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Caps on non-economic damages in medical malpractice lawsuits – set at $250,000 per incident under Gov. Jeb Bush – are unconstitutional. The Florida Supreme Court decided this soundly – first in the 2015 case of Estate of McCall v. U.S. (medical malpractice wrongful death cases) and again in 2017 with its ruling in North Broward Hospital District v. Kalitan (medical malpractice personal injury cases).medical malpractice attorney

But hospitals in Florida have found a loophole to this in the form of arbitration agreements. This was recently underscored in a case decided by Florida’s Fourth District Court of Appeal. In Plantation General Hospital v. Belzi, the appellate panel reversed a $4 million damage award and remanded to the lower court for a recalculation of damages – specifically to be in accordance with the provisions of F.S. 766.207, which still allows the $250,000 non-economic damage cap in cases handled by “voluntary arbitration.”

The Belzi case involved the death of a 24-year-old wife and mother who lost so much oxygen during childbirth, she was left in a vegetative state and died three months later. Her family filed a wrongful death medical malpractice lawsuit against the doctor and the hospital alleging their medical negligence resulted in the young woman’s death. Her child, delivered via emergency c-section, survived.  Continue reading →

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In Florida, there are laws in place requiring certain entities to be equipped with automated external defibrillators (AED). Commonly called “shock devices,” they are instruments used to electronically “restart” a person’s heart once they have gone into cardiac arrest. Here in Florida, F.S. 1006.165 requires every public school district that is a member of the Florida High School Athletic Association to have an operational AED on school grounds, and schools must make sure all employees and volunteers who might reasonably be expected to use the device are appropriately trained to do so. F.S. 258.0165 encourages (but does not require) state parks to have a functioning one on site at all times. Other provisions of Florida’s Administrative Code require them in dentists’ offices, state-owned or leased facilities. wrongful death lawyer

Failure to abide these provisions could be grounds upon which to pursue a negligence claim if a facility or premises required to have an AED does not, resulting in a wrongful death that might otherwise have been prevented.

In a recent case out of California (where there are similar provisions), an appellate court ruled a landlord who leases  commercial space to the operator of a health facility (which are required by state law to carry AEDs) doesn’t owe a duty of care to ensure those devices are provided. Continue reading →

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If you are injured by a product – whether it’s a defective vehicle or a faulty power tool – proving the manufacturer (or anyone in the chain of distribution) liable involves (per the Third Restatement of Torts) the existence of alternative design the main test to ascertain whether a product is defective. This provision holds that a product is defective in design only when the foreseeable risk of harm posed by that product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller. gavel

However, many states have been highly critical of this test, and Florida is one of those places wherein it’s been explicitly rejected. In 2015, the Florida Supreme Court in the 68-page ruling of Aubin v. Union Carbide Corpheld that it would retain the approach of the Second Restatement of Torts (which does not place this additional burden on consumers). The court ruled that in some instances in strict liability claims, the Third Restatement might shield manufacturers from all liability for products that are unreasonably dangerous simply because an alternative design for that product might be unavailable – even when, in some cases, the product may be in defective condition that’s unreasonably dangerous to the user. Further, the Third Restatement runs contrary to case law precedent set in this state, the court held.

However, federal courts often still use this test (though state law may still be applied). But as a recent case before the Fifth Circuit Court of Appeals shows, there is still opportunity to prevail.  Continue reading →

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It may seem as if the question of driverless, autonomous vehicles is one we aren’t likely to confront for several years, if not decades. In reality, though, legislation passed by Florida lawmakers in 2012 make it perfectly legal for self-driving vehicles to operate on our roads. In theory, a totally driverless car could pull up next to you with no human occupant and there would be no law against it. personal injury attorney

Sen. Jeff Brandes (R-St. Petersburg) is the one who consistently championed that measure and continues to advocate for advancing vehicle technologies. He explained recently to The Tampa Tribune that Florida is one of the most forward-thinking states in regards to mobility and transportation, and the goal is to lure developers and other companies to grow expand this technology here. However, that hasn’t come without concern of the potential risks.

As many personal injury attorneys are noting, this technology may not be fully ready. There are practical and legal concerns about how such vehicles are going to respond in real-life scenarios. One recent example of how things might go terribly wrong occurred recently in Tempe, Arizona. As reported by The New York Times, Uber and other rideshare companies started testing driverless cars a few years ago in Arizona, after officials in that state promised not to impose stringent restrictions on developers. Then earlier this month, an autonomous passenger car operated by Uber (with an emergency backup driver behind the wheel) struck and killed a pedestrian.  It’s believed to be the first pedestrian fatality associated with self-driving technology. Continue reading →

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A school district in California has agreed to pay $7.1 million to a former high school football player who sued for personal injuries after he reportedly suffered permanent brain damage stemming from the failure of his coach to recognize his concussion after a game.student injury lawyer

The San Diego Union-Tribune reports the student was 14 and a freshman on the school’s football team when he was diagnosed with a concussion following a game in the fall of 2013. Coaches reportedly had been trained specifically to recognize the symptoms of head injuries, but despite this did not seek medical help for the student when he displayed several of those symptoms. Prior to the incident, plaintiff was a bright student with a 3.9 GPA and a promising future. He was forced to take a year off school and returned to his studies at a high school that has a program specifically for students suffering from brain injuries.

