Published on:

A recent report by CBS News indicates of dozens of Florida doctors with the most medical malpractice payouts, only four had lost their medical license. In three of those cases, action was only taken after the physician was arrested for either billing fraud or drug trafficking. In the fourth, the doctor failed to comply with previous terms of a lesser punishment.stethascope4

The case that prompted review was the death of a 42-year-old wife and mother of two boys, who was treated for appendicitis while on vacation with her family in Florida. Coincidentally, she was also a doctor, as was her husband. She underwent emergency surgery for her condition, but ended up bleeding to death in the hospital just two days later.

Weeks passed, and her husband asked to review her medical files. What he found convinced him his wife’s death was not inevitable. She could have been saved, he asserts, if her blood pressure had been appropriately monitored. It fell to critically low levels hours after surgery. And yet, no surgeons or physicians ordered imaging studies or lab tests to determine what was going on. As the plaintiff/doctor would later insist, these are the sort of vital signs that anyone with rudimentary training would recognize as problematic.

For this reason, he sued the surgeon who oversaw her care, blaming him partially for her death. As our Sarasota medical malpractice attorneys understand, it wasn’t the first time this doctor faced such an accusation. In fact, it was at least the 11th since just 2000.

The surgeon would not admit wrongdoing, but settled for the maximum insurance policy payout of $250,000.

This particular doctor was tied for No. 1 in terms of the most lawsuit payouts in the state. And yet, the Florida Board of Medicine has never revoked or even restricted his license.

Cases like this underscore two important points worthy of discussion. The first is that the risk of poor medical care is much higher than one might think. Consider that not one doctor out of the 25 most-sued in Florida lost his or her license for providing patients with poor care.

The second is that the argument often held up by big insurance companies and certain politicians that medical malpractice litigation is somehow “out-of-control” and keeping good doctors from staying in business simply isn’t true. The reality is that even doctors whose insurers have paid out out a dozen medical malpractice claims on their behalf are continuing to practice.

Advocates for watchdog group Public Citizens  say that such findings prove the state board of medicine isn’t doing its job. At what point do we say, “This is not just a fluke”?

The problem isn’t limited to Florida, though. A Public Citizen study found that between 1990 and 2009, more than half of doctors whose privileges were restricted or revoked by a hospital had never been so much as fined by the medical board in their respective state. In ranking those boards with the least number of physicians per state, Florida ranked dead last. Others included Wisconsin, Minnesota and South Carolina.

In the aforementioned case of the vacationing wife and mother who bled to death, the Florida Board of Medicine sent her doctor husband a letter about one year after her passing. The notice indicated the agency had investigated the doctor’s actions and “found no basis to file a complaint.” The husband, a physician himself, was dumbfounded, wondering aloud whether the board ever even reviewed the case.

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

Additional Resources:

Despite multiple malpractice payouts, doctors often keep practicing, Sept. 12, 2014, By Ben Eisler, Mark Strassmann, CBS News

More Blog Entries:

Buck v. Columbia Hospital Corp. – General Negligence Versus Medical Negligence, Oct. 1, 2014, Sarasota Medical Malpractice Lawyer Blog

Published on:

When semi-trailers are involved in highway accidents, the impact is often devastating. In many cases, the result is lifelong, permanent injuries and death. The sheer size of these vehicles, plus the long hours and intense deadlines faced by drivers, contribute to the danger. oldtruck1

But when it comes to receiving compensation for these injuries, the litigation process is often not as straightforward as one might hope. Much of this has to do with the fact that trucking companies have effectively been able to sidestep liability by subcontracting drivers, trailers and more. While trucking firms are generally liable for injuries caused by their employees, if the company can successfully assert the trucker was an “independent contractor,” it won’t have to cover damages.

This is why it’s so important for injury lawyers to be well-versed in many various aspects of the law – including even Florida employment law. Just because a company labels a driver as an independent contractor doesn’t necessarily make it so. An experienced attorney working on your behalf may be able to prove through circumstantial evidence that the label is improper and the company is in fact vicariously liable for the trucker’s negligence.

In the recent case of Crocker v. Morales-Santana, one trucking firm tried to use this strategy to avoid liability in a truck crash case, but was unsuccessful.

