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There are some types of medical malpractice claims that center on a doctor’s failure to fully inform you about a proposed medical treatment. Lack of informed consent is predicated on the principle that you as a patient have the right to decide what will be done to your body. surgeon

Our Fort Myers medical malpractice attorneys know that absent appropriate information, the patient will be unable to make a good, educated decision about whether to proceed with the treatment plan. This includes information about your medical condition, qualifications of the doctor, potential risks involved with the proposed procedure, any alternative treatments and risks, the projected success and expected recovery time. If you don’t have accurate or adequate information and you are harmed during the procedure, there is a good chance you have a basis for a medical malpractice claim. Plaintiffs need to show if they had been given adequate information, they would not have consented to treatment, and the outcome likely would have been different.

A recent example of such a scenario played out in the Delaware Supreme Court in the case of Shapria et al. v. Christiana Care Health Services, Inc. In this case,  the patient suffered a fall from a ladder that resulted in numerous non-displaced rib fractures, among a host of other injuries. The patient was admitted to the local hospital, where he reported experiencing severe chest pain, despite being given oral pain medication.

His doctor requested a consult with a thoracic surgeon who was affiliated with the hospital, which performed a treatment called the “On-Q procedure.” The intent of the treatment is to treat pain resulting from rib fractures by inserting a catheter under the patient’s skin and over the ribs using a metal device. Then, a liquid analgesic goes directly into the catheter and surrounding tissue, relieving the pain.

The surgeon explained the procedure to the patient, who agreed to under go it.

But here’s what the patient didn’t know: First of all, this treatment is not approved by the Food & Drug Administration, meaning it’s an “off-label” treatment. It’s not illegal, but patients need to be advised of this risk. What the patient also didn’t know was this doctor had an independent interest in the procedure, as he was contracted by the manufacturer as a speaker member. He gave presentations to other doctors regarding the issue, and promoted it across the country. He was paid by the manufacturer to do so. He even created the promotional pamphlet for it.

Around the time this doctor became affiliated with this hospital, the number of patients receiving this treatment spiked.

This patient was one of those. The day after the catheter was inserted, the patient accidentally removed it, and it had to be reinserted. One of the two devices became displaced and punctured several of the patient’s internal organs. As a result, the patient had to undergo several additional surgeries and had an extended stay in the hospital.

The patient sued on the grounds the doctor negligently failed to obtain informed consent and also negligently performed the procedure. He also sued the hospital.

Following an eight-day trial, a jury returned a verdict finding both defendants liable and awarding the plaintiff $3.75 million in damages, plus another $650,000 to his wife for loss of consortium. The state supreme court affirmed.

If you have been a victim of medical malpractice in Fort Myers, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Shapria et al. v. Christiana Care Health Services, Inc. , Aug. 7, 2014, Delaware Supreme Court

More Blog Entries:

Harrell v. Florida AHCA – Birth Injury Medical Liens Reassessed, Aug. 11, 2014, Fort Myers Medical Malpractice Lawyer Blog

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This Labor Day is expected to encourage throngs of travelers across Florida – more than we’ve seen in any year since 2008. People have more confidence in the economy. They’re more likely to have a little extra cash in their pockets. Plus, gas prices are down a bit, and the weather in Florida is almost always a sure bet. cocktailbeachbar

According to AAA’s annual projections, we can expect some 30 million people in the U.S. taking a road trip of 50 miles or more over the weekend. While there is a palpable buzz of excitement about what, for many families, is the first real vacation in a long time – and the final “hurrah” before the start of the school year – the unfortunate reality is that more vehicles on the road is going to mean more crashes, more injuries more fatalities.

Our Tampa car accident attorneys have learned that, according to the National Safety Council, an estimated 400 people are going to die in traffic crashes this weekend. To put that into perspective, where the National Traffic Safety Administration estimates a drunk driving death every 51 minutes in any given weekend, this weekend, there is likely to be one every half hour. Put another way, every person on the road has a 1 in 88,000 chance in the car this weekend. Far more people will suffer serious and life-long injuries.

