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When a driver is struck by an uninsured or underinsured motorist while also on-the-clock, it can give rise to a unique set of concerns about compensation.

First, any injury arising out of the course of employment is generally compensable by workers’ compensation benefits. But here’s where it gets tricky: If you settle too soon on the issue of worker’s comp on the assumption you will still receive uninsured motorist benefits, you might be in for an unpleasant surprise. Florida law allows your auto insurance provider to set off its obligation not just by what workers’ comp paid you, but by the full amount you were entitled to receive. carcrash1

So by failing to have an experienced Cape Coral injury lawyer review the workers’ compensation settlement offer following a work-related crash, you might be undercutting the subsequent undersinured motorist coverage claim.

The recent case of Harris v. Haynes is one illustration. Before delving into that case, which was weighed by the Tennessee Supreme Court, let’s look more closely at Florida law.

Fla. Stat. 627.727(1) holds that uninsured or underinsured motorist coverage shall not be duplicate the benefits available to an insured under any worker’s compensation law, personal injury protection benefit, disability benefits law or similar law. (emphasis added).

This means your auto insurance provider (or that of your employer) is only required to compensate an insured for damages not covered under workers compensation benefits law. Many people become ensnared by this provision because workers’ compensation benefits tend to be quickly attainable, so long as there is no doubt the injury occurred while the claimant was working. Plaintiffs reason they’ll get a quick pay-out from workers’ compensation, and then obtain the rest through UM coverage. This section of law proves a hurdle.

Of course, the policy has to specifically contain the set0ff language. For example, in the case of USAA Cas. Ins. Co. v. McDermott, Florida’s Second District Court of Appeal held an insurance carrier providing UM coverage for an officer struck by the vehicle of a fleeing suspect was not entitled to a set off of workers’ compensation benefits likely payable in the future because the policy did not contain a specific provision.

The plaintiff in the Harris case was not so fortunate in his pursuit of coverage. Here, a police officer was struck and seriously injured while on patrol. The at-fault driver was not insured, and neither was the owner of the vehicle that hit him.

The officer collected workers’ compensation benefits, and then sued both the vehicle driver and owner, securing a $1.25 million judgment. Because both defendants were not insured, the officer filed a claim with his employer’s liability provider.

However, the provider, Tennessee Risk Management Trust, argued it was not actually an insurance company, and wasn’t bound by normal state laws that might otherwise require it to pay. Rather, the entity was a “risk pool” formed by a coalition of local government entities. The coverage document issued by the group indicated employees who collected workers’ compensation were excluded entirely from receiving uninsured motorist coverage.

The trial court granted summary judgment to the trust, and this decision was affirmed by both the court of appeals and the state supreme court.

A number of governmental agencies in Florida also participate in similar risk pool systems, including some Florida sheriff’s offices (Florida Sheriffs Risk Management Fund). This is all the more reason for workers involved in crashes to seek experienced legal counsel before signing any type of coverage.

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

Additional Resources:

Harris v. Haynes , Aug. 26, 2014, Tennessee Supreme Court

More Blog Entries:

Documentary Highlights Tort Reform, Rise of Mandatory Arbitration, Aug. 25, 2014, Cape Coral Car Accident Lawyer Blog

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Florida is one of a handful of states that recognize family “step down provisions” in auto insurance policies. These provisions are frequently challenged because they purport that certain injured parties, by virtue of their relationship to the negligent party, should receive less. Specifically, these clauses target those with familial ties with the insured. bigdaddy

So, for example, if a child is seriously injured in a vehicle driven negligently by his or her insured parent, the child is insured – but only for the statutory minimum amount, a “step down” from the actual limits of liability stated in the parent’s insurance policy. The same could be applied to spouses or anyone living under the same roof.

The good news is these provisions are being challenged with increasing success, most recently in the South Carolina Supreme Court. Our Naples car accident lawyers understand the state high court’s ruling in Williams v. GEICO, will make it difficult for insurance companies to enforce family step-down provisions any longer in that state because the provision has been found to conflict with the interest of public welfare.