As our Tampa truck accident lawyers understand it, the North Dakota Supreme Court held that one company could be held vicariously liable, despite the claims of the trucker as an “independent contractor,” though the summary judgment in favor of a second defendant was affirmed.

According to court records, the plaintiff was a county sheriff who suffered serious injuries in the spring of 2009 when a semi-tractor and trailer struck a patrol car occupied by the plaintiff on the interstate. At the time, the sheriff was aiding a stranded motorist who was stuck on the side of the road in the midst of a winter storm.

According to the truck driver, he was operating the semi-tractor as an independent contractor of a tire company under the tire company’s federal motor carrier certificate of authority. The trailer, meanwhile, was owned by another company, based in Nebraska.

It was later revealed the tire company and the trailer owner entered a broker agreement in 2007 in which the trailer owner agreed to provide transportation services in interstate commerce to the tire company as part of a non-exclusive agreement. The tire company was required to maintain its federal motor carrier license, as well as liability and auto insurance for at least $1 million, and to indemnify the trailer owner in the event of a crash.

The tire company also contracted with several commercial truck drivers, including the one involved in this case, to drive the separately-owned trailers.

In the lawsuit, plaintiff first named the driver, the tire company and the trailer owner, asserting the latter two were both employers of the first and were therefore both vicariously liable per the doctrine of respondeat superior, as well as under a claim for a joint business venture.

The trailer owner’s motion for summary judgment was granted when the court found there was no contract between the driver and trailer owner.

Later at trial, the trucker was found 100 percent at-fault for the crash, and the tire company was found vicariously liable – even though the driver was labeled an independent contractor – because it significantly controlled the actions of the driver, which meant he could be classified as an employee. The court awarded $300,000 to the plaintiff. The amount might have been more had the wife’s loss of consortium claim stood, but she died while the action was pending.

The tire company did not appeal this judgment, and it was paid.

The court later affirmed the grant of summary judgment in favor of the trailer owner.

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

Additional Resources:

Crocker v. Morales-Santana, October 2014, North Dakota Supreme Court

More Blog Entries:

GEICO v. Rodriguez – Insurer to Pay Sanctions in Pedestrian Injury Claim, Sept. 23, 2014, Tampa Truck Accident Lawyer Blog

Published on:

Loved ones of those killed in work-related accidents are almost always going to be entitled to workers’ compensation death benefits. While this is held as the exclusive remedy for injured workers and their families, there may also be some instances where third-party negligence lawsuits may be appropriate. roofdeck

Identifying potential defendants in these situations, particularly when the worker died on a multi-employer work site, can be complex. Florida law is careful to relief general contractors of liability in these cases, so long as they had secured workers’ compensation coverage for subcontractors. However, there may be some exceptions, and it’s not always easy for grieving loved ones to know their options.

There may be certain statutory time limitations on these claims as well, so it’s critical to contact an experienced work injury lawyer as soon as possible after the accident.

The recent lawsuit of Gaytan v. Wal-Mart, weighed by the Nebraska Supreme Court, shows how these cases can take several twists and turns. This one has yet to reach its final conclusion, but the high court did partially reverse a lower court judgment, allowing the worker’s widow to continue her negligence case against a subcontractor.

As our Cape Coral workers’ compensation lawyers understand it, the claimant alleges the general contractor retained control over the use of certain safety equipment on the roof where the accident occurred.

The court in that state had previously held that when a general contractor retains control over an independent contractor’s work, the general contractor owes a duty to use reasonable care in taking measures to prevent worker injuries. In order to meet this threshold, the level of control must be “substantial,” and involve supervision of the work that caused injury, actual or constructive knowledge of the danger that caused injury and the opportunity to prevent the injury. The idea is an entity that controls the work should be responsible for making sure it’s done safely. In this regard, the court found no basis for which property owners should be treated differently than general contractors.

However, the court found evidence against the property owner in this case to be lacking.

According to court records, the retail chain store in 2008 hired a general contractor to oversee roof construction on a new building. That general contractor hired a subcontractor, who in turn hired an independent contractor. The worker in question worked for the independent contractor.

One morning shortly before noon, the worker was walking with a co-worker on the roof outside the controlled decking zone, where they were required to don personal protection equipment, such as harnesses with an attached cable or rope at all times. However, neither was wearing this protection. The decking sheet gave way, causing them both to fall about 25 feet. It was later discovered the temporary screws holding the sheet in place had been removed. One of those workers died as a result of the fall. His personal protection equipment, unused, was found nearby.

