South Florida Personal Injury Lawyers Blog

New Florida PIP Law Limits Time and Medical Options for Those Injured In a Car Accident

Published on: February 13, 2013 | by Friedman Rodman Frank & Estrada, P.A.

Four children and one adult driver had to be taken to the hospital near Miami, Florida after a driver crossed the center-line and hit their shuttle van head-on. Two children were ejected from the vehicle, but were in stable condition, one child’s condition was unknown, and the fourth child and driver remained uninjured. The driver claimed he was having a heart attack, but that was subsequently shown to be untrue.

While the victims in this recent accident quickly sought needed medical attention, other insured Florida car accident victims may not think they need, or can afford, medical services. The latest version of the Florida Motor Vehicle No-Fault statute, recently made effective at the beginning of 2013, substantially changed the laws regulating Personal Injury Protection (PIP). Foremost among the changes, is the mandate for those injured to receive initial services and care within 14 days of the accident.

Follow-up care is allowed, but must qualify under the statute. The new version of the PIP guidelines delineates the medical care providers that can perform the initial evaluation and treatment. Massage therapists and acupuncturists were explicitly excluded. Once that treatment is administered, then follow-up care related to the underlying condition is permitted.

The amount of coverage you receive under Florida’s new PIP laws will depend on whether the condition is considered an “emergency medical condition”. If it is, then you can receive up to $10,000. If not, then the maximum coverage is $2500. An “emergency medical condition” must be so serious that without immediate care, serious jeopardy to the patient’s health, serious impairment to bodily functions, or serious dysfunction of a body part or organ will occur. The previous statutory coverage also went up to $10,000, but allowed up to 80% of all reasonable expenses for medically necessary services, 60% of disability for any loss of gross income and earning capacity per individual from inability to work that was proximately caused by the accident, and 100% of replacement services like lawn care or childcare.

Injured Florida Worker Denied Opportunity to Hold Negligent Employer Liable

Published on: February 7, 2013 | by Friedman Rodman Frank & Estrada, P.A.

Florida’s Fourth District Court of Appeals recently echoed a lower court’s ruling that prevented an injured Florida man from holding his employer directly liable for his construction accident injuries. Florida grants immunity to employers since employees are covered under mandatory workers’ compensation insurance. Workers cannot pursue personal injury claims against the employer unless they fall under the narrowly tailored exception. In this case, the court maintained that the worker did not show the employer knew of the danger from prior occurrences, that he himself was unaware of any dangers, and that the employer actively misled the worker of the project’s safety.

The worker was employed by a construction contractor who was installing a nine-ton wall on the day of the accident. Safe installation of that size of wall depends heavily on favorable weather conditions and cannot be performed if the wind speeds are too high. Prior to the accident, the installation had been delayed due to high winds over 20 mph. On the morning of the accident the winds were determined to be safe enough to proceed. Testimony from the general foreman and one of the crane operators differed from each other. The foreman testified that he radioed to the crew and informed them of 16-18 mph winds, but the crane operator recalled being informed the winds were 12-15 mph. The injured worker provided conflicting accounts, some indicating that he was concern with the windy condition, but didn’t know what it was and nonetheless relied on wind speed confirmation from the general foreman.

The Court looked to the last 13 years of case law and legislative action surrounding the immunity exception and pointed out that no employee has been able to show with virtual certainty that the employer committed an intentional tort. Since the Court had to view the case in a light most favorable to the employer, the employer only had to show that none of the elements of the immunity exception existed. The Court conceded that even if they accepted the worker’s version of the installation, the employer would only be grossly negligent and not liable for an intentional act.

Workers’ compensation benefits are determined by a calculation that factors in the worker’s impairment rating, the regular wage of the worker at the time of the accident, and the cost of medical care and related costs, among other things. Benefits are calculated with statutorily-created multipliers, and may be capped at 104 weeks. The amount of compensation can differ greatly depending on whether the worker is deemed temporarily disabled or permanently disabled.

A personal injury claim of the same or similar matter will likely calculate the same types of costs like medical care and lost wages. However, unlike worker’s compensation, the negligent party may also have to pay for pain and suffering or punitive damages, depending on the level of egregious behavior.