We don’t throw out these statistics to scare you, but we hope you will take notice. These figures are frightening, but the risk is not inevitable. You cannot control another driver’s decision to drink or to fiddle with the phone. However, you can control your own behind-the-wheel behavior, and that can greatly improve your odds.

First and foremost, we encourage drivers to abstain from drinking alcohol. Or if they don’t, make alternate plans for transportation. If you’re close enough to the beach or your destination, walk. Call a cab. AAA Tow to Go offers a free towing service every Labor Day weekend – from Friday afternoon through 6 a.m. Tuesday. The agency will tow your vehicle and give you a lift back home, within a 10-mile radius – no membership required. The confidential service can be tapped by calling 855-286-9246. Although towing may not be ideal, it’s a good last resort option – and a far better choice than taking your chance behind the wheel.

Consider that the penalty for drunk driving in Florida – even a first-time offense – can be up to six months behind bars, a $1,000 fine, a one-year license suspension, an interlock ignition mandate, and fees for alcohol education courses and court costs. These are light compared to what you would face if you were to actually be involved in a crash. Bear in mind, the cops will be out in full force this weekend, patrolling specifically for this purpose through the, “Drive Sober, Get Pulled Over” campaign.

Beyond securing a sober driver, travel experts advise making sure your vehicle is in good shape before even hitting the road. This means a routine check of the engine, radiator and fluids. Make sure tires are well-inflated and wiper fluid is full. Also make sure the lights, steering wheel and brakes are working, and you have an emergency kit with jumper wires, a flashlight, tool kit, tire gauge and wrenches – just in case. It’s also not a bad idea to keep a first aid kit, just in case you do end up stranded.

Drivers should also make sure to maintain concentration on the road. Have your passenger hold on to your phone, or safely store it in a bag, so you aren’t tempted. If you feel sick, fatigued or generally not up for driving, take a break. Keep in mind that large trucks are especially dangerous because they have lots of blind spots, and they can’t brake as quickly as smaller vehicles – something other drivers tend to forget. Avoid problems by making sure you are fully alert.

Finally, consider avoiding the rush by leaving early. Most people head home in the early or late evening on Monday. If you hop on the road before 4 p.m. or after 10 p.m., you will likely avoid most of the traffic. Better yet, stay another day, and head back Tuesday!

If you have been a victim of a traffic accident, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Labor Day Driving Tips, Aug. 28, 2014, By Sarah Dray, Demand Media, USA TODAY

More Blog Entries:

Carman v. Tinkes – Cause of Crash Critical to Damage Recovery, Aug. 18, 2014, Tampa Car Accident Lawyer Blog

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A criminal case against a nursing home aide will head to trail amid allegations she flouted standard rules on how to safely lift a patient. The Mississippi Supreme Court recently reversed of a lower court decision.

Our Tampa nursing home abuse lawyers would surmise a civil lawsuit may also be in the works here as there are certainly ample grounds to assert negligence against not only the worker, but the employer as well, depending on how well the worker was trained and supervised and what policies were in place to protect residents from these situations. hospital6

The incident that gave rise to the criminal action in Mississippi v. Hawkins was injury suffered by a patient while in the aide’s care. An investigation revealed the aide lifted the patient on her own, despite knowing that two people were required to assist in lifting her. This was not only for the benefit of the workers, but the patient too.

After lifting the patient, the aide improperly placed her in a lift/sling. She then walked away, leaving the woman unattended. When the elderly disabled woman fell onto the floor, she cried for help. But the aide did not call for assistance. The patient suffered numerous serious injuries as a result of that fall.

The aide’s actions were not only negligent and cold, they were criminal, state prosecutors determined. She was indicted for simple assault of a vulnerable person.

Several days before the criminal trial, the defense argued for dismissal on grounds the indictment contained an improper statement of law and that, technically, the state failed to assert a cause of action against the defendant. The trial court agreed, dismissing the case. Prosecutors appealed.