A handful of other states do still enforce these provisions, but the precedent set in the Williams case reflects an important shift in judicial perspective on the matter. Although the court recognized the authority of the insurer to limit liability under certain conditions, doing so solely on the basis of the injured party’s relationship to the insured was unfair.

According to court records, the Williams case began with a double-fatal crash involving a young married couple in rural South Carolina. The pair were struck by a train while in a vehicle for which they were both insured. The wreckage was so mangled, investigators were unable to tell who was behind the wheel. However, that didn’t matter for insurance purposes, as both were listed as insureds on the joint policy, which had a liability limit of $100,000 per person.  Because at least one party was negligent, the insurance company would reasonably only pay for the wrongful death of the other.

A personal representative was appointed to each estate, and each sought equal division of the insurance liability limit. However, the insurer argued that per a family step-down provision in the policy, the most the company would pay was the statutory minimum – $15,000 total. (The statutory minimum in South Carolina has since been increased to $25,000, but this is still a fraction of the coverage for which most responsible insureds pay.)

The personal representatives sued, and the trial court ruled in favor of the insurer, finding the language in the policy was not ambiguous and did not run contrary to public policy.

Upon review from the South Carolina Supreme Court,  justices agreed the policy was not ambiguous. Although the language is “not artfully worded,” the policy providers were clear in what they were trying to accomplish. However, the end result, the court found, was not in line with public policy. The freedom of contract is not absolute. Further, state statute specifically indicates that all South Carolina insurance policies need to insure the named insureds against liability for death or injury and, more importantly, insurers can’t limit or reduce coverage, or it will be void against public policy.

The court noted there is a “wide divergence of authority in this area” nationwide. However, this court sided with the logic set forth in the 1996 Kentucky case of Lewis v. West American Insurance Co., in which the court ruled family exclusions are injuries to a substantial number of citizens, as they deny injured persons the ability to rely on insurance coverage purchased by the policy holder.

“Almost every member of the public is potentially a member of this excluded class,” the court wrote in Lewis. “The exclusion is overly-broad, based on surmise and against the public good.”

The South Carolina Supreme Court concurred, adopting the same reasoning in reversing the earlier ruling in Williams.

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

Additional Resources:

Williams v. GEICO, Aug. 20, 2014, South Carolina Supreme Court

More Blog Entries:

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

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Property owners have specific duties owed to those who enter the premises. Those duties can vary depending on the kind of property and what business those entering have on site. (For example, a property owner would owe a lesser duty to a trespasser than to a business invitee, though sometimes exceptions are made when the trespasser is a child.)attention

Generally, the duty of a property owner – commercial or private – is to maintain a property reasonably free of hazards. When dangerous conditions exist that are not obvious, property owners are required to either fix them or offer adequate warning of the peril. This principle is generally applicable to premises liability law in most states.

Our Naples injury attorneys understand that in the recent case of Henkle v. Norman, before the Texas Supreme Court, the question was whether the warning offered was adequate.

The adequacy of a warning in premises liability claims can depend on a number of factors, but generally, the courts are going to consider the totality of the circumstances, including the status of the injured party, the nature of the hazard and whether there were any posted signs or verbal indications.

You may have noted if you walk into a grocery store on a rainy day that there are signs posted at the entrance warning, “Caution: Wet Floor.” This is an effort to warn you, a business invitee, of a danger that may not be obvious upon your entry. Such a sign clearly states the potential danger. However, if the sign only said, “Caution,” without noting the specific danger, one might argue the warning was not adequate.

In the Henkle case, the plaintiff was a mail delivery person and the defendants were homeowners. It was a Saturday morning in Austin, and colder-than-usual, with a forecast of a hard freeze possibly hitting the area that weekend. Although it hadn’t actually rained or snowed that day, one of the homeowners was aware of icy conditions in the area because her daughter had slipped and fallen in the roadway earlier that morning.

The mail carrier walked through the defendant’s yard and handed her the mail. As he turned to walk away, she called out, “Don’t slip.” Unfortunately, that’s exactly what happened, and he suffered injuries as a result.