For a time after the incident, he was comatose. There was uncertainty about whether he’d walk or talk again. His lawyers said the fact that he is now in a position to be able to graduate is “miraculous.”  Continue reading →

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The top court in Massachusetts ruled recently that consumers can sue brand name drug manufacturers over injuries caused by generic versions of their drugs/ treatments made by other companies. product liability attorney

This ruling – and a growing number like it – are important in product liability law following the 2011 U.S. Supreme Court ruling in Pliva v. Mensing, which held generic drug makers couldn’t be liable for failure to warn about a dangerous drug because those companies are required to use the exact same safety label as the brand name version. Generic drugs account for about 80 percent of all prescription medications distributed in the U.S. Pliva created a quagmire for consumers because generic manufacturers denied responsibility for creating the labels, but then brand name drug makers were successfully arguing they shouldn’t be liable for drugs they didn’t make or sell. Another 5-4 ruling by the highest court in Mutual Pharmaceutical Co. v. Bartlett reaffirmed this. Plaintiff suffered horrific injuries after taking a generic version of a pain medication and sought to sue generic drug makers for defective design. As then-Justice Samuel Alito remarked in the majority opinion, “Sympathy for the respondent does not relieve us of the responsibility of following the law.”

What the recent case, Rafferty v. Merck & Co. Inc., helps establish is that drug makers can still be held accountable when those medications harm consumers. Although this was an out-of-state case, our Orlando personal injury attorneys recognize that this is a ruling to which many state high courts will likely turn when facing similar issues. Continue reading →

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Amid ongoing incidents of violence at schools and colleges, the California Supreme Court has ruled that colleges DO owe their students a duty of care to protect them from foreseeable violence during curricular activities. This responsibility, the court ruled, was owing to the power dynamic between schools and students, which amounts to a “special relationship.”injury lawyer

This was a reversal of a previous appellate court decision, which held 2 to 1 that universities and colleges had no general legal obligation to protect adult students from the criminal actions of other students.

The case involves a 20-year-old pre-med student who was viciously attacked with a knife in a chemistry classroom by a fellow University of California at Los Angeles student. Her attacker had previously been diagnosed with paranoid delusions and possible schizophrenia and was undergoing outpatient treatment at the university at the time of the incident. He was later found not guilty by reason of insanity. Plaintiff’s argument against the university was the school breached its duty of care by failing to take reasonable steps to protect her from foreseeable violence. Continue reading →

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A critical element of any Florida slip-and-fall injury lawsuit is establishing actual or constructive knowledge.slip-and-fall attorney

Florida’s slip-and-fall statute, F.S. 768.0755, requires that if a person slips and suffers injury in the fall on a transitory foreign substance in a business establishment, that person must first prove the business had actual or constructive knowledge of the hazard and therefore had a duty to actively remedy it. Actual knowledge could be shown if the business created the condition or if a staffer or manager was informed directly of the floor’s condition at that time and location. Constructive knowledge is a bit trickier. It is shown by proving the condition existed for such a length of time that the business establishment should have learned of it in the exercise of ordinary care OR that the condition occurred with regularity and was thus foreseeable.

Indiana has a similar proof burden requirement in these premises liability cases, and this issue arose in a recent case before the U.S. Court of Appeals for the Seventh CircuitContinue reading →

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Public education campaigns have focused for years on the importance of appointing a designated driver if there are plans to be out drinking. However, that concept appears to have been lost to a significant extent among teens and young adults when it comes to the use of drugs by drivers – an increasing threat to road safety.drugged driving injury

A newly-released study published in the latest edition of Journal of Studies on Alcohol and Drugs reveals that 33 percent of recent high school graduates reported riding with an impaired peer at some point in the last year, being slightly more likely to ride with a driver impaired by marijuana than a driver who was drunk. Researchers said the takeaway here is that while so much of our efforts have been laser-focused on alcohol-impaired driving, perhaps we need to shift our focus more to users of other substances.

While 20 percent of respondents said they had ridden at least one time with an alcohol-impaired driver, 23 percent said they had been a passenger at least once with a marijuana-impaired driver and 6 percent with a driver who was impaired by other illicit drugs (i.e., cocaine, opiates, amphetamines, LSD or ecstasy). Researchers also examined whether the impaired driver was a friend or relative about the same age, a little-known or unknown person about the same age or someone who was older. Results showed the risk of riding with an impaired driver was much higher for peer drivers than it was for older motorists. Continue reading →

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The number of surgical centers in the U.S. has ballooned in recent years to more than 5,600. These facilities started several decades ago as a low-cost alternative for patients undergoing minor surgeries. However, these centers now outnumber hospitals, and federal regulators are approving them for an increasing number of complex procedures. The goal is to reduce federal health care costs. However, it seems many patients are paying the price, according to a new report by Kaiser Health News and USA Today.medical malpractice

The report indicates that staffers at these centers are calling 911 thousands of times annually with complications that range from minor to deadly, but we don’t know exactly how big the problem is because there is no national authority that tracks these incidents. The journalists’ analysis, based on legal filings, autopsy records and medical reports contained in more than 12,000 federal and state inspection records, as well as interviews with physicians, patients and health policy experts, indicates that at least 260 of these patients have died in the last five years as a result of in- and out-patient surgeries at these centers. Some patients were as young as 2-years-old, with some undergoing routine surgeries, like tonsillectomies and colonoscopies. Others are undergoing complex operations like spinal surgeries.

These centers and physicians share in the reward for these surgeries because doctors can earn their own fee plus a cut of the facility fee when they own shares in the center. However, the biggest risk to patients occurs with the fact that while Medicare requires surgical centers to be within 15 miles of an emergency room, it can still mean up to a half hour can pass between the time a 911 call is made and the time one arrives at the ER. Some critics and medical malpractice attorneys argue that certain patients with underlying medical issues or those undergoing serious procedures should only be treated in a hospital in the first place – if they should have these operations at all. Many of these facilities lack the kind of lifesaving training or equipment needed to address a potentially serious complication. These can include simple things like tools necessary to open an airway or training necessary to stop a patient from bleeding to death. At least two dozen patients reportedly died within minutes or days of undergoing surgical center operations. Continue reading →

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