The issue was whether the trial judge erred in finding the indictment lacking. The defense argued there was ambiguity as to whether the aide’s actions were “willful, negligent and felonious,” as the statute indicated, or “purposeful, reckless, knowing,” as would be indicated under a separate subsection.

The state noted the court’s repeated interpretation that, so long as the indictment clearly describes the nature of the charge against the defendant, it is legally sufficient.

The court held that while the indictment was “drafted inartfully,” the charge was clear and therefore, the indictment was sufficient.

Injuries occurring to nursing home patients in the process of being lifted are not uncommon. The fact that only one person was present to lift this patient is unsurprising, given that so many facilities are short-staffed.

The Centers for Disease Control and Prevention, recognizing how problematic this issue has become, recently issued a report. The agency noted that even under ideal lifting conditions, the weight of any adult far exceeds the lifting capacity of most caregivers, about 90 percent of whom are female.

When caregivers improperly lift patients, it can result not only in injuries relating to falls, but also dislocated shoulders, friction burns, bruises and skin tears.

The average 100-bed facility can expect to spend upwards of $30,000 on mechanical lifting equipment. It’s an expense some facilities may be inclined to forgo. Even if the initial investment is made, maintenance of these machines can be costly, and some facilities choose to “make do” for a while with what they have, putting both patients and staffers at risk.

The federal agency advises nursing home facilities to establish a written patient lift policy that includes minimum standards, the amount of lifting equipment required, training for caregivers and assessment of each patient’s individual needs.

If you or a loved one have been a victim of nursing home negligence in Tampa, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Mississippi v. Hawkins , Aug. 14, 2014, Mississippi Supreme Court

More Blog Entries:

C-Section Debate Rages in Southwest Florida, Aug. 5, 2014, Tampa Nursing Home Abuse Lawyer Blog

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In the early 1990s, an elderly woman purchased a coffee from a fast food restaurant and soon after spilled it onto her lap, causing her to suffer serious injuries, including third-degree burns. coffeecup

She was widely mocked and derided for her decision to sue the restaurant, even though, as it was lesser known at the time, the restaurant chain knew its hot drinks posed a significant risk to consumers, was far too hot for consumption and had previously injured hundreds of people – including children and infants.

Although the fast-food restaurant ultimately lost the civil case in 1994, it and other large corporations won a major victory in the push for tort reform. The companies have been successful in convincing a large swath of the public that far too many personal injury lawsuits are “frivolous,” juries are out-of-control, judges fail to keep everyone in check and worst of all – taxpayers foot the bill. Of course, this isn’t accurate. But this case marked the beginning of widespread “mandatory arbitration,” which effectively limits the public’s access to seek justice in civil court.

Our Sarasota injury lawyers note this is the subject of a newly-released documentary, “Hot Coffee.” These mandatory arbitration agreements have become so commonplace, most people don’t even realize they are agreeing to them. In some instances, simply purchasing a product or entering a store or doctor’s office is considered an “agreement” to arbitrate.

The reason this matters is that this process takes justice out of the hands of the court system and places it in the hands of individuals who needn’t have any formal legal training or experience. Additionally, it is a firm of the defendant company’s choosing. There is a limited discovery period in the arbitration process, which makes it tougher for plaintiffs to gain access to important documents and information that could bolster their claim. There is also no right to public access, so the rest of the world may never know what happened. There is also no legal precedent set in these cases, so there is no opportunity for future rules of conduct to be established. In some cases, class action litigation is barred under arbitration agreements.

Overall, the process is heavily skewed in favor of the defendant corporation. Consider that the National Arbitration Forum ruled in favor of consumers in California in less than 0.2 percent of all cases over a four-year period from 2003 through 2007.

