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As families prepare to head out on their holiday road trips, many will pile into the quintessential family-friendly vehicle: The minivan. minivan

However, a new series of crash tests indicate the vehicle may not be as safe as some may have long believed.

The research, released by the Insurance Institute for Highway Safety, indicates the van failed the “small overlap” front crash test. In the case of one model, the depth of intrusion into the front passenger seat was the worst of any vehicle on the market. Consistently, minivans had the worst outcome in that type of test. Generally what that means is drivers and front seat passengers would be at serious risk of severe and possibly permanent leg injuries in the event of a front-impact crash.

Cape Coral auto accident attorneys understand the worst-performing minivan model, according to The New York Times’ report on the testing, was the Chrysler Town & Country, which earned the lowest overall rating of “Poor.” The Nissan Quest also received this rating, as did the Dodge Grand Caravan and the Mazda 5. Another model minivan, the Toyota Sienna, received a rating of “Acceptable.”

The ratings are graded on a four-point scale, ranging from Good (being the best), to Acceptable to Marginal and lastly Poor (the worst).

Researchers reportedly evaluated all available minivan models currently on the market, except for the Kia Sedona, which underwent a redesign recently. Last year, the Honda Odyssey was the top-rated minivan, receiving a rating of “Good” on the small overlap test.

This type of test is meant to reconstruct what occurs when the front corner of a car sustains impact with another vehicle or solid object at 40 mph. The executive researcher said these results reveal the need for further safety considerations by manufacturers. These same models previously received all top-level ratings in other tests, though it now appears they are not providing the kind of broad protection needed for front-impact crashes. Researchers only began conducting this particular test beginning in 2012, and did so because federal data revealed these types of wrecks accounted for a quarter of all fatal and serious injuries in vehicles that had previously received a “Good” level rating.

Study authors were quick to note these vehicles still provide decent overall crash protection, but consumers of vehicles should consider purchasing those models that fared better in the small overlap test (the Toyota Sienna or Honda Odyssey).

It’s not just minivans that are the problem. The institute pointed out of the 134 cars on which it has conducted this test, 30 failed it. However, minivans tend to be more susceptible to problems because of the way they are built – on platforms much wider than typical passenger cars. This means a greater portion of the front extends beyond the main crash-absorbing point.

In those vehicles that rated Poor, researchers say there is virtually no chance a person seated in the front wouldn’t sustain – at minimum – severe bone fractures in one or both legs. If the person survived, he or she would be unlikely to ever walk again normally.

In these situations, injured persons should consult with an experienced attorney to learn more about their legal options to pursue compensation and damages.

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

Additional Resources:

Minivans Fare Poorly in Tests Mimicking a Collision, Nov. 20, 2014, By Cheryl Jensen, The New York Times

More Blog Entries:

Pope v. Babick – Third-Party Driver Sued in Crash Case, Nov. 2, 2014, Cape Coral Car Accident Lawyer Blog

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Auto insurance law is complex – even for other insurance companies.

This fact was illustrated recently in the case of GEICO v. Gables Insurance Recovery Inc., where an auto insurer and a health care insurer were battling it out in Florida’s Third District Court of Appeal over a claim of recovery for medical bills incurred following a car accident. wetstreet

On one hand, the health care insurance company argued the auto insurer was required to pay 80 percent of the medical expenses reasonably incurred by its insured. The auto insurer, on the other hand, argued it didn’t have to pay anything above the $10,000 personal injury protection limit, as indicated in the policy.

While the trial court and circuit court’s appellate division both sided in favor of the health care insurer, 3rd DCA reversed, finding the auto insurer’s argument compelling and refusing to force an insurer to pay above the policy limits without a finding of bad faith.

Our Sarasota accident attorneys recognize that while this case didn’t centrally involve an injured motorist, the question of how much an insurer will pay is relevant to most personal injury and wrongful death cases. The case shows that even when insurers are up against other deep-pocketed corporations, they are often unwilling to bend or settle.

Accident victims often find this one of the most frustrating aspects of an accident. Insurance companies will often offer crash victims low-ball offers in the immediate aftermath. We encourage people to sign nothing until they’ve spoken first with an injury attorney, as you may unwittingly be signing away your rights.