His widow sued both the property owner and the general contractor for negligence.

But while the court found evidence lacking to hold the property owner negligent, it did find evidence supporting the assertion that the general contractor, in control of the use of personal protection equipment on site, was negligent in failing to ensure everyone who was supposed to wear it did.

Further, the court noted that after the worker’s death, the Occupational Safety & Health Administration fined the general contractor because certain danger zones on the roof weren’t properly guarded with railing; he instead had used cones. Further, OSHA noted that while none of the general contractor’s own workers were exposed to risk, as the “controlling employer” on site, it had the responsibility to ensure overall safety and health on the site. That meant, in part, making sure all workers wore the personal protection equipment, which it solely provided.

For this reason, the state high court held, the worker’s widow may continue pursuit of her third-party lawsuit against the general contractor for wrongful death.

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

Additional Resources:

Gaytan v. Wal-Mart, Sept. 19, 2014, Nebraska Supreme Court

More Blog Entries:

Arvizu v. Heights Roofing Inc. – Culpable Negligence in Workplace Injuries, Sept. 16, 2014, Cape Coral Work Injury Lawyer Blog

Published on:

Florida’s Third District Court of Appeal recently reversed the criminal conviction of a man for vehicular homicide, finding that while his actions behind the wheel were careless – and possibly even negligent – they did not rise to the level of recklessness required to convict him of such a serious felony charge. suv1

The case highlights the fact that while a civil action and criminal action may involve the exact same set of facts, each can have very different outcomes. That’s because the two systems have differing standards of proof. In the criminal case, one must prove guilt of a certain crime beyond a reasonable doubt. In civil cases, however, there isn’t a “guilty” or “innocent.” It’s about negligence and liability. That means proving the defendant owed a duty to the plaintiff, the duty was breached and the breach proximately caused costly harm or injury to the plaintiff.

Individuals who are victims of careless drivers may seek justice in the form of ensuring a person spend time in jail or refrain from driving again. In some criminal cases, judges will even order restitution paid to the victim. But where the criminal system focuses on punishment of the accused, the civil system aims to restore the injured, to whatever extent that’s possible.

And this is why people injured in auto accidents involving drivers who acted criminally should also explore their options with an experienced Fort Myers car accident attorney.

In the recent case of Luzardo v. Florida, the facts that gave rise to the case occurred in May 2011 around 10 a.m., near the entrance of Gator Park, a tourist attraction on Tamiami Trail in Miami-Dade. Surveillance video at the park entrance indicated the morning was clear and sunny.

Defendant was spotted traveling eastbound in his sport utility vehicle at 84-miles-per-hour. The speed limit in that area is 55-miles-per-hour.

Traveling in the opposite direction was the alleged victim, a tourist form the United Kingdom, who was headed to the park with three others to take an airboat ride. She was operating a leased vehicle, and was unfamiliar with both the roads and the vehicle.

She spotted a parking space at the park and began to turn left. However, one of her passengers shouted about the defendant’s oncoming vehicle. She responded by applying her brakes in the middle of the eastbound lane. When the defendant realized the other driver was not going to complete her turn, he attempted to swerve around her, but he did not manage to do so successfully. His vehicle struck the other in the right rear passenger door, killing one of the four occupants inside.

The Florida Highway Patrol initially charged the other driver with non-criminal violation of right of way by turning left into oncoming traffic. However, a year later, the state changed its position, dismissed the non-criminal violation and charged the defendant with felonious operation of a motor vehicle in a reckless manner and vehicular homicide.

He was ultimately convicted.

However, as the appellate court noted, this was not the correct outcome because case law has established that excessive speed alone will not support a conviction for vehicular homicide pursuant to Florida Statute §782.071. The statute specifically states that neither carelessness or ordinary negligence is enough to sustain a felony conviction for vehicular homicide. Rather, it requires proof of other elements of reckless driving.

For this reason, the 3rd DCA reversed the criminal conviction.

However, that does not mean a civil action could not still proceed. Because the law in Florida does not bar recovery of damages due to comparative fault, it’s possible the driver who was struck could seek damages for injuries. Likewise, the family of the woman killed in the crash might be eligible from compensation from both parties.