It’s also a myth that arbitration will save the consumer plaintiff time and money. The reality is, arbitration can take many years, and it is often held in a forum that is not convenient. Plus, while plaintiffs in court pay nothing upfront, those in arbitration generally have to split the costs with the defendant. This can range from a few hundred dollars to several thousand dollars an hour. This inevitably proves prohibitively expensive for a lot of people – and corporations know it.

An experienced injury lawyer may be able to remove the case from arbitration to court if it can prove the agreement wasn’t binding because it was either unconscionable or involuntary. The ruling in the 2009 case of Vaden v. Discover Bank, decided by the U.S. Supreme Court, did make it easier for consumers to challenge arbitration clauses. Specifically, the court ruled the Federal Arbitration Act does not confer federal jurisdiction over arbitration petitions.

Sarasota personal injury claims can be made by calling Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

http://www.hotcoffeethemovie.com

More Blog Entries:

Bush v. State Farm – Compulsory Medical Exam and Auto Insurance Coverage, Aug. 15, 2014, Sarasota Personal Injury Lawyer Blog

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The vast majority of Florida medical malpractice cases require early investment in an expert witness who can substantiate assertions that the defendant health care provider breached the acceptable standard of care for his or her field of practice.gloves1

Expert witnesses can be expensive and difficult to secure and the process can be time-consuming. However, it’s necessary because the entire case will be scrapped by the judge before it even reaches the trial phase, unless you can show evidence the defendant breached the standard of care, as confirmed by someone with expertise matching the defendant’s.

However, our Cape Coral medical malpractice attorneys know there is one important exception. That’s when a case of medical malpractice involves negligent acts that lie within the realm of common knowledge and experience.

One example of this might be a medication error, wherein a patient was given the wrong drug and suffered adverse consequences as a result. Another example might be if a person was slated to have their left kidney removed, and the surgeon instead took out the one on the right. These would be incidents where no special medical knowledge would be necessary to understand why the physician’s actions were negligent.

A recent example of common knowledge exception was heard by the South Carolina Supreme Court. In Brouwer v. Sisters of Charity Providence, the primary issue before the court was whether the medical malpractice claim should be dismissed for failure to file an expert witness affidavit along with her Notice of Intent to File Suit, pursuant to state evidence rules in medical malpractice cases.

However, the reason she didn’t attach the affidavit was because, she argued, an expert witness wasn’t required to establish her claim, as it was within the ambit of common knowledge and experience. The state supreme court ultimately agreed.

The patient in this case was at the hospital to undergo a surgical procedure for treatment of her sleep apnea. During the surgery, the woman suffered a severe allergic reaction, requiring her to receive treatment in the Intensive Care Unit. Her recovery time was substantially increased, and she suffered several ill effects as a result.

The allergic reaction, the plaintiff asserted, was due to her exposure to latex by medical personnel performing the procedure. This was despite several disclosures made by the patient regarding the allergy. She noted it in her pre-anesthesia evaluation, as well as in her consent to anesthetic and medical services form. She had also informed her doctor and, prior to the procedure, was given a wrist band that warned of her latex allergy.

Medical staffers wore latex gloves anyway.

When defendants moved for summary judgment because of a lack of an expert witness, plaintiff responded that it was her good faith belief that her allergic reaction to latex was within the realm of common knowledge and experience, and didn’t require an expert witness.

The state supreme court found no special learning was necessary to evaluate the conduct of the defendant. Exposure of a patient to latex when that patient has a known allergy to that substance, thus resulting in an allergic reaction, is a scenario that meets the common knowledge standard.

Determination of whether your case will require a pre-litigation expert witness will require careful analysis by your attorney.

If you have been a victim of medical malpractice in Cape Coral, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Brouwer v. Sisters of Charity Providence, Aug. 6, 2014, South Carolina Supreme Court

More Blog Entries:

C-Section Debate Rages in South Florida, Aug. 5, 2014, Cape Coral Medical Malpractice Lawyer Blog

 

 

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In recovering damages for injuries or deaths resulting from an auto accident, details regarding the cause of the crash are going to be critical to determining not only the eligible amount of financial compensation, but whether it can be sought at all. nightshot

Our Tampa car accident lawyers recognize that an injured party’s degree of fault can lessen the total amount he or she is entitled to collect. Because Florida follows a pure contributory negligence model of recovery, no amount of plaintiff fault will completely bar a plaintiff from pursuing damages. However, there are some cases when the degree of plaintiff fault could render such actions effectively worthless.