In the GEICO case, the underlying facts are the auto insurance company’s client sustained injuries in a crash in May 2008. At the time of that accident, she was insured by a personal injury protection plan for $10,000. This is no-fault coverage that is paid to insured in the event of a crash. Florida requires each driver to carry a minimum $10,000 PIP policy (though unless injuries are serious, some companies may only reimburse for up to $2,500, depending on the severity of injuries).

She sought medical treatment, and thereafter assigned her benefits to the health care provider who treated her. That firm in turn assigned benefits to its own insurer. The health care provider’s insurance company submitted an invoice of insured’s medical bills. The auto insurer responded by paying less than the total amount billed.

The health care provider insurer in turn filed a lawsuit against the auto insurer for breach of contract, alleging failure to pay benefits. The auto insurer countered it had no further liability because the policy’s $10,000 PIP limit had been exhausted.

Health care insurer then submitted request for summary judgment indicating the auto insurer was required to pay 80 percent of all reasonable medical expenses. Auto insurer filed a cross motion saying payment was capped by policy limits.

Trial court issued summary judgment in favor of health care insurer, and the appellate division affirmed. However, the 3rd DCA reversed.

The appellate panel ruled that because the auto insurance company paid out the maximum PIP benefits available under the policy, it could not be compelled to pay additional benefits absent a finding of bad faith. The court ruled nothing in the statute requires auto insurers to pay in excess of their own limits or set aside funds in anticipation of litigation regarding the remainder of unpaid claims.

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

Additional Resources:

GEICO v. Gables Insurance Recovery Inc., Dec. 10, 2014, Florida’s Third District Court of Appeal

More Blog Entries:

Special v. West Boca Medical Center – Florida Supreme Court Weighs Wrongful Death Lawsuit, Dec. 6, 2014, Sarasota Car Accident Lawyer Blog

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It’s the most wonderful time of the year. It also tends to be one of the most dangerous, with holiday-related injuries sending thousands of Floridians to the hospital each year. holidayhouse

The incidents run the gamut: Cooking/burn injuries, decoration-related falls and burns, slip-and-falls or falling merchandise while shopping, dog bites while visiting relatives, hotel injuries, motor vehicle crashes occurring while traveling to see family and injuries from playing with dangerous toys.

In some of these cases, injured people may be able to pursue legal damages to cover the cost of medical expenses, lost wages and pain and suffering. A determination must be made by establishing whether a person or company owed you a duty of care, whether that duty was breached and you were injured as a result of that breach. This is called negligence. Most of these types of claims would be rooted in various theories of negligence.

It is the hope of our Cape Coral injury lawyers that you enjoy a safe and happy holiday season. However, when an unexpected injury does occur, we are available immediately to help guide you through the legal process and your options to collect damages.

Let’s start first by talking about the kinds of injuries arising from premises liability law. Florida statutes require property owners and those who control property to keep it in reasonably safe condition for invited guests/patrons. When they fail in this regard, you may be entitled to pursue damages.

In slip-and-fall premises liability cases, F.S. 768.0755 requires plaintiffs in these cases to prove not only that a non-obvious slippery substance caused their fall and injuries, but also that defendant had actual or constructive knowledge (knew or should have known) of the issue and failed to remedy it or warn people about it.

Falling merchandise injuries would occur when store employees improperly stack goods or boxes or stack them too high, putting shoppers at risk of injury.

Hotel injuries would also fall under the premises liability umbrella. Hotels must make sure their structures adhere to all applicable building codes and the property is reasonably safe for guests. Many, however, are more interested in turning a profit than making necessary repairs, so injuries inevitably occur.

Dog bites, too, might be a form of premises liability, as it could be asserted a private homeowner failed to keep the property safe from an unreasonable risk of attack. It’s estimated roughly one-third of the payouts made by private homeowners’ insurance nationally involves dog bites. In Florida, these claims were tallied at $7 million in 2013. The average cost of a claim is $30,000. Most standard homeowner insurance policies cover claims up to between $100,000 and $300,000.