While traveling 30-miles-per-hour over the speed limit resulting in or contributing to a death may not be grounds for a vehicular homicide conviction, but a strong case for negligence could be made.

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

Additional Resources:

Luzardo v. Florida, Oct. 1, 2014, Florida’s Third District Court of Appeal

More Blog Entries:

Williams v. GEICO – Auto Insurance Step-Down Provisions Challenged, Sept. 6, 2014, Fort Myers Car Accident Lawyer Blog

Published on:

In an increasing number of medical negligence lawsuits, plaintiffs are seeking to hold hospitals vicariously liable for the negligent actions of physicians and staffers. This is true in Florida also, despite the fact that Florida common law hasn’t formally recognized the broad duty on the part of modern hospitals to provide non-negligent medical care through physicians, nurses, staffers or contractors. ambulance

The concept is known as “non-delegable duty,” which is the principle that hospitals are responsible for the care given in its facilities, regardless of who actually delivers that care. Non-delegable duties usually arise out of an inherently dangerous activity or condition, but Florida has never defined medical or surgical care in this way. Therefore, unless the doctor or staffer is a direct employee of the hospital, the hospital generally isn’t liable for the care provided.

However, there are sometimes exceptions made under the theory of apparent agency. The theory of apparent agency is applicable when conduct by an agent causes another party to believe the agent is authorized to conduct business on behalf of the principle, regardless of whether that’s true. In the context of a hospital setting, it would mean that the conduct of a doctor or staffer caused the patient to believe he or she was authorized to conduct business on behalf of the hospital, even though he or she was in fact an independent contractor. Courts have allowed vicarious liability actions against hospitals on these grounds – most notably in the 2003 2nd DCA case of Roessler v. Novak.

Additionally, our Tampa medical malpractice attorneys know plaintiffs have used language in Chapter 395 of Florida Statutes to further their claim of vicarious liability of a hospital. The statute governs hospitals, and in part requires the Agency for Health Care Administration to adopt rules that make sure hospitals are operated according to consistent and acceptable standards. This was what plaintiffs in Wax v. Tenet Health System Hospitals relied upon their medical negligence claim, where the trial court ruled (and the 4th DCA affirmed) the duty of hospitals to ensure hospitals provide non-negligent anesthesia services to all patients undergoing surgery. The court in Wax agreed with plaintiff that because AHCA rules required hospitals to provide anesthesia services in compliance with AHCA rules to adhere to reasonable and fair minimum standards, the hospital was thus obligated to offer non-negligent services.

Plaintiffs have in several subsequent cases pushed to have the Wax ruling applied to other aspects of hospital operations, but there have yet been other Florida appellate opinions that have granted those requests.

Case law standards are continuing to develop on this front, and procedurally, claims of vicarious liability against hospitals are still more complex than those asserting simple negligence for a non-medical procedure.

Recently in New Mexico, the state supreme court reinstated a medical negligence lawsuit against a hospital for vicarious liability, after summary judgment was granted to defendant for alleged failure to adequately notify the defendant that one or more of its agents or employees was negligent. In Vaughan v. St. Vincent Hospital, a patient had come to the emergency room with abdominal pain. A test by a radiologist showed cancer, but that diagnosis was not properly communicated to the surgeon or the patient.

Patient’s cancer later progressed, and his prognosis is now poor. He filed a lawsuit against not just the radiologist, but the hospital for vicarious liability. The hospital argued the lawsuit should be dismissed because plaintiff hadn’t expressly pleaded “vicarious liability” with regard to its duty as the employer of the radiologist. The New Mexico Supreme Court found plaintiff’s pleading adequate, meaning the lawsuit will continue.

Because this area of law is continually evolving, both in Florida and across the country, it’s imperative for one filing a medical malpractice action to seek legal counsel from a firm with extensive experience and proven success.