He later sued on the basis of premises liability, arguing homeowners were aware of ice on the sidewalk but failed to address it or warn plaintiff of possible danger.

Defendants argued the statement “Don’t slip” was a warning, and the trial court agreed. The appellate court reversed, finding the instruction to be “general” and “not conclusive evidence of a warning.”

The Texas Supreme Court, however, reinstated the trial court’s order. In its reasoning, the court indicated in order to be adequate, a warning must be “more than a general instruction.” It has to notify of the particular condition.

So for example, a speed limit sight is not considered an adequate warning of an upcoming pothole. A sign urging drivers to travel “SLOW” is not an adequate warning of construction work in the roadway ahead.

By contrast, a cashier warning a customer to “watch the wet spot” was deemed by the court an adequate warning of a slippery floor.

In the Henkle case, the court found the “Don’t slip” warning adequate considering the totality of the circumstances. It specifically indicated a walking surface that was slippery, and the weather forecast that day had indicated there would likely be a hard freeze in the region.

Every case is going to be different, so it’s important to consult with an experienced attorney regarding whether a premises liability claim is worth pursuing.

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

Additional Resources:

Henkle v. Norman, Aug. 22, 2014, Texas Supreme Court

More Blog Entries:

Carman v. Tinkes – Cause of Crash Critical to Damage Recovery, Aug. 18, 2014, Naples Injury Lawyer Blog

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Prior to 2010, people in Florida who suffered injuries due to a “slip-and-fall” needed only to show that a dangerous condition existed on the property that proximately caused the plaintiff’s injuries.

But then the state legislature passed a law – codified in Florida Statute 768.0755 – that significantly shifted the burden of proof, and additionally required plaintiffs seeking to prove negligence by showing the defendant knew about the dangerous condition, or should have known about it, and failed to address it. warningwetfloor

Our Sarasota premises liability lawyers know this will be a key question an experienced injury attorney will analyze before deciding to press forward with a case. In many instances, the case will hinge largely on circumstantial evidence and witness testimony.

This was the case recently in Walker v. Winn Dixie Stores Inc., where the plaintiff appealed summary judgment granted in favor of a defendant store in a slip-and-fall negligence action. Florida’s First District Court of Appeal affirmed.

The biggest issue for the plaintiff was that she was unable to prove that the floor where she fell was wet for a period of time during which it would have been reasonable for store employees to find it and clean it. In fact, her own testimony suggested it had only been raining for approximately one minute prior to her fall.

According to court records, the incident occurred in Jacksonville, when the plaintiff traveled to the store to assist a disabled companion with his grocery shopping. She testified that when they arrived, the weather was “bright and sunny,” and up to that point, there had been no rain that morning.

The pair went about their grocery shopping for approximately a half hour. When they returned to the parking lot, the plaintiff described the weather as “steamy,” but indicated it didn’t appear to have recently rained or sprinkled. The pair loaded the groceries into the car and then the plaintiff helped her companion into the vehicle, with the entire process taking about 10 minutes. She then walked back to return the electric cart, at which point it began “misting.”

The woman parked the electric cart inside the front entrance area, stepped off and started to walk toward the door. However, as she did, she slipped and fell. She said that while she had seen no puddle, there were wet marks from the cart’s wheels. She described the condition that caused her to fall as “unnoticeable drops of water.”

This statement alone severely damaged her case. Remember, in order for a claim to be compensable, the plaintiff has to prove the defendant “knew or should have known” about it. If the condition as “unnoticeable,” that makes it tough to make the assertion workers should have acted upon it.

Still, the court explored other evidence, including video surveillance that shows store workers inspecting the area of the fall three to five minutes before it happened. The store manager, in reviewing that video, indicated it must have just begun to rain because staffers had put up an umbrella rack, with bags for wet umbrellas to ensure they didn’t drip onto the floor.

He further noted the absence of a mat on the floor, and speculated the workers were in the process of retrieving the mat, as was standard procedure when it begins to rain.