Perhaps the most common type of injury around this time of year are motor vehicle crashes. People attending holiday parties are more likely to be intoxicated before hitting the road, and many others are traveling long distances and may be fatigued and unfamiliar with the territory. December has one of the highest rates for traffic crashes of the year. While Florida is a no-fault auto insurance state, when injury costs exceed the limits of personal injury protection coverage, an injured driver, passenger or pedestrian may pursue damages from the at-fault driver or insurer. If that insurance still doesn’t cover it all or if the other driver doesn’t have insurance, injured persons can pursue underinsured motorist coverage from their own carrier.

Meanwhile, holiday decoration injuries continue to be a serious problem. Holiday emergency room doctors report head and neck injuries from ladder falls while hanging lights are the most common. These kinds of falls cost, on average, $40,000 just in medical bills. Sometimes these injuries may be compensable through a homeowner’s home insurance policy. Cooking injuries, too, may be covered, particularly if there was a fire involved. On Thanksgiving day alone, more than 4,000 fires occur in the U.S. annually. Figures for Christmas are similar.

Finally, there are toy-related injuries. The journal Clinical Pediatrics found recently toy-related injury rates from 1990 to 2011 increased by an astonishing 40 percent. More than 3 million children were treated in 2011 for toy-related injuries (one every 3 minutes) with more than half of those being under the age of 6. The most common culprits were riding toys and those that had choking hazards. A list of recalled toys can be found at Recalls.gov. This is especially an important tool for toys that have been given second-hand. Injuries stemming from defective toys could result in a product liability lawsuit.

Call the Cape Coral personal injury lawyers of Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Holiday decorating can light up the E.R., Dec. 4, 2014, By Monica S. Nagy, Fort Worth Star-Telegram

Toy-related injuries send a record number of kids to the E.R., Dec. 4, 2014, By Henry Kimball, CNN

More Blog Entries:

Elliot v. GEICO – Underinsured Motorist Coverage Set-Offs, Nov. 26, 2014, Cape Coral Injury Lawyer Blog

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A birth injury lawsuit was revived recently by the Connecticut Supreme Court, which reversed an earlier trial court opinion deeming plaintiff’s expert medical witness unqualified. The state high court reversed because although the two health care providers did not hold the exact same job, both were certified in the same specialty. pregnant

Specifically, plaintiffs were suing the health care provider/employer for vicarious liability stemming from negligence by employee/nurse-midwives. The expert witness opinion plaintiff provided was from that of a board-certified obstetrics physician.

Thus, the trial court erred in its decision in Wilkins v. Conn. Childbirth & Women’s Ctr., and the appellate court erred in affirming it, the state high court held.

Our Lehigh Acres birth injury lawyers know Connecticut laws pertaining to expert witness requirements predicating medical malpractice claims are similar to those required of Florida plaintiffs.

Here, F.S. 766.102 requires, firstly, any action rooted in the death or personal injury of another due to health care provider negligence has the greater burden of proof in showing provider breached the prevailing professional standard of care for his or her level of education, training and skills in light of all relevant circumstances and as considered reasonably prudent by health care providers who are similar situated. So in order to prove this breach, one must provide expert witness testimony from a health care provider of similar training and expertise, and that testimony must indicate defendant breached the prevailing care standard, proximately leading to plaintiff injury.

In order for testimony of that expert witness to be considered, he or she must:

  • Specialize in the same area as the defendant provider or in a similar area that includes evaluation, diagnosis or treatment of the medical condition at issue in the underlying claim, with prior experience treating such patients;
  • Have devoted at least 3 years immediately preceding the date of occurrence to the active practice of that specialty, instruction of students in that specialty or have involvement in clinical research in that specialty.

There are some other requirements too. Given the specificity of these rules, you want to make sure your attorney gets it right.

In Wilkins, plaintiff alleges while she was giving birth, nurse-midwife employees of defendant health care center failed to diagnose and treat a fourth-degree tear of the vaginal tissue, perineal skin and anal sphincter at the time of delivery. Neither was the issue addressed at postpartum check-ups. As a result, plaintiff suffered severe and permanent injuries, and her husband too filed a claim for loss of consortium.