To file a medical malpractice lawsuit in Tampa, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Vaughan v. St. Vincent Hospital, Sept. 18, 2014, New Mexico Supreme Court

More Blog Entries:

Hahn v. Walsh – Inmates Entitled to Adequate Medical Care, Sept. 2, 2014, Tampa Medical Malpractice Lawyer Blog

Published on:

An auto insurance policy is a contract, legally-binding, that outlines the scope of coverage for insureds and anyone involved in a crash with them. Courts give the language of these policies great weight in determining whether coverage is available, and if so, how much. Insurance companies are given much latitude in defining coverage amounts, exclusions and special conditions. keys1

However, there are situations in which the language in these policies fails to meet the strict statutory standards set forth for the insurance industry, and therefore the policy is void. For example, if there is ambiguity in a portion of the policy, the courts will decide in favor of the plaintiff.  Another is an over-broad expansion of an allowable exclusion. In other cases, courts have found policies to be void when they run counter to public policy.

These cases require the aid of an experienced attorney. One such case recently was recently before the California Court of Appeal, Fourth Appellate District, Division Three. In Mercury Casualty v. Chu, the question was whether the insurer improperly denied coverage to a student passenger/roommate of the driver on the basis of a “resident exclusion” that is common in auto policies. The court found that the exclusion as applied was over-broad and contrary to public policy.

Our Fort Myers car accident lawyers note the case stemmed from a 2008 accident involving a group of college students. According to court records, the insured (also the at-fault driver) was driving, his roommate in the passenger seat, when he turned left directly in front of another driver. The passenger suffered injury.

The at-fault driver’s policy covered his vehicle, and allowed for bodily injury limits of $15,000 per person and $30,000 per crash. The policy contained (as many do) a resident exclusion, which the insurance company argued barred coverage to the roommate because he resided in the same location as the driver.

The passenger filed a lawsuit against both drivers. The insurer informed the at-fault driver it would provide defense, but still asserted the roommate’s injuries were not covered under the policy. It also advised it would seek reimbursement of attorney fees and costs.

At trial, a jury awarded more than $333,000 to the injured passenger.

Soon after, the insurance company filed a complaint requesting declaratory relief with a court order affirming it was valid in denying coverage to the passenger, and seeking reimbursement for legal costs. The insured cross-claimed for bad faith, negligence and breach of contract, while the passenger filed a request to join that cross-claim.

The two testified prior to trial that they were born in Vietnam and had moved to the U.S. separately. They did not know each other well before becoming roommates for two years at a home owned by the driver’s aunt and uncle. They then shared another residence together with four other students, but largely kept to their own circle of friends.

The trial court granted summary judgment to the insurer, indicating the policy clearly and unambiguously excluded coverage to the roommate as a “resident of the same household.”

The insurer then sought reimbursement for $133,000 in legal fees.

Upon appeal, the appellate court noted that while resident restrictions had generally been upheld, with some exceptions, the purpose was to insulate insurers from collusive assertions of liability. Here, the insurer sought approval to extend this exclusion to non-relative residents. The court found no authority on which it based this exclusion of a large group of people solely on their residency status. Further, the court found no legal basis to assume that insurers face the same risk of fraudulent lawsuits when people simply inhabit the same dwelling. College roommates in particular are often complete strangers when they move in together.

Therefore, the interpretation of the insurer was overly-broad and also contrary to public policy.

Because the insurer must no provide coverage, it is not entitled to reimbursement for defense costs, which it was obligated to provide per the terms of the policy for covered accidents.

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

Additional Resources:

Mercury Casualty v. Chu, Sept. 24, 2014, California Court of Appeal, Fourth Appellate District, Division Three

More Blog Entries:

Williams v. GEICO – Auto Insurance Step-Down Provisions Challenged, Sept. 6, 2014, Fort Myers Car Accident Lawyer Blog

Published on:

Courts in general are reticent to hold a company or person accountable for the criminal wrongdoing of someone else. However, there are some exceptions in civil law, most notably with regard to premises liability. In those cases, a property owner can be held liable for injuries sustained in a violent third-party attack on their land if they knew such danger was likely and failed to take steps to mitigate it. laptopwork1

What we haven’t seen – until now – is the assertion that same kind of duty exists to operators of online “property” or websites. It’s unclear how far the courts or legislators may take this duty, but the recent ruling in Doe v. Internet Brands, Inc. is a significant decision in this regard.

The case involves a social networking site geared toward connecting aspiring models to professionals within the industry. When one woman was lured to Miami by two men under the guise of an audition, she was drugged and raped and the encounter was filmed. She later learned the same thing had happened to other women at the hands of the same two men, and further, those who ran the website were aware of this specific threat and did nothing to warn users.