It’s important to weigh the potential outcomes carefully with your attorney before deciding whether and how to proceed.

In the recent case of Carman v. Tinkes, et al., the U.S. Court of Appeals for the Seventh Circuit ruled the high degree of fault by the plaintiff – even assuming it was proven the defendant was engaging in a traffic violation at the time of the wreck – precluded the claim from progressing. The case arose out of Indiana, which follows a modified comparative fault model. By this theory, plaintiffs who hold up to 49 percent of the fault are entitled to damages. However, if the court decides the plaintiff holds more than half of the responsibility for the incident resulting in injury, the claim will be barred.

While a case may not have the same outcome in Florida, given our more liberal approach to tort law, it’s still worth carefully considering whether such a claim should be brought in the first place.

According to court records, the undisputed evidence indicates that early one April morning, while it was still dark outside, a driver was traveling “quickly” on the highway without his headlights on. As he approached a red light at an intersection, witnesses would later say, he failed to stop or slow down. In doing so, he struck the right rear corner of a commercial pickup truck driven by one of the defendants. The truck did have its lights on.

The impact of the crash was tragic, resulting in the death of the car driver.

What was disputed later, when the car driver’s family filed suit against the trucker and his employer, was what action the truck driver was taking at the time of the crash. One witness testified the truck was fully stopped and completely within the left turn lane. However, another witness said the truck was partially in the middle lane, but was pulling into the left turn lane in front of another vehicle.

If the second version of events were true, the truck driver would have been committing a traffic violation (illegally passing on the right). However, the appellate court determined this issue was irrelevant because there was no indication that the violation served in any contributory way to the subsequent crash.

Plaintiffs argued two theories of negligence. The first, because the trucker was violating a traffic law at the time of the crash, he was per se negligent, which means he would be at least partially at fault for the death of the car driver. The second is that a metal bumper on the back of the commercial truck was installed after-market and created a hazardous condition that made an already serious crash fatal.

The appellate court rejected these arguments. The court found that violation of a statute does not necessarily make a driver liable for injury to another person unless the injury was in some way a result of the violation. In this case, there was nothing to suggest that but-for the actions of the truck driver or the existence of his bumper, the crash would not have occurred or the car driver would not have died.

Therefore, the surviving family will not be allowed to continue with their claim.

If you have been a victim of a traffic accident in Tampa, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Carman v. Tinkes, et al.,Aug. 7, 2014, U.S. Court of Appeals for the Seventh Circuit

More Blog Entries:

Boyles v. A&G Concrete Pools, Inc. – 4th DCA Affirms Accident Judgment, July 22, 2014, Tampa Car Accident Lawyer Blog

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There is a provision of federal law that bars a claim of vicarious liability against rental car companies in cases where a customer/driver negligently causes a traffic crash resulting in injury or death. The so-called “Graves Amendment” was passed in 2004 and and preempted the vicarious liability laws of 15 states that allowed such action – including Florida and New York. trucksontheroad

Now, a judge presiding over a New York case stemming from a fatal highway accident has ruled the “Graves” defense won’t shield the corporate owner of a leased truck operated by a man watching laptop pornography. The truck driver veered off the road and struck a disabled vehicle, killing the driver inside. Naples car accident lawyers know these kinds of cases illustrate how litigation can, over time, narrow the scope of compensation for the injured.

The Graves Amendment was passed after it was inserted into a $287 billion federal transportation bill that spanned 834 pages. There were no committee hearings or reports issued prior to its passage, and members of the House of Representatives discussed it for just 20 minutes before approving it.

