79, plaintiffs who extend a settlement offer that is not accepted within 30 days may recover attorney’s fees if they prevail in trial and are awarded damages in excess of 25 percent of that settlement offer.

Plaintiff in Anderson v. Hilton Hotels Corp. was seriously injured when he was attacked by a gunman in a hotel parking lot. He later filed a lawsuit against the the hotel and three other defendants – including the management company, the investment firm and the security contractor – for premises liability/ negligent security for failing to keep the property safe for guests. The question in his case was whether settlement offers made to the separate entities should be aggregated before being compared to the final damages awarded. The Florida Supreme Court answered: No. Continue reading ›

Ready v. RWI Transportation – Causal Link of One Car Accident to Another

November 20, 2016 | Associates and Bruce L. Scheiner

As Fort Myers personal injury attorneys, we handle many cases that involve third-person liability. Regardless of the type of incident – whether it’s a construction accident or a car accident or a slip-and-fall – there are four necessary elements one must prove in order to prevail. Those are:

Duty.
Breach.

BUI: Calls to Penalize the Same as DUI Renewed After Death of Marlins Pitcher, Friends

November 18, 2016 | Associates and Bruce L. Scheiner

The boating death of the Miami Marlins star pitcher Jose Fernandez shocked and devastated the team and the community. Now, a toxicology report reveals Fernandez, 24, had a blood-alcohol level that was almost twice the legal limit and he also had cocaine in his system. His two friends, also killed in the boating accident, had alcohol in their systems too, though they were under the legal limit. Authorities opined the three died of blunt force trauma to the torso and head after the boat slammed into a jetty around 3:30 a.m.

We still don’t know at this point who was actually operating the boat. However, we do know, based on the latest boating statistics released by the Florida Fish & Wildlife Conservation Commission (FWC) that alcohol and/or drug use played a role in 1 out of every 5 boating fatalities in Florida last year. There were a total of 737 reportable boating accidents in 2015 (those that involved injuries or caused more than $2,000 in property damage). Florida has the most registered vessels in the nation – 916,000 – a figure that has been steadily growing with the economic recovery.

Although boating under the influence (BUI) is a crime by Florida law (F.S. 327.35), and penalties are somewhat similar to those for driving under the influence (DUI) (F.S. 316.193), there are some loopholes that lawmakers have been trying to close for sometime. As the Palm Beach Post recently reported, BUI enforcement and treatment under the law raises a number of complex questions. Continue reading ›

Martin v. Powers – Can Rental Car Be Uninsured for UM Coverage Purposes?

November 15, 2016 | Associates and Bruce L. Scheiner

People might assume that a vehicle legally owned by a multi-million dollar corporation is adequately insured. But when it comes to rental cars, they may find themselves disappointed.

Approximately 1 in 4 drivers in Florida has no insurance, despite law that requires it. Florida’s vicarious liability laws consider motor vehicles to be a dangerous instrumentality, which means vehicle owners (if different from the driver) can be held responsible for injuries caused – even if the owner wasn’t directly negligent. It used to be that rental car companies were included. However, the 2005 passage of a federal law known as the Graves Amendment eliminated this avenue of financial recovery. The Graves Amendment, codified in 49 U.S.C. 30106, preempts and abolishes any state statute or common law precedent that held rental or leasing agencies vicariously liable for the negligent actions of their drivers – except when the owner was negligent or engaged in criminal wrongdoing.

When drivers rent a vehicle, he or she is given the option to purchase insurance through the rental car company. However, they aren’t required to do so and many don’t. Further, it’s not unheard of for rental car companies to rent vehicles to drivers with no insurance. But that effectively leaves the vehicle with no insurance in the event of a crash. So what’s the best way to protect yourself? Uninsured/ underinsured motorist coverage. Yet even then, as the recent case of Martin v. Powers shows, injured plaintiffs may still find themselves in for a fight. Continue reading ›