Our Fort Myers personal injury lawyers understand that when she filed a lawsuit, defendants sought to dismiss the case under the Communications Decency Act, codified in 47 U.S.C. 230(c). This statute has been cited in previous cases where plaintiffs sought to hold website providers, such as Craigslist.com or Backpage.com,accountable. In part, this law holds that a website owner/operator is a publisher or speaker of information, and as such, usually can’t be held liable for material posted on that site by somebody else.

So for example, when individuals have posted phony profiles on Craigslist with the underlying motive of robbery, a victim usually won’t have grounds to sue the website for failure to properly vet the listing.

Initially, the trial court agreed the Communications Decency Act applied to the Doe case, and granted defendants’ motion to dismiss.

On appeal, the U.S. Court of Appeals for the Ninth Circuit reversed and remanded, finding the law did not preclude the claim because plaintiff wasn’t seeking to hold defendant responsible as the publisher and speaker of information, Rather, she sought to hold the site responsible for failure to warn.

Although the court did not rule on the viability of that claim, it did find the CDA did not preclude her from proceeding with her lawsuit.

According to court records, the two Miami men (who were later arrested, convicted and sentenced to life in prison) were using the website as a means to identify targets for a rape scheme as early as 2006. They did not post their own profiles, and instead browsed the profiles of models and then used that to contact potential victims by posing as talent scouts.

The defendant in Doe didn’t purchase the site until 2008. It owns approximately 100 other websites as well. At the time of purchase, the previous owners were reportedly aware of this scheme, as several women had already fallen victim to it. Defendant learned of it soon after purchase, and even filed a lawsuit against the previous owner for not disclosing the potential liability stemming from these acts prior to sale.

And yet, users were not made aware of the problem, and the two men out of Miami continued to use the site to perpetuate their criminal acts. The attack that led to this lawsuit happened in February 2011.

California law governs here, as that is where the website is based. Similar to the standard set in Florida, California law imposes a duty to warn a potential victim of third party harm when a person or company has a “special relationship to either the person whose conduct needs to be controlled or to the foreseeable victim of that conduct.”

The rape victim in this case asserts the website had a duty to warn her, and the failure to do so led to her becoming a victim of sexual assault. Following the Ninth Circuit’s review, she is not permitted to proceed with her claim, which injury lawyers across the country will undoubtedly be watching closely for precedent.

Fort Myers personal injury lawyers Chalik & Chalik can be reached at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Doe v. Internet Brands, Inc. , Sept. 17, 2014, U.S. Court of Appeals for the Ninth Circuit

More Blog Entries:

Williams v. GEICO – Auto Insurance Step-Down Provisions Challenged, Sept. 16, 2014, Fort Myers Injury Lawyer Blog

Published on:

When an insurance policy is written such that provisions may be interpreted in more than one way, Florida law requires the interpretation favor the insured.

This is true whether we’re talking about auto insurance or homeowner’s insurance. Recently, the issue was central to the case of Heylin v. Gulfstream Property and Casualty Insurance Co., where a man was suing a homeowner for negligent supervision of his 17-year-old son, who reportedly committed battery on the plaintiff. guncloseup

The question was whether a homeowners’ insurance policy provided liability coverage for a claim of negligent supervision in the underlying intentional tort. The insurer argued intentional torts weren’t covered under the policy, and therefore it had no duty to indemnify the defendant in the underlying lawsuit. However, plaintiff argued the severability clause was ambiguous, and therefore coverage should be rendered.

Although a trial court granted declaratory judgment to the insurer (not a named defendant in the underlying tort), Florida’s Fifth Circuit Court of Appeal reversed, finding language in the severability clause almost identical to an insurance clause in Premier Insurance Co. v. Adams, where the court decided in 1994 the language was ambiguous and therefore the homeowner was entitled to coverage.

Cape Coral injury attorneys know that an allegation of negligent supervision in tort actions often involve employer/employee relationships, but they can sometimes assert harm against the child. For example, if a school fails to protect a child from entering heavy traffic and injury results, negligent supervision may be alleged. Similarly, if an adult fails to properly secure firearms and a child is hurt as a result, a personal injury action alleging negligent supervision by the child’s parents may be brought.