Although Florida has one of the broadest vicarious liability laws in the country with regard to owners of vehicles (as the state considers automobiles a type of “dangerous instrumentality”), the Graves Amendment supersedes these provisions by holding short and long-term lessors of cars can’t be held financially responsible for crashes.

Rental car companies had voiced strong opposition to vicarious liability laws that allowed them to be held financially responsible for crashes involving customers because, they argued, they weren’t legally allowed to turn away qualified customers. Once the keys were in the driver’s hands, they argued, they had no control of the car.

However, the Graves Amendment has been used with broader applications beyond rental car companies.

In Stratton v. Wallace, the U.S. District Court in the Western District of New York determined the leasing firm of the tractor-trailer will not be shielded from legal liability. In rendering his decision, Judge Richard Arcara specifically criticized the lack of debate when Congress passed the Graves Amendment, and slammed its “poor craftsmanship.”

The facts of the case stretch back to 2009 on the New York State Thruway.

A 33-year-old driver struck a deer, and her car was inoperable. While she waited for assistance, she was killed when a tractor-trailer slammed into the back of her vehicle. The driver, who it was later determined was surfing pornography sites while behind the wheel, was sentenced to serve between 3 and 9 years in prison for second-degree manslaughter.

Following the criminal case, the victim’s husband filed suit against not just the driver and the driver’s employer, but also the company that owned the tractor-trailer and the parent company of both the employer and the owner of the vehicle.

The vehicle owner defendant filed a motion for summary judgment, citing the Graves Amendment, saying it trumped state law indicating vehicle owners can be held liable for crashes involving their vehicle, even if someone else was driving it at the time.

While the magistrate judge granted the defense request, the federal judge reversed. He noted in this particular case the lessor and lessee are in fact owned by the same parent company. The judge went so far as to include a diagram to explain his decision. He noted this was not a straightforward Graves Amendment case, wherein the operator and owner are connected by a limited contract. The relationship between lessor and lessee here is more substantial, as evidenced by the fact they are owned by the same firm.

If you have been a victim of a traffic accident, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

“Graves” Defense is Rejected in Fatal Highway Accident, Aug. 12, 2014, By John Caher, New York Law Journal

More Blog Entries:

Miccosukee Tribe v. Bermudez – Florida Wrongful Death Judgment Reversed, July 27, 2014, Naples Car Accident Lawyer Blog

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There are many grounds on which auto insurers will seek to deny coverage to those who have been injured. However, thanks to a series of rulings in the last several months, they won’t be able to to do so solely because an insured declined a compulsory medical exam.medicaldoctor

Compulsory medical exams were previously referred to as “independent” medical exams, though there is widespread recognition that there is nothing independent about them. The stated purpose is that they may be requested by insurers to verify  and/or dispute the nature and extent of your injuries.

Our Fort Myers car accident lawyers know recent rulings do not mean injured parties seeking damages will no longer need to submit to these exams in order to prevail. What it does mean is that plaintiffs in underinsured/uninsured motorist claims will have a bit more leverage in defining the terms, as insurers will not be allowed to simply state “refusal” as a breach of contract that precludes coverage. Instead, the insurer will have the burden of showing why the exam was reasonable and how it was prejudiced by the insured’s refusal to submit.

The Florida Supreme Court weighed this issue in March, in the case of State Farm v. Curran. The case began in June 2006 when the plaintiff insured was involved in a traffic accident. She was rear-ended by an underinsured motorist and sustained injuries as a result.

After the crash, the injured woman sued the underinsured driver, and reached a settlement with his insurer, which her own insurance company approved.

Subsequently, the plaintiff filed a request to collect her $100,000 in underinsured motorist coverage, which was the limit on her policy. Although the plaintiff indicated her damages were estimated to be nearly $3.5 million because she suffered from reflex sympathetic dystrophy syndrome (also sometimes referred to as complex regional pain syndrome). However, she agreed to settle for the full policy limit amount if the insurer would agree to it by a certain deadline.