Defendant/health care institution argued plaintiff failed to submit expert testimony by someone trained/experienced certified in nurse-midwifery or nursing. Trial court agreed, and thus dismissed the complaint.

Plaintiff appealed, arguing the written opinion of a board-certified gynecologist met this requirement. The appellate court affirmed, but state high court reversed. Here, the term “similar health care provider” means someone trained and experienced in the same medical specialty as defendant. While the defendant was an institution, the claim was for vicarious liability by its agents, who were nurse-midwives. Thus, plaintiff’s submission of opinion by a gynecologist met the standard of proof.

The case was remanded, and will now proceed to the trial phase.

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

Additional Resources:

Wilkins v. Conn. Childbirth & Women’s Ctr., Dec. 9, 2014, Connecticut Supreme Court

More Blog Entries:

Special v. West Boca Medical Center – Florida Supreme Court Weighs Wrongful Death Lawsuit, Dec. 6, 2014, Lehigh Acres Injury Lawyer Blog

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A family who suffers the untimely death of a loved one due to the negligence of another person or company has the right to pursue damages. However, the avenues to collect those damages may be limited if the injury or death occurred in the course of one’s employment. grave

In Florida, most companies are required by law to secure workers’ compensation insurance, which establishes no-fault coverage for situations in which someone is hurt or killed at work. That means the worker/surviving family doesn’t have to prove the company was negligent in order to collect benefits (based on the worker’s salary).

This comes with one major catch: Exclusive remedy. That means workers/surviving family members who collect benefits from the company’s insurer cannot then sue the company for damages related to the firm’s negligence in causing the worker’s death. Workers generally don’t have a choice about whether to accept workers’ compensation or pursue litigation. Exceptions only exist in cases where the company did not have workers’ compensation insurance, the worker was an independent contractor or the negligence rises to the level of reckless disregard for human life almost certain to cause serious injury or death.

Our Fort Myers work injury lawyers know there may also be opportunities to pursue third-party liability actions against an entity other than the insurer, but that depends on the circumstances of the case.

Beyond that, the exclusive remedy provision of Florida’s workers’ compensation law is firmly entrenched, and was further underscored recently with the Florida Supreme Court decision in Morales v. Zenith Insurance Co. This was a ruling issued following a certified question submitted by a federal appeals court, which was asked to weigh a wrongful death lawsuit filed by a deceased Florida worker’s widow and the workers’ compensation/general liability insurer of the company for which he worked.

According to court records, decedent was a lawn maintenance professional who was killed while loading a large palm tree onto a truck. Not long after his death, his widow filed a wrongful death lawsuit against the company. Some time after that, she entered into an agreement to accept workers’ compensation benefits. In do doing, she signed a contract releasing the firm of any further liability in the case.

Nevertheless, the wrongful death lawsuit proceeded, and ultimately resulted in a default judgment against the former employer for $9.5 million. The company was defunct by that point. It’s former insurer, however, was not. Plaintiff sought to compel the insurer to pay the judgment.

The U.S. Court of Appeals for the 11th Circuit knew workers’ compensation exclusive remedy is intended to protect employers from tort liability for workers’ injuries. But what about when a judgment was already secured? The court could not find case law addressing this fact, and thus certified the question to the state supreme court.

The court ruled that while plaintiff would have standing to pursue the insurer for a judgment against its former insured, the state’s exclusive remedy provision should have barred the wrongful death lawsuit in the first place. But even if it didn’t, the court found, the widow waived that right in her workers’ compensation settlement agreement.

If you have lost someone in a work-related accident in Florida, it’s imperative to contact an experienced lawyer as soon as possible to explore your legal options for compensation.

For more information on work injury claims in Fort Myers, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Morales v. Zenith Insurance Co., Dec. 4, 2014, Florida Supreme Court

More Blog Entries:

Elliot v. GEICO – Underinsured Motorist Coverage Set-Offs, Nov. 26, 2014, Fort Myers Work Injury Lawyer Blog

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The Florida Supreme Court granted new trial to plaintiff in a wrongful death lawsuit, finding two harmful errors – the over-diagnosis of amniotic fluid embolus and the exclusion of testimony regarding statements made by a medical examiner.