Evaluating Construction Accidents in South Florida After 2013 Crane Collapse

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

At the beginning of this year, a crane collapsed in the Queens borough of New York City, injuring seven people. The crane greatly damaged the building project, but left the other completed part of the residential building complex intact. The crane belongs to New York Crane and Equipment Company, owned by Jimmy Lomma, who was recently acquitted for manslaughter following the deaths of two people caused by one of his cranes in 2008.

The crane operator and contractor were both recently cited for five violations in the collapse. The Buildings Department pointed to the operator’s attempt to lift more than double the acceptable load. The operator also couldn’t see what was being lifted and moved materials outside of the approved zone. This contrasts with the recent construction accident at South Florida’s, Miami Dade College, where the cause of the collapse is still unknown and under an investigation led by OSHA (Occupational Safety & Health Administration).

The college was forced to close their West campus to ensure the safety of the students after four workers were killed. Many things could have caused or contributed to the multi-level collapse of the garage floors. Investigators began their assessment with whether it was the construction procedures that were faulty, or if it was something defective in the design that led to the collapse. Other concern include whether an adequate system of checks and balances was used as the structure was built and whether the plans themselves were confusing, thus leading to defective construction.

Construction accidents are tragic, complex events resulting in either serious injury or death. As the South Florida investigation shows, it can take awhile to even figure out what occurred and why it occurred. A 2012 appellate case from the New York Court of Appeals (Admiral Ins. Co. v Joy Contrs., Inc., NY Slip Op 04670, 2012) assessed whether the insurance company of the ‘excess policy’ for additional insured under the comprehensive general liability policy was obligated to pay based on the contractual language of the policy that excluded residential buildings.

A tower crane had also collapsed and killed seven people, injured many more, and damaged several surrounding buildings on top of the one under construction. The Joy Construction Company was insured with standard comprehensive general liability coverage and had the excess policy through Admiral Insurance, which began to submit letters to Joy denying any obligation to indemnify for several reasons. One of Admiral’s claims before the appellate body was that they weren’t liable because the building was for residential use, and that type of building was excluded from coverage. They also focused on whether they were obligated to cover entities who were alleged to have misrepresented themselves or were structured as an LLC. Ultimately, the Court of Appeals thought the case should move forward as there were issues of material fact whether the building was a ‘mixed use’ unit, thus not exclusively residential and excluded from Admiral’s CGL coverage; and that the LLC status of the companies seeking indemnification didn’t bar coverage.

Fatal South Florida Hit-and-Run Leaves Many Questions, Few Answers

Published on: January 30, 2013 | by Friedman Rodman Frank & Estrada, P.A.

The Miami Herald recounted a horrific accident that took the life of a Miami father, killed by a suspected drunk driver. One witness saw the victim being struck and thrown into the air, but still had the wherewithal to call the police AND follow the alleged offender’s car (despite attempts to throw the witness off). The victim’s family will never be the same as they grapple with the shock, horror, and grief from this tragic death.

Sudden loss of a loved one or witnessing a terrible death has an unimaginable impact on one’s life. No subsequent actions, including verdicts in the justice system, can ever replace a person or erase the event from history. Sometimes though, in the midst of a crisis, you need help to guide you through the bureaucratic and financial consequences of such a mired circumstance. Friedman, Rodman & Frank have aided others in their time of need, whether it was applying for social security benefit or making the other party take responsibility for the actions through a civil action.

4280 pedestrians were killed in 2010, according the National Highway Traffic Safety Administration. In Florida, between 2006-2010, 5,737 people died from an alcohol-related crash, and 15,635 were injured. The consistent number between 2006-2008 caused government officials to create the Florida Impaired Driving Coalition to examine what could be done to lower the number of injured and killed Floridians. They plan to reduce the 5-year average by 5% each year by improving DUI enforcement and prosecution, increasing DUI prevention training, and enhancing DUI impairment legislation.