The insurer responded by contacting the insured’s lawyer to set up a date and time for a compulsory medical exam. However, the plaintiff responded with a series of demands, including limiting the physicians from which the insurer could choose and limiting the number of CMEs to which she would be required to submit.

The insurer refused her demands, and when she didn’t show up for the scheduled exam, the insurer responded that she had forfeited coverage because she had breached the terms of the contract. The insurer then requested – and was granted – a summary judgment.

The state supreme court reversed, finding that in the context of UM coverage, a CME is a post-loss obligation of the insured – not a condition of precedent to coverage.

With that ruling in mind, Florida’s 2nd DCA ruled in Bush v. State Farm along similar lines. The circumstances were nearly identical – an insured who was rear-ended by an underinsured motorist, sought UM coverage from the insurer and then declined to submit to a CME without some concessions from the insurer.

The 2nd DCA held the trial court’s grant of summary judgment was improper in light of the Curran decision. The appellate court found there had been no evidence from the insurer of a material breach in policy or that the non-compliance harmed its case. The case was remanded for further proceedings.

If you have been a victim of a traffic accident, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Bush v. State Farm , July 30, 2014, Florida’s 2nd DCA

More Blog Entries:

Spaid v. Integon Indemnity Corp. – Ambiguous Auto Insurance Policies, July 14, 2014, Fort Myers Car Accident Lawyer Blog

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Recently, a judge in south Florida became the fourth in the span of just a few weeks to reject the state’s same-sex marriage ban, in a case that involved the estate of a gay man who owned property here. back

In light of this and other recent decisions, it’s valid to ask whether same sex partners in Florida could be entitled to wrongful death damages or worker’s compensation death benefits in the event their spouse suffers an untimely death. With regard to wrongful death, Florida allows for a “personal representative”  – designated by will or appointed by the court – to oversee the process and pursue damages. However, if the same-sex partner isn’t designated personal representative, it may be difficult to collect damages, absent a marriage certificate, which one can’t get in Florida.

Workers’ compensation death benefits may be equally difficult for same-sex partners in Florida, even when there is a marriage certificate, as the state doesn’t technically recognize these unions. However, our Cape Coral work injury lawyers know the legal landscape is rapidly changing, as evidenced by those four recent decisions.

Also, a recent case out of Alaska sets a promising precedent for those in this situation. Alaska also does not recognize same-sex marriages, and further has in place a constitutional amendment defining marriage as between one man and one woman. And yet, in Harris v. Millennium Hotel, the Alaska Supreme Court determined the exclusion of a same-sex spouse in a work-related death benefit case lacked fairness and was did not reflect the purpose of work death benefits.

According to the court file, the worker in question was a manager at a hotel, who was shot and killed while at work in October 2011. The employer conceded the death occurred in the course of the worker’s employment and that the death was compensable under the state’s workers’ compensation law. However, what was disputed was the claimant’s standing to receive benefits, as the firm indicated it had not received any documentation indicating the claimant’s same-sex partner was the worker’s wife or husband, and therefore could not be deemed a “widower.”

The worker challenged the constitutionality of the decision, arguing the pair had been together for 10 years, lived together most of that time in Alaska, exchanged rings, referred to each other as spouses, had joint credit cards, were listed together on health care plans, shared household expenses and raised children from previous relationships. She argued they would have married had state law allowed it.

Both sides agreed the board lacked authority to consider equal protection violations under the state’s constitution, but the board issued a final decision denying benefits. The appellate commission did the same, and the case was then sent to the Alaska Supreme Court.

The employer argued the state’s marriage amendment precluded same-sex partners from receiving death penalties under the state’s workers’ compensation law. The state supreme court disagreed, relying on a recent decision in State v. Schmidt, where it ruled the marriage amendment did not preclude same-sex couples from obtaining property tax exemption benefits typically afforded to married couples.