But negligent supervision can also be interpreted in the context of “failure to control.” That is, the adult knew or had reason to know the child had to be controlled (or protected), failed to do so and another person was injured as a direct result.

Although courts won’t generally hold third parties liable for criminal actions of someone else, there are exceptions, and negligent supervision of a minor who causes injury is one of those. In the Heylin case, we don’t know the exact details of the lawsuit, except that the 17-year-old allegedly committed battery against the plaintiff, leading to serious injury and plaintiff asserts negligence against the teen, and also names the parents as defendants for negligent supervision of their child.

In cases where injury occurs on private property, homeowners’ insurance may provide coverage to the victim. Although the insurer in Heylin wasn’t named as a defendant, it sought judgment that it wasn’t required to provide a defense or coverage to the defendant parents/its insured.

In its decision, the trial court cited a similar case from 2003, Hrynkiw v. Allstate Floridian Ins. Co. There, defendant’s minor son allegedly committed intentional battery on plaintiff when he took a pistol belonging to his parents, pointed it at plaintiff’s head at close range and pulled the trigger. Plaintiff survived, but suffered serious injury. Plaintiff alleged he was entitled to recover damages from the parents for failing to safely store the gun in their home and exercise parental control over their son (negligent supervision), given they knew he was on probation for violent behavior against someone else.

When defendants sought coverage from their insurer for their defense, the insurer denied coverage because the underlying tort stemmed from an intentional act. There, the court ruled in favor of the insurer because there was a joint-obligation clause.

However, there was no such language in the present case, and therefore the Fifth District held that decision was not controlling. Rather, the severability clause and intentional act exclusion create ambiguity, which means the court was compelled to rule in favor of the insured as far as coverage.

If you have been a victim of intentional personal injury, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040 to learn more about how we can help.

Additional Resources:

Heylin v. Gulfstream Property and Casualty Insurance Co., Sept. 19, 2014, Florida’s Fifth District Court of Appeal

More Blog Entries:

GEICO v. Rodriguez – Insurer to Pay Sanctions in Pedestrian Injury Claim, Sept. 23, 2014, Cape Coral Personal Injury Lawyer

Published on:

Drivers by the hundreds in Florida are reporting a serious vehicle defect that impairs vision and causes a safety hazard to them and others who share the road: Melting dashboards.cardashboard

Apparently, heat and sunlight (a constant, particularly in South Florida) can result in dashboards that become sticky, shiny and cracked to the point that driving may be hazardous. Manufacturers insist the problem is isolated, but hundreds of complaints have collectively been issued to the makers of the cars, as well as the National Highway Traffic Safety Administration and several other consumer safety advocacy centers.

Beyond being a simple annoyance, drivers say the defect puts them at risk of involvement in a car accident because it makes seeing very difficult, especially in afternoon. No recall has yet been issued, as that usually takes  report of a death or at least an accident. However, drivers are pushing for results in another way: A class action lawsuit has been filed, and we expect further litigation until auto manufacturers act to address this issue.

As our Tampa auto accident attorneys understand it, the lawsuit sites numerous examples of complaints dating back several years, specifically against Toyota, Lexus, Mazda and Nissan dealers. Some owners have indicated automakers have offered to pay half the cost of replacing the dashboard. But there are two problems: One is there is little assurance this will permanently fix the problem, particularly if the manufacturers plan to use the same provider of that part. Secondly, replacement of this part can run sometimes $2,400 or more. So by splitting the cost, the customer still has to pay $1,200 or more – for a vehicle defect they didn’t cause and is potentially very dangerous.

Several Florida media outlets have begun putting pressure on manufacturers and government safety regulators as well. WPTV-Channel 5, the NBC affiliate in West Palm Beach, first conducted an investigation in April, and said since then, complaints about the issue have quadrupled.

Of the complaints made to the NHTSA, one man said his shiny, sticky dashboard made it difficult to see pedestrians. Another in Pembroke Pines wrote the glare led him to  veer off the road and into an embankment. In Orlando, a motorist reported he was involved in a crash there due to glare from a melting dashboard. However, no one was injured. Two others in the Miami-area reported they crashed too.

Other drivers have simply reported the dashboard feels “wet like glue.”