With the rising accessibility of mobile devices, distracted driving has also become a concern for Florida’s Department of Transportation. The 2012 Strategic Highway Safety Plan chose to focus on distracted driving because 5,474 people were killed and 448,000 were injured as a result of distracted driving. A Georgia man was recently killed in Florida after he hit a distracted driver’s vehicle left in the middle of the highway. The distracted driver dropped her cell phone and attempted to pick it up, while driving. She flipped her car and exited the vehicle to call 911. The man hit her car, left his vehicle, and then was hit by an on-coming semi-truck.

While mobile phone use has been headline driving news, there are many other ways a driver can become distracted and cause an accident injury or death. Fatigue has been shown to be as large of an impairment as alcohol intoxication. Florida instituted the “Ronshay Dugans Act“, which dedicates the first week of September to educating law enforcement and the public about the hazards of driving while tired. Other educational programs and initiatives like “Put it Down” work to educate the public to change hazardous habits like texting while driving.

Costa Concordia Wreck Leads to New Safety Policies

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

The tragic wreck that killed 32 passengers and crew off the coast of Giglio, Italy, has led the cruise industry to create ten new safety policies. The main change is for passengers to undergo “muster drills”, or passenger emergency drills, before the boat leaves the dock, as opposed to within 24 hours of departure.

In 2011 there were 922,491 total vessels registered in Florida. 742 boat accidents were reported to the Florida Fish and Wildlife Conservation Commission. If you have been injured in a boating accident, whether it was a cruise ship or privately owned boat, contact the Florida maritime lawyers at Friedman Rodman Frank & Estrada, P.A. They have taken on several Florida-based cruise ship companies for injuries that have happened on and off board, and are here to help you, even if you live elsewhere.

The amount of chaos and confusion that resulted from the Costa Corcordia captain’s negligence is overwhelming. Passengers and affected businesses have filed suit against Costa Crociere’s parent company, Carnival Corp., which is based in Miami, Florida. Some have run into logistical problems, as many have already been turned away saying that the only forum available to file suit is in Italy. Carnival Corp., in turn, has alleged in other related civil suit documents that the passengers’ injuries are partially or wholly to blame due to their own negligence.

Carnival Corp., has had a large part in the history of forum clauses – clauses often printed on the back of tickets that says the purchaser agrees to settle a dispute in a forum that the ticket issuer has listed. In Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 (1990), the U.S. Supreme Court ruled in favor of forum clauses that are not obtained by fraud or overreaching. In the underlying case, a couple from Washington state bought tickets to a cruise from Carnival Corp., based in Florida, that started in California and ended in Mexico. The wife sustained injuries when she slipped and fell on a deck mat while the boat was at sea off the coast of Mexico. The couple filed suit in her home state, and Carnival claimed that, per the forum clause, they had to file suit in Florida. The couple countered that they were physically and financially incapable of filing suit in Florida.

The lower, appellate court sided with the couple, agreeing that the couple would be denied their day in court, given their limitations, and that the forum clause was not “freely bargained for”. The Supreme Court disagreed, saying that it was a standard commercial clause, that Carnival Cruise Lines has the right to limit the forum for suit, and that this particular clause did not appear to discourage cruise passengers from pursuing legitimate claims. They did note, however, that all forum clauses are subject to scrutiny and should be fundamentally fair.

Two Florida CVS Pharmacies Have Controlled Substance License Revoked

Published on: January 22, 2013 | by Friedman Rodman Frank & Estrada, P.A.

The U.S. Drug Enforcement Agency spent 2012 cracking down on entities they felt enhanced prescription drug abuse, including two CVS pharmacies near Orlando. Narcotic drug abuse often leads to serious injuries or death. Pharmacies have a responsibility to handle the drugs they prescribe with professional care. This can range from ensuring individual attention to a patient filling multiple prescriptions for narcotics in a short period of time, or avoiding an alarming number of pain-killer prescriptions that contribute to illegal sale and use.

Pharmacists are the gate keepers to safe, responsible controlled substance use. If they fail in their duties, then life-long injuries or death can occur, regardless of whether it was a narcotic or other medication. If you’ve been affected by a prescription drug error, Miami attorneys Friedman, Rodman & Frank can help you find the legal relief you need.