The court found the argument substantially similar here. The court rejected the comparison by the defense of a similar work death benefits case involving an opposite sex couple who legally could have married, but chose not to do so.

Where the purpose of the state’s workers’ compensation law is to provide fast, fair and efficient indemnity and medical benefits to injured workers and survivors of deceased workers at a reasonable cost to employers, the denial of benefits to this worker’s partner ran contrary to this purpose. Therefore, the ruling was reversed.

Given the recent trend of court rulings in Florida, it’s not unreasonable to think similar reasoning would be applied in a workers’ compensation case.

If you have been injured at work in Southwest Florida, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Harris v. Millennium Hotel, July 25, 2014, Alaska Supreme Court

More Blog Entries: Lenz v. Cent. Parking Sys. – Workers’ Comp Coverage for Ongoing Ailments, July 25, 2014, Cape Coral Workers’ Compensation Lawyer Blog

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A recent review of a birth injury lawsuit, Florida’s First District Court of Appeal reversed the course on past case law to fall in line with new federal standards regarding state agency medical bill reimbursement from injured parties’ previously-established judgments or settlement agreements. matteo2

Essentially, the court held in Harrell v. Florida AHCA that Florida’s Agency for Health Care Administration couldn’t collect anything more than medical expenses from a family’s personal injury fund. Our Tampa birth injury lawyers understand that prior to the 2013 U.S. Supreme Court ruling in Wos v. E.M.A., the determination for a state agency’s medical care reimbursements from a personal injury fund were determined by Florida Statute 409.910(11)(f).

However, in the Harrell case, the state was attempting to collect more from the settlement fund than what the family had recovered in damages for past medical expenses.

According to court records, the case started in 2002 when the couple’s daughter was deprived of oxygen during birth. This resulted in severe, catastrophic injuries. Those included cerebral palsy, mental retardation and quadriplegia. These are conditions from which the girl will never recover, and she will require intensive care for the rest of her life.

The family sued the hospital for damages. In the end, plaintiffs reached a confidential settlement agreement with the hospital. Because it’s confidential, we don’t know exactly how much they accepted or other terms of the agreement.

We do know the family needed help covering all of the girl’s medical expenses prior to reaching the settlement. Florida’s Medicaid program, which is overseen by the AHCA, covered medical expenses for the girl’s care in the amount of $361,000.

After the family reached a settlement, the state’s AHCA asserted a lien against the settlement for the full amount of medical expenses.

The family filed a petition with the court to determine the amount of the lien, asserting the formula set forth in Florida statutes should be set aside per the 2006 U.S. Supreme Court ruling of Arkansas DHHS v. Ahlborn. That ruling indicated states were barred from asserting liens on settlements in excess of medical expenses. The family argued that because the amount it recovered in the settlement for past medical expenses was less than what the ACHA was asserting in its lien, the ACHA should only be able to recover a proportionate share.

ACHA countered that the formula used to determine its recovery was mandatory, and it was entitled to the full amount.

The trial court decided in ACHA’s favor, finding the family had to reimburse the state the full amount. However, at the time of the decision, the court noted the pending Wos case. In that case, the court held that state statutes in North Carolina that set the state’s recovery from tort injury beneficiary’s at one-third was preempted by the Medicaid Act in so far as it required payment beyond what the injured party might have received for medical expenses. The court was clear in its indication that the Medicaid Act does not allow a state to demand a greater portion of the beneficiary’s recovery beyond what is specifically attributed to medical expenses.

Likewise, several other Florida appellate courts have reversed course on these matters. The 1st DCA determined it was time to do so as well. The trial court’s ruling was reversed, and the case remanded for further consideration in light of the Wos ruling.

If you have been a victim of medical malpractice in Tampa, contact Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Harrell v. Florida AHCA , July 28, 2014, Florida’s First District Court of Appeal

More Blog Entries:

C-Section Debate Rages in Southwest Florida, Aug. 5, 2014, Tampa Birth Injury Lawyer Blog