The court was asked to decide whether a trial court error should be harmless if it more than likely did not contribute to judgment. It answered in the negative, ruling the standard for determining whether an error is harmless requires beneficiary of the error to shoulder burden of proof that there was no reasonable possibility the error contributed to the verdict.

The case, Special v. West Boca Medical Center, stemmed from the 2003 death of a woman who died shortly after delivering her son five weeks early via cesarean section. According to court records, the 38-year-old mother-to-be was wheeled into the operating room, and an anesthesiologist administered spinal anesthesia. Moments after the placenta was removed, she became unresponsive. Her blood pressure fell. She went into cardiopulmonary arrest. She was temporarily resuscitated and transferred to the Intensive Care Unit, but again suffered cardiopulmonary arrest and died five hours after delivering.

Cape Coral wrongful death lawyers understand that birth is supposed to be a joyous event, it is also one of the most dangerous for both mothers and babies. There is so much that can potentially go wrong, and doctors and hospital staffers must adhere to the standard of care, which means anticipating problems, being trained to recognize them and being prepared to promptly and adequately address them.

Here, plaintiff was decedent’s husband and father of the baby. He alleged the anesthesiologist and hospital were negligent in administering the anesthesia, in monitoring her system, in controlling her fluids during surgery and in responding to her cardiopulmonary arrests. Defendants argued the woman’s death was caused by amniotic fluid embolus, also referred to as AFE, which is a type of allergic reaction resulting when a mother’s blood mixes with amniotic fluid.

Both sides presented conflicting expert testimony regarding the cause of death. A jury ultimately returned a verdict in favor of defendants. Plaintiff appealed, and the 4th DCA ruled the trial court needed to weigh errors using the “more likely than not” harmless error test applied to the facts of this case. In so doing, the trial court found the errors at trial harmless. Still, the trial court certified a question to the Florida Supreme Court regarding the proper test for harmless error in civil appeals. (A standard had been previously set for criminal appeals, but not civil cases.)

Here, contrary to trial court’s finding, the state high court deemed the exclusion of cross-examination testimony of a defense AFE expert witness and evidence of witness tampering were indeed harmful errors.

Specific to expert witness, there was evidence the hospital’s rate of AFE diagnosis far exceeded the national average for such diagnoses, indicating the diagnosis was overused by the hospital to explain a number of other conditions. (The rate of diagnosis for this condition was 80 times the national average.) But this line of questioning was excluded from jury consideration. Because the cause of death was a key point in this trial, the Florida Supreme Court ruled this information was relevant, and its exclusion from trial was not harmless.

Specific to witness tampering, plaintiff pointed to the medical examiner’s autopsy findings, which indicated decedent did not die of AFE. He alleged the defense attempted to intimidate the medical examiner because her findings revealed no evidence of AFE, where usually such evidence would be apparent. After medical examiner issued her findings, an official with the Department of Health, hired as an expert witness for the defense, issued a memo recommending filing a formal complaint against the medical examiner for her “serious error” with regard to her findings. The trial court found insufficient evidence linking the complaint to allegations of witness tampering in the civil case, and the Florida Supreme Court ultimately agreed with that ruling. However, there was indication of witness tampering of this same witness when a defense attorney warned her she “would not want to embarrass herself” by maintaining her position when a “world-renowned AFE expert” would be testifying on a position counter to her assertions. This, the high court ruled, was admissible evidence that should not have been excluded.

In light of trial court errors that were not harmless, a new trial was necessitated.

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:

Special v. West Boca Medical Center, Nov. 13, 2014, Florida Supreme Court

More Blog Entries:

Fortune v. Gulf Coast Tree Care: Employer Must Notify Insurer of Work Injury, Nov. 12, 2014, Cape Coral Wrongful Death Lawyer Blog

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Two teen girls, who were awarded $3.385 million and $1.063 million, respectively, plus an additional $1.5 million each in punitive damages for orifice injuries sustained after falling off the back of a personal watercraft, emerged successful in an appeal filed by the device manufacturer. seadoo1

In Colombo v. BRP US, Inc., a California appellate court rejected manufacturer’s assertion that plaintiffs presented insufficient evidence of inadequate warning of orifice injuries or that this omission was not reckless and/or grossly negligent to the degree it warranted punitive damages.