Two other Florida whole-sale distributors were also blocked from shipping out certain drugs to other pharmacies. This is an extension of the D.E.A.’s attempt to crack down on the “pill mill” of prescription drugs funneled from companies or doctors’ offices that present themselves as legitimate. The D.E.A. picked the distributors and pharmacies based on the high volume of suspicious sales. Pharmacists and pharmacies are now moving forward with caution, balancing regulations with patient care.

Following statutory regulations while providing patient care is not a new task to those handling medications. The Florida Court of Appeals previously held that a pharmacist has the duty to warn “customers of the risks inherent in filling repeated and unreasonable prescriptions with potentially fatal consequences”. In Powers v. Thobani,et al., No. 4D04-2061 (Fl. Ct. App. June 1, 2005), the pharmacist filled several prescription of pain killers before previous prescriptions were scheduled to run-out. The court pointed out that pharmacists were already under a duty to interpret and assess the prescription order for potential adverse reactions, interactions, and dosage regimen he or she felt appropriate, prior to the transfer of the drug.

Florida courts have long viewed that the state legislature never intended to create a private cause of action when it enacted a statute requiring pharmacists to check for harmful reactions and interactions and to counsel customers. (See Johnson v. Walgreen Co., 675 So.2d 1036 (Fla. Dist. Ct. App. 1996) However, injured patients can always look toward any acts of negligence to support a civil suit claim against the pharmacist or pharmacy. (See Pysz v. Henry’s Drug Store, 457 So.2d 561 (Fla. Dist. Ct. App. 1984). If the pharmacist confused medications while filling a prescription because he or she was overworked or tired, then that pharmacist failed to meet the established set of professional standards set by various regulatory bodies.

Thousands of Injuries Caused by All-Metal Hip Implants Cause F.D.A. to Tighten Regulations in Florida and Rest of U.S.

Published on: January 18, 2013 | by Friedman Rodman Frank & Estrada, P.A.

The Food and Drug Administration recently announced a proposed set of rules that would make it much more difficult for medical equipment manufacturers to sell all-metal hip implants. Companies took advantage of not having to prove their products safe and effective, and were putting devices on the market that they knew caused injuries and were prone to early failure. Now, the F.D.A. seeks to rectify this, placing the onus on companies to show that their product is safe before they can begin or continue to sell an all-metal hip implant.

The South Florida defective hip implant lawyers at Friedman, Rodman & Frank are ready to use their product liability experience to aggressively seek the compensation you need to treat the injuries caused by an all-metal hip. They are very familiar with the problems caused by the metal-on-metal grinding that releases tiny metal shavings into the body, injuring nearby bone and tissue and elevating levels of cobalt and chromium in the blood to a point of toxicity.

Prior to its recall in 2010, the Johnson and Johnson’s Articular Surface Replacement (A.S.R.) device was a popular pick among doctors as they began using all-metal hip implants for its perceived durability benefits. A hip replacement for a metal-and-plastic implant usually lasts around 15 years. However, it has recently been shown that the manufacturers knew that an estimated 37% of patients using the A.S.R. will need to have it replaced within 5 years.

Hip replacements may be a common procedure, but they are far from easy to perform. Hip replacements, like any other serious medical procedure, can leave the patient exposed and prone to infections and blood clots. 29,210 Florida residents were hospitalized for hip replacements in 2011. Several hospitals had to readmit patients for complications related to the procedure. Complications can stem from the doctor choosing a faulty implant device. Any additional surgeries to replace previous hips are painful and increase a patient’s susceptibility to complications.

Johnson and Johnson’s DePuy Orthopaedics division withheld the results of their internal analysis that determined over 1/3 of the A.S.R.’s will need to be replace. They conducted this investigation while denying the results of a British implant registry that already determined the hip implants would fail at an early rate. Though the implant product had already been recalled during the internal analysis, there were still numerous patients who still had the A.S.R. implanted and were not notified of the potential risks.

