South Florida Personal Injury Lawyers Blog

Settlement Offers in Florida

Published on: September 24, 2013 | by Friedman Rodman Frank & Estrada, P.A.

Often plaintiffs must work towards settlement not only with a defense attorney, but also an insurer. One strategic area during a lawsuit is settlement offers. There can be an advantage to trying to settle early. However, offers must be extremely specific. This is why it is critical to secure the help of an experienced attorney before communicating with the insurer for the other side.

In a recent case, a defendant appealed the final judgment entered in favor of a wrongful death plaintiff. The plaintiff and her minor child were in a car when they were rear-ended by the defendant’s car. The impact pushed the plaintiff’s car into a moving train. This caused severe injuries to the plaintiff and killed her son.

The plaintiff’s attorney contacted the defendant’s insurer and offered to settle with the policy limits. The offer had a time limit for accepting and included a reference to restrictions on the nature of the release. The insurer responded to the offer, including some draft checks and proposed releases. The plaintiff’s attorney told the insurer that the releases violated the terms of the offer and that it would therefore consider the response a rejection and counteroffer.

What Happens if a Florida Trial Judge Makes a Legal Error in Granting a New Trial?

Published on: September 19, 2013 | by Friedman Rodman Frank & Estrada, P.A.

Sometimes, even after all the hours of trial preparation, a trial, and jury deliberation, a new trial is appropriate. In a recent Florida Supreme Court case, the court considered the automobile accident injuries of a man (the plaintiff) who was injured when rear-ended by a drunk driver (the defendant).

The plaintiff claimed that he suffered neck pain that led to him needing a cervical spinal fusion surgery. The defendant did not contest liability, but he did claim that the accident didn’t cause the plaintiff’s injuries. He also defended on the grounds that the plaintiff had preexisting back pain and spinal degeneration, plus a previous surgery and car accident.

However, the medical experts agreed that the accident was partly the reason for the neck injury. A pain specialist testified on the plaintiff’s behalf that he would never be free. A neurologist testified there wasn’t necessarily a connection between the amount of damage sustained by a car and a plaintiff’s injuries.

He testified as to a connection between the neck injury and the accident, but found it difficult to correlate the plaintiff’s lower back pain with the accident. A neurosurgeon testified that smoking was a risk factor for spinal degeneration, but still opined the accident caused the plaintiff’s neck problems.

Constitutional Considerations in Florida Punitive Damages

Published on: September 17, 2013 | by Friedman Rodman Frank & Estrada, P.A.

Both compensatory and punitive damages may be awarded in Florida personal injury cases. Punitive damages receive a lot of attention in the news because they may be quite high in certain circumstances. They may be particularly high where the defendant is a multi-million dollar corporation and the defendant’s conduct is malicious, wanton or outrageous.

Recently, in a Florida appellate case, the tobacco company argued, among other things, that the punitive damages were both constitutionally excessive and tainted by the plaintiff’s reference to other tobacco companies.

The plaintiff in the case was the wife and personal representative of a deceased person who had died from lung cancer as a result of smoking. She filed suit against the tobacco company that had made his cigarettes, claiming negligence, strict liability, conspiracy to commit fraud and fraudulent concealment.

Independent Medical Examinations in Florida Personal Injury

Published on: September 12, 2013 | by Friedman Rodman Frank & Estrada, P.A.

In a Florida personal injury lawsuit, both sides conduct investigations in a phase called “pre-trial discovery.” Discovery simplifies the issues, eliminates surprise and encourages fair settlements. Among the tools for discovery are interrogatories, requests for admission, depositions, subpoenas of medical records and independent medical examinations.

A defendant is usually entitled to have a doctor of his or her choice examine a plaintiff where a plaintiff is claiming a physical or emotional condition. That doctor will have access to medical records in addition to the medical examination in order to render an expert opinion at deposition and at trial. Usually where the parties disagree about a trial court’s discovery ruling, the issue can be taken up on appeal. However, sometimes a plaintiff or defendant may petition the appellate court to review the trial court’s decision before the case is over.

In a recent case, the defendant vehicle hit a minor in Florida, fracturing his ankle. The minor had a surgery. His mother subsequently filed a suit against the man for negligence. The defendant requested a pediatric orthopedic examination. A first independent medical examination (IME) was conducted. The minor had a second ankle surgery.

Work that Creates Exceptional Risk and Causes Death in Florida

Published on: September 10, 2013 | by Friedman Rodman Frank & Estrada, P.A.

Usually a Florida landowner or an employer of an independent contractor is not liable for negligent acts of the independent contractor. There are exceptions, among them an exception for work that creates exceptional risks.

In a wrongful death case earlier this year, a large tractor was moving along the interstate in the fast lane at less than 30 miles per hour in the dark. A driver was one of several cars in a group driving close together in the fast lane. The fourth or fifth car of the group was a state trooper. The trooper observed that the first car hit the brakes and a pickup pushed the second or third car into the right lane.

This second or third car was a car operated by a man named Smyth. He crashed into a tank truck carrying fuel–the driver of the truck didn’t realize Smyth had hit him and traveled with the car. The fuel tank caught fire and Smyth died.

Who Qualifies as a Medical Expert in Florida Medical Malpractice?