In fact, the court backed the jury’s finding – that under federal maritime law, the conduct of manufacturer showed reckless and callous disregard for the rights of others, and these actions were at least partially the cause of plaintiffs’ injuries. The other two defendants, the operator of the vehicle and its owner, were also found to share one-third of the blame.

Our Sarasota tourist injury lawyers recognize that despite the proliferation of these craft in Florida waters, they pose all kinds of hazards. Beyond the obvious risk of a crash, personal watercraft in particular pose a danger of orifice injuries, caused by the extreme force of water (800 pounds of force) thrust out of the jet nozzle.

This is a hazard known by the manufacturer. In fact, it is recommended that those riding on the device wear wetsuits, which are better designed to protect against this kind of injury. However, in this case, the warning was slapped on the console just underneath the handlebars – where the 16-year-old riders were unable to see. Both were wearing two-piece bathing suits.

Operator was an employee of a store that sold the vessels. The store owned the vessel. At no point did the owner or operator warn the girls that such suits were not recommended or that such injuries were a potential risk. The store did not routinely offer wet suits to riders unless they were riding in deeper water or if the water was a colder than usual temperature.

Victims would later testify the operator of the craft intentionally tossed them from it, putting them directly in the path of the jet thrust. The result was that one suffered serious injury to her vagina, and the other to her rectum. This resulted in surgeries, long-term pain and difficulty with controlling bowel movements. One was told she would not be able to naturally deliver a child, should she ever choose to become pregnant. They indicated that had they known the risks, they either would have worn a wet suit or chosen not to ride at all.

Manufacturer argued on appeal that trial court was wrong to exclude evidence that, while it had knowledge of prior claims of orifice injuries, those claims were not substantially similar to this one. Appellate court disagreed.

The court found that while there was conflicting evidence in the case, there was a substantial evidence of that supported the jury’s findings. Thus, the verdict and damages were affirmed.

Personal watercraft injuries tend to be under-reported, and not all may be serious enough to warrant medical attention. However, we would urge anyone who has suffered this type of trauma to seem medical intervention and then consult with an experienced lawyer to determine whether you may have a case.

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

Additional Resources:

Colombo v. BRP US, Inc.,Oct. 31, 2014, Court of Appeal, Fourth Appellate District, Division One

More Blog Entries:

Wright v. Carroll – Sudden Emergency Doctrine, Nov. 8, 2014, Sarasota Injury Lawyer Blog

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When a patient is struggling for air, there is a small window for effective medical response. This is especially true at birth, when a baby’s systems aren’t yet mature and functioning. In these cases, seconds count.birth

But for one Georgia boy, the response was wholly inadequate. Health care professionals knew he wasn’t getting enough oxygen during labor. There were strong indications he would need to be delivered early via cesarean. And yet, the doctor was never called. And when he did enter the world, fighting to breathe, it took staffers a full eight minutes to respond with oxygen – because they were busy, understaffed and had no one readily available.

That’s according to the evidence presented in Medley v. Northeast Georgia Medical Center. As a result of the delay, the boy suffered numerous permanent debilitating injuries, including:

  • Cerebral palsy
  • Disfigurement
  • Seizures
  • Developmental delays
  • Inability to independently eat (he is fed through a tube)
  • Inability to walk or talk

He will require around-the-clock care the rest of his life. Because a jury found the hospital/ health care workers breached the applicable standard of care for their position, a jury awarded the family $8.4 million in damages, which they say will be needed to pay for his astronomical care expenses.

Our Tampa birth injury lawyers are all too familiar with such cases. We know that while parents are grateful for every moment with their children, they grieve for the loss of what could have and should have been. Without the compensation they would receive from medical malpractice litigation, they would need to rely on taxpayer assistance, and possibly even have to file for bankruptcy to be absolved of care-related debts.