The plaintiff acknowledged she was proceeding under the theory of constructive, rather than actual knowledge in order to prove negligence. Primarily, she was relying on the fact that the store employees had started, but not completed, their rainy-day procedure. She argued the store should have either installed warning cones or mats in the affected area.

However, the trial court found, and the appellate court affirmed, there was no proof of actual or constructive knowledge of the presence of a transitory foreign object, as is required by the updated statute. Although the plaintiff argued the condition, even if unnoticeable, occurred with such frequency the store should have known about it, the court ruled the brief period of time the water was on the floor – four minutes at most – was insufficient to meet the statutory requirement that the alleged dangerous condition exist for such a length of time that in the course of ordinary care, the company knew or should have known about it.

This is not to say such cases are a lost cause. However, they do require plaintiff attorneys to proceed with knowledge and experience.

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

Additional Resources:

Walker v. Winn Dixie Stores Inc., Aug. 20, 2014, Florida’s First District Court of Appeal

More Blog Entries:

Cox v. Wal-Mart – Dangerous Condition Forms Basis for Premises Liability Claim, June 24, 2014, Sarasota Personal Injury Lawyer Blog

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Those on both sides of the Florida medical marijuana debate are getting fired up as we near the November election.

Recently, the opposition cited a statistic that piqued the interest of our Fort Myers car accident lawyers (and of reporters at Politifact): Marijuana is a factor in 1 out of every 4 fatal crashes in the country. rolledcigarette2

The statement was promoted by advocates from Don’t Let Florida Go to Pot, which is actually a coalition of some 40 organizations, including the Florida Sheriff’s Association, fighting against the legalization of marijuana for any purpose.

However, Politifact reporters thought that number seemed high, and decided to researcher further to determine the statement’s veracity.

First, the reporters asked the coalition where the statistic was derived. The answer was a White House report from 2011 that analyzed the rate of marijuana-positive results among deceased drivers who were tested during autopsies following crashes that occurred between 2005 and 2009. Specifically, these came from the National Highway Traffic Safety Administration’s Fatality Analysis Reporting System, which gleaned its information from accident reports in all 50 states.

The data is problematic for a number of reasons. For one thing, there are a fair number of deadly crashes excluded. There were 127,000 fatal crashes during that time frame. Only in 78,000 were drivers (or 68 percent) both deceased and tested for drugs. Of those tested, there was a range of 22 to 26 percent of drivers who tested positive for the drug.

However, these results exclude drivers who may have been using marijuana, but survived while someone else was killed.

Additionally, there is no uniformly-recognized level of toxicity for marijuana. Just because someone tests positive for the drug doesn’t necessarily mean he or she was intoxicated. Unlike alcohol, marijuana remains in a person’s system long after use. This could mean that a positive marijuana test result had nothing to do with the cause of the crash.

Going even further, there a number of studies that have focused on marijuana and its effect on roadway safety. To start, it is widely accepted that someone under the influence of the drug is going to have a reduced reaction time and dulled cognitive responses.

However, researchers from colleges in Colorado, Montana and Oregon found that in states that passed medical marijuana laws, the total number of fatal accidents decreased, usually by 8 to 10 percent. Researchers hypothesized that more people were consuming marijuana, and there were generally more likely to be doing so at home, rather than say, at a bar, where alcohol is often consumed. This is not to say marijuana is safer for drivers, but people were less likely to get behind the wheel after smoking as compared to those who were drinking.

There is some evidence to refute this, though. A study released in May from the University of Colorado School of Medicine indicated that in crashes occurring in 35 states, marijuana was present in drivers in 10 percent of fatal accidents in 2011 – a 6.5 percent increase from the number noted in 1995.

Still, researchers have seemingly been unable thus far to establish a definitive cause-and-effect connection with regard to medical marijuana legalization and an increase in fatal crashes.

Politifact ended up rating the statement as half-true. Whether voters consider this in November remains to be seen.