Published on: September 5, 2013 | by Friedman Rodman Frank & Estrada, P.A.

In Florida medical malpractice cases, a plaintiff must conduct an investigation among experts to see if there are reasonable grounds to believe a particular medical professional was negligent and that the negligence led to his or her injury. If so, the plaintiff must notify each defendant of the intent to file suit against them for medical negligence, and include a written “medical expert opinion” from a medical expert.

If the defendant is a specialist, the medical expert chosen by the plaintiff must be one who is in the same specialty as the provider and has experience treating similar types of patients. The concept of “similar specialty” has been contentious in Florida medical malpractice law. For example, is an ER physician qualified to testify against an orthopedic surgeon? May a pulmonologist testify against an ER doctor?

In a recent case, a plaintiff filed a lawsuit against her ophthalmologist and surgical center after getting a lower eyelid surgery. She claimed that she’d gotten a bacterial infection during the surgery, which led to her needing more surgery, in spite of which her eye was disfigured.

When Must a Plaintiff’s Attorney Recuse Him or Herself in a Florida Trip and Fall Case?

Published on: September 3, 2013 | by Friedman Rodman Frank & Estrada, P.A.

Trip and fall cases can be difficult to prove in Florida. A critical aspect of preparing a case is interviewing witnesses, including the property owner or manager. Usually an investigator does this investigation alone. Sometimes, an attorney accompanies the investigator, but this can raise certain risks, such as the risk that the attorney will become a witness. This is particularly likely in multi-party personal injury cases.

In a recent trip and fall case, a Florida appellate court considered whether an attorney had to be disqualified after becoming a witness. Subsequent to the initial appellate ruling, the appellate court granted a motion for rehearing and substituted a different opinion.

In the case, a plaintiff sued a store for personal injuries after tripping and falling near the store entrance in a shopping center. A guardrail had been taken away from a handicap access ramp, leaving a hole that the plaintiff tripped on. Her tibia and shoulder were broken, requiring surgery.

What is Considered a Fraud Upon the Court in Florida Personal Injury Lawsuits?

Published on: August 28, 2013 | by Friedman Rodman Frank & Estrada, P.A.

Claiming your opponent has committed a fraud on the court is a serious accusation in Florida lawsuits. In a recent car accident case, the plaintiff sued the defendants alleging permanent injuries that included aggravation of a previously existing condition. During his deposition, he testified that he had previously been injured when two glass plates landed on his face at work. He testified that the resulting injuries did not affect his back. He also claimed that he hadn’t complained about back pain to a physician who had treated him for that accident.

In responses to written interrogatories, he claimed there that as a result of a 2004 car accident, he had hurt various body parts including his lower back. However, when asked in written interrogatories whether any part of his body that he claimed was injured in the latest car accident had been injured before, he only listed his neck and head injuries from the work accident. He claimed the same treating physician had treated him for both car accidents.

The defense subpoenaed the physician’s records. The records showed that the plaintiff may have complained about back injury before the second car accident. The doctor had noted that the plaintiff’s lumbosacral spine showed a reduced range of motion and made other notations on just a couple of occasions indicating that the plaintiff had complaints about his back. The final report made no mention of spine pain.

Can a Florida Hospital Be Liable for Negligent Acts by Its Employees?

Published on: August 23, 2013 | by Friedman Rodman Frank & Estrada, P.A.

“Respondeat superior” is a theory that may be asserted in personal injury cases in many jurisdictions, including Florida. It makes employers liable when their employees commit wrongful acts within the course and scope of their employment. A recent case illustrates how this type of theory can be pursued in a medical malpractice context. Respondeat superior cases differ from direct liability cases that are brought against employees of hospitals like doctors, nursing staff, or administrative staff.

In the case, parents took their young daughter to an ER twice in one day when she had an acute asthma attack. On both visits, the staff wouldn’t treat her. They would only treat her when the ambulance brought her a third time. The parents filed a lawsuit against the hospital, claiming it was liable for its staff’s failure to treat their daughter.

The hospital asserted that the claim was a medical malpractice claim. In Florida, medical malpractice claims are subject to a presuit requirement, which was not met in this case. The hospital’s argument was rejected.

Duty to Preserve Evidence in Florida Premises Liability Cases

Published on: August 20, 2013 | by Friedman Rodman Frank & Estrada, P.A.

After you’re hurt in an accident, you might assume that the people who caused your injury will behave ethically, keeping any evidence that you may need at trial. Unfortunately, this is not always the case. The insurance carrier for a store, hospital or other entity is not on your side. Its duty is to its insured, not to you. That’s why it is critical to consult with a personal injury attorney immediately after an accident if you believe someone else might have been at fault.

The Florida Second District Court of Appeal considered the duty to preserve evidence in Florida premises liability cases. The ruling reached by the court was very unfavorable to plaintiffs and illustrates the importance of proactively retaining an attorney as soon as you are aware of injuries.

In the case, a woman slipped and fell in a store, shattering her wrist. She had two surgeries, but experts believed more surgeries would be needed later. Within a week of the incident, the woman and the store’s insurance carrier talked several times and she gave an insurance agent a statement. She told the agent she slipped two steps beyond the front door mat, which was wet from rain. She also told the agent how much time she missed from work and notified the agent of her need for surgery.