In the Medley case, the boy, now five, was born in November 2008. He desperately required oxygen at birth. As the minutes ticked by, the hospital’s neonatal resuscitation team was preoccupied with another patient. However, no backup help was summoned.

In a facility that promises to provide emergency medical care, there is no excuse for a baby having to wait to breathe – especially when there are indications early on that such assistance will be necessary once the child is delivered.

The hospital, noting its “surprise” at the verdict, indicated it will likely appeal, as officials insist the boy’s injuries are not the result of hospital staffer actions.

The jury decided otherwise, finding the child’s development of cerebral palsy and other problems were directly related to the delay in the breathing tube insertion.

Although a nearby clinic was also named as a defendant, given that a nurse midwife assisted with the delivery, the jury found the hospital to be 100 percent responsible. A statement released by the clinic indicated that while it was pleased to have been exonerated, its management “feels badly” that the hospital wasn’t given the same consideration.

So much for the consideration that should have been given to this helpless child.

A lawyer for the boy, who now lives with his grandmother, said the money would be placed into an established trust that would go directly to covering the cost of his lifelong care.

The Centers for Disease Control and Prevention report that babies who experience deprivation of oxygen, before, during and after birth, are at an increased risk of developing a host of medical problems, including cerebral palsy and other lifelong disabilities.

For birth injury help in Southwest Florida, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Hospital must pay $8.4 million after boy’s injury at birth, Oct. 22, 2014, By Nick Watson, Gainesville Times

More Blog Entries:

Report: Doctors Continue to Practice Despite Numerous Malpractice Payouts, Oct. 28, 2014, Tampa Birth Injury Attorney Blog

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The U.S. Court of Appeals for the 11th Circuit has revived a lawsuit against a cruise ship whose medical staff is accused of an egregious lapse of care for a patron who fell dockside and suffered a head injury. The man waited hours after the fall to see the ship’s physician and several hours beyond that to be taken ashore to receive care. He died several days after being flown back to his home state of New York for care.cruiseshipdocked

At issue in the subsequent wrongful death lawsuit, Franza v. Royal Caribbean Cruises, was the so-called “Barbetta Rule,” set by the 1988 decision in Barbetta v. S/S Bermuda Star. This rule effectively immunized shipowners from the legal responsibility of medical employees established under the doctrine of respondeat superior liability.

The Barbetta rule conferred broad immunity to the shipowner, regardless of the control held by the shipowner over the medical staff or how serious the alleged acts of negligence. Although the trial court found that neither the theory of actual or apparent agency (establishing fiduciary duty to plaintiff) was applicable, appellate panel reversed and found both assertions were available to plaintiff in this case. Further, the court struck the Barbetta rule as obsolete in today’s modern cruise line industry, with its advanced technologies and extensive control over employee actions.

Our Tampa tourist injury lawyers recognize this ruling is significant for several reasons. It means large cruise lines will become more invested in the quality of medical care offered aboard to patrons. It also means they can be held accountable when they fail in this regard.

That is significant because, according to the U.S. Centers for Disease Control and Prevention, there is no official agency that regulates medical practice aboard cruise ships. Generally, the medical clinics found on the ship are comparable to ambulatory care centers. There are guidelines cruise lines are encouraged to adopt, but there is no law requiring it.

The current guidelines indicate the following suggested standard of care on a cruise ship should include:

  • Providing emergency medical care for passengers and crew.
  • Stabilizing patients and initiating reasonable diagnostic and therapeutic interventions.
  • Facilitating evacuation of seriously ill patients.

Approximately 3 percent to 11 percent of all conditions reported on cruise ships are urgent or emergencies.

Even by these minimal standards, it appears defendant in the current case failed.

According to court records, decedent and his family were traveling on a cruise line in the Caribbean when the ship docked in Bermuda early in the morning. Decedent fell while boarding a trolley either at or near the dock. The fall resulted in a severe blow to the head.

Although he could easily have been referred ashore for treatment, his family said ship personnel required him to seek treatment aboard. A nurse checked him and determined his injuries were minor, although she ran no diagnostic scans or other testing. She sent him back to his room with an over-the-counter painkiller, and advised his wife of possible concussion signs.