At the Center for Auto Safety, officials are pushing for an official recall. Although government regulators have been quoted as saying the data thus far does not reflect a safety defect trend warranting further action, consumers are hoping the increase in complaints will change that position. They don’t want to wait until someone is killed or seriously injured for someone to take action.

As one driver was quoted as saying, “It would be nice for once to see an auto manufacturer own up to it, fix it.  Don’t wait for people to get hurt. Just fix it.”

Unfortunately, that hasn’t happened yet – and we’re not holding our breath that it will.

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

Additional Resources:

Melting dashboards cause 4 Florida crashes, according to government data, Sept. 3, 2014, By Jenn Strathman, WPTV-Channel 5

Hundreds of drivers say their dashboards are melting and car makers are not issuing a recall, June 16, 2014, By Jackie Callaway, ABC Action News, WFTS Tampa Bay

More Blog Entries:

GEICO v. Rodriguez – Insurer to Pay Sanctions in Pedestrian Injury Claim, Sept. 23, 2014, Tampa Car Accident Lawyer Blog

 

Published on:

Most lawsuits stemming from wrongdoing within the confines of a hospital or other medical treatment center are going to be filed as medical malpractice claims. These lawsuits assert a medical professional, in the course of carrying out his or her professional duties, failed to adhere to the acceptable standard of care for his or her field.hospitalroom

Our Naples injury lawyers know medical malpractice claims demand a higher level of proof – which includes testimony from an expert witness – even before the case makes it to the trial phase. Claims of general negligence, meanwhile, require only that plaintiff show a duty of care was breached and injury resulted from that breach.

Not every injury that occurs in a hospital is the result of medical malpractice, even when it involves a patient. Sometimes, injuries are merely the result of general negligence, and the higher standards of proof are not necessary. Sometimes, this determination is clear-cut. Other times, it isn’t. The recent case of Buck v. Columbia Hospital Corporation of South Broward is an example of the latter.

Recently, Florida’s 4th District Court of Appeal ruled the claim was one of medical negligence, as opposed to simple negligence, as plaintiff alleged. Therefore, the court affirmed dismissal of the case on the grounds plaintiff failed to meet the necessary criteria for a medical negligence claim. According to court records, plaintiff filed the lawsuit as personal representative of a decedent, alleging wrongful death for treatment received in May 2012. The complaint alleged patient was brought to the hospital and admitted for complications related to chronic obstructive pulmonary disease, a condition affecting the lungs.

Two days into her hospital stay, patient was slated to undergo x-rays, and she was transported from her room to the floor where radiology exams were conducted.

Before the x-rays were taken, hospital technicians moved the patient from a gurney onto a table. As they did so, they dropped the patient hard onto the table. The result was she sustained a lumbar spine fracture.

The patient was elderly and had a series of ailments. Because of this, the options for treatment of her broken back were limited. Her overall condition declined rapidly, and she died not long after.

A relative of the woman sued the hospital. Defendant hospital moved to dismiss the complaint on grounds it failed to comply with the pre-lawsuit requirements laid forth in Florida Statute 766.106, which outlines the burden of proof necessary for claims arising from medical negligence.

Plaintiff argued the statute was inapplicable because the complaint arose from general negligence, not medical negligence. The trial court disagreed, and granted defendant’s motion to dismiss. Plaintiff appealed.

The appellate court noted the key to making a differentiation was whether the lawsuit arose out of medical diagnosis, treatment or care. This was the standard set forth in Stubbs v. Surgi-Staff, Inc., by the same court in 2012. Still, the Florida Supreme Court has held pre-lawsuit screening procedures should generally be read in a way that favors court access.

In this case, the injuries were sustained while patient was in the hospital and during the course of treatment, while being transported from gurney to x-ray table by hospital employees. As such, the court indicated hospital employees or agents were engaged in rendering medical care or services as part of a medical procedure. Therefore, the court found, this was a case of medical negligence, not simple negligence.

Call the Naples medical malpractice attorneys at Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Buck v. Columbia Hospital Corporation of South Broward , Sept. 10, 2014, Florida’s 4th District Court of Appeal

More Blog Entries:

Shapria v. Christiana Care Health – Medical Malpractice Based on Lack of Informed Consent, Aug. 31, 2014, Naples Medical Malpractice Lawyer Blog

Contact Information