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

Additional Resources:

PolitiFact Florida: Fact-checking link between marijuana and fatal crashes, Aug. 10, 2014, By Josh Gillin, Tampa Bay Times

More Blog Entries:

Florida Labor Day Travel Poses Safety Risk, Aug. 30, 2014, Fort Myers Car Accident Lawyer Blog

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As of January 2014, the Florida Department of Corrections reported there were an estimated 100,500 inmates housed in 55 state prisons. Tens of thousands more are housed at any given time in county jails, many not yet convicted but awaiting trial.barbedwire

This group is not one to garner a great deal of public sympathy. However, inmates are legally entitled to receive adequate medical treatment. When they do not and the outcome of their medical condition is severely impacted as a result, this could be grounds for a civil lawsuit.

Our Fort Myers injury lawyers know these cases tend to be a bit more complicated because most usually involve liability not only of the medical providers, but also of the prison or jail staff. Medical malpractice claims arising out of such instances follow relatively the same track as for those on the outside; establishing the health care provider breached the acceptable standard of care for that field given the circumstances. However, it also requires inmates show prison officials treated the inmate with deliberate indifference to serious medical needs.

The standard of “deliberate indifference” requires proof that officials acted with reckless disregard to the substantial risk of harm to the prisoner. It’s a higher standard of negligence than might otherwise be required to proven. It rests on whether the official knew of the excessive risk of harm to the inmate and disregarded it by failing to take reasonable steps to obtain care for the inmate.

The recent case of Hahn v. Walsh, et al., before the U.S. Court of Appeals for the Seventh Circuit, is one such case. The federal appellate court reversed a lower court’s decision granting summary judgment in favor of the defendant jailer and county-contracted medical provider.

According to court records, an inmate who was arrested and awaiting a bond hearing died while in custody after suffering from ketoacidosis. This is a serious complication of diabetes, stemming from failure to treat a person who makes little to no insulin on their own. It involves the bodily process of breaking down fat for fuel when there is not enough insulin, resulting in a buildup of toxic acids in the bloodstream.

The woman was arrested for aggravated domestic violence battery, and placed on suicide watch, as she revealed she was suicidal. She also told officers she was diabetic, but refused to reveal what medications she was on or sign a medical release so that staffers could obtain her medical records. However, staffers were made aware that in addition to mental illness, this woman also suffered from mental disability, and may not have been able to best make decisions for herself.

As her stay wore on over the course of the next several days, she was sporadically given insulin and only sporadically ate the meals provided to her. Officers are trained to recognize certain diabetic conditions such as hypoglycemia and hyperclycemia and to call immediately for medical assistance if necessary.

Officers characterized the woman as largely uncooperative, but she did occasionally agree to eat and allow nurses to give her insulin injections. On the third night, she became violently ill. Other inmates would later report they heard a woman begging for insulin medication. Early that morning, corrections officers noted her to be in “medical distress.” Her blood-sugar was 966. She was suffering from ketoacidosis, and there was significant swelling of her brain. Doctors later asserted she had been in diabetic ketoacidosis for hours. She died at the hospital later that day.

Her husband and son later filed a lawsuit on her behalf, specifically alleging Eighth Amendment violations to her basic right to receive adequate health care while incarcerated.

According to news reports, she was the sixth inmate who died in the course of two years at the same facility. Other deaths were attributed to suicide or drug overdoses, but even those call into question the competency of jail staff to handle such circumstances.

Here, the 7th DCA found that while the lower court had correctly dismissed the wrongful death lawsuit,  it erred in doing so with prejudice where plaintiffs had not produced sufficient evidence to permit claims against the sheriff and the jail’s medical contractor. The appellate court reversed on this point, allowing plaintiff’s the opportunity to re-file.

Some examples of inadequate medical care by prison or jail staffers might include:

  • A major delay or denial of access to medical personnel;
  • A denial of access to an appropriately qualified health care personnel;
  • Failure to inquire into facts necessary to make a professional judgment;
  • Failure to carry out medical orders.

If you are an injury victim, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Hahn v. Walsh, et al., Aug. 12, 2014, U.S. Court of Appeals for the Seventh Circuit

More Blog Entries:

Brouwer v. Sisters of Charity – Common Knowledge Exception in Medical Malpractice Litigation, Aug. 20, 2014, Fort Myers Injury Lawyer Blog

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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