His family called for assistance when his condition declined. It was four hours from the time of the fall before he finally saw a ship physician. Even then, the doctor would not see him until the family’s credit card information had been verified.

The doctor subsequently referred the patient to a hospital on shore for care. It was another 2.5 hours before he was actually taken ashore. According to his family, his life at that point was beyond saving.

The following day, he was airlifted to New York, where he died in the intensive care unit one week later.

In reviewing plaintiff’s claim for cause of action, appellate court found the complaint plausibly established just cause against the cruise line under both the doctrines of actual and apparent agency. Further, the court found the rise of a complex cruise industry, coupled with the progression of modern technology, effectively erased whatever utility the Barbetta rule may have once held.

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

Additional Resources:

Franza v. Royal Caribbean Cruises,Nov. 10, 2014, U.S. Court of Appeals for the Eleventh Circuit

More Blog Entries:

Court: Spouse of Child Abuser Had No Duty to Warn Neighbors, Nov. 18, 2014, Tampa Wrongful Death Lawyer Blog

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Uninsured motorist coverage and underinsured motorist coverage is designed to serve as a safety net for traffic crash victims and their families when the at-fault driver had no insurance or only the bare minimum insurance. Often referred to as “UM coverage,” it’s additional coverage held by the victim’s own auto insurance company, and it can be a lifeline in cases of a motor vehicle fatality or grievous injury. motorwayattwilight

In some cases, state law allows UM coverage providers to seek “set-offs” in certain situations. For example, if the injured person also received workers’ compensation benefits,  the insurer may be entitled to a “set off” that will reduce the UM payout by whatever was paid out by workers’ comp.

Additionally, if the other driver had insurance, albeit minimal, whatever was paid might be asserted as a “set off,” and so too might the amount of medical payments covered by a health care insurer.

But of course, as our Fort Myers motorcycle accident lawyers are well aware there are a host of provisions benefiting consumers too. For example, the 1st DCA, relying on the common-law collateral source rule, found in the 2010 case of Nationwide Mutual Fire Ins. Co. v. Harrell an insured was entitled to submit to the jury the gross amount of her medical bills, rather than the lesser amount paid by her private health care insurer under an independent settlement agreement. Thus, the insurer was not entitled to a set-off there.

That same year, the 4th DCA ruled in GEICO v. Cirillo-Meijer an insurer was entitled to a set-off for personal injury protection benefits received by plaintiff from at-fault driver’s insurer – but could not obtain a set-off for the settlement plaintiff secured from the driver personally. These cases tend to be extremely complicated, and rely heavily on state law and legal precedent.

The recent case of Elliot v. GEICO, before the California Court of Appeal for the Third Appellate District involved a woman whose husband was killed in a motorcycle accident.

According to court records, the man was killed when his motorcycle was struck by a truck driven by an intoxicated driver, a woman who was returning home from her job at a nearby restaurant and bar. His widow sought underinsured motorist benefits pursuant to the policy issued her husband.

However, the insurance company denied payment to her because she had already received more than the $100,000 in UM limits in a wrongful death lawsuit brought against the drunk driver and the owners of the restaurant. The at-fault driver’s insurance company paid $15,000 and the bar owner’s general liability insurer paid $250,000.

The trial court agreed with this denial, and the decision was affirmed by the appellate court, on the grounds the policy was unambiguous on this issue.

Ambiguity is one of the primary grounds on which an auto insurance company can be made to pay, as any conflicting policy provisions will result in a decision favorable to the insured.

However, courts also recognize insurers have a right to limit their payout policies, so long as they are expressly clear in doing so from the outset, and do not refuse to pay legitimate claims in bad faith.

In truth, few insurers will eagerly pay even clearly legitimate claims for coverage. That’s why it’s imperative for accident victims to seek counsel from an experienced accident lawyer.

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

Additional Resources:

Elliot v. GEICO, Nov. 19, 2014, California Court of Appeal for the Third Appellate District

More Blog Entries:
Wright v. Carroll – Sudden Emergency Doctrine, Nov. 8, 2014, Fort Myers Motorcycle Accident Lawyer

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