This is analogous to the recently released documents regarding the drug Celebrex. The manufacturing company, Pfizer, only released the first six months of a study assessing the pain-killer’s effect on the stomach. Celebrex used the first half of the study in order to claim that their medication was safer than other over-the-counter drugs like ibuprofen, because it protected the stomach from complications often found when using a non-steroidal anti-inflammatory drug (NSAID). The full results showed Celebrex did not have an edge over any other pain reliever. Previously, Celebrex’s effectiveness was questioned because there hadn’t been any studies showing it to be more effective at treating arthritis than other over-the-counter medications.

Florida’s Office of Insurance Regulation Looking for Beneficiaries of Multi-Million Dollar, Multi-Agency Life Insurance Settlement Agreements

Published on: January 15, 2013 | by Friedman Rodman Frank & Estrada, P.A.

Florida’s Department of Financial Services, Bureau of Unclaimed Property, holds unclaimed accounts at more than $1 billion dollars. A large portion of this money was obtained through multi-million, multi-state settlement agreements with life insurance companies, including AIG, John Hancock, MetLife, Prudential, and Zurich. All of these companies were previously only using the Social Security Administration’s Death Master File to benefit themselves. They used the file to stop annuity payments to account-holders, but they weren’t using this registry to find beneficiaries that would require new payments.

This is a large example of insurance companies refusing to make the payments to which beneficiaries are entitled. Florida insurance companies are required by law to act in good faith when negotiating and settling a claim, but they often fall short of their fiduciary responsibilities. If you need assistance litigating a bad faith claim to get the compensation you are owed, the South Florida attorneys at Friedman Rodman Frank & Estrada, P.A. have the experience and results you are looking for.

The District Court of Appeals, 4th District recently ruled against the insurance company, American Vehicle Insurance Company (AVIC). AVIC had previously been awarded summary judgment in their favor, where they alleged that there was no bad faith negotiation on their part when they failed to make a settlement soon after the accident. The Court of Appeals was specifically looking to see if there were any material issues of fact for a jury to consider whether or not AVIC acted in bad faith.

The mother of the deceased originally filed suit in Florida against the drunk driver who ran into her daughter, causing serious injuries that induced a coma and later caused her death. The mother claimed the driver’s insurance company acted in bad faith in the immediate months after the accident by failing to offer a settlement. Two-days after the accident the claim was assigned to an employee who quickly assessed the case and decided that the driver was solely at fault, that the injuries exceeded the policy limits, and that the claim should be settled. The AVIC employee attempted to contact the mother, not the injured, and was advised that an attorney was hired. The suit against the driver was filed, and the settlement offers were rejected by the mother of the victim.

The mother was awarded damages in the original case, and decided to sue for bad faith. AVIC moved for summary judgment, arguing that the mother did not have a bad faith claim. The lower court agreed, and the mother appealed, stating that the question of whether AVIC acted in bad faith is determined by their actions, not the action of the claimant. The Court of Appeals agreed with the mother, recognizing that the insurer has an affirmative duty to negotiate settlements. The Court also pointed out that Florida has a stricter standard for summary judgment, requiring that the moving party show conclusively that no material issues remain for trial (Byrd v. BT Foods Inc., 948 So.2d 921, at 923-24 (Fla. 4th DCA 2007). Ultimately the Court stated, “Any delay in making an offer under the circumstances of this case even where there was no assurance that the claim could be settled could be viewed by a fact finder as evidence of bad faith.” The Court reversed the lower court’s ruling in favor of AVIC and remanded the case so the mother could move on to further proceedings.

FDA Sends Warning Letter to St. Jude’s Medical to Fix Faulty Defibrillators Leads, Riata and Durata

Published on: January 11, 2013 | by Friedman Rodman Frank & Estrada, P.A.

The FDA issued a warning letter to the medical device company St. Jude’s Medical to address several violations in the manufacturing of defibrillator leads Riata and Durata. St. Jude’s Medical, following an investigation of its manufacturing plant between September 25, and October 17, attempted to show it had corrected the violations found during the FDA’s investigation. The FDA delineated how its actions and responses were either inadequate or questionable to the point where adequacy could not be determined. The letter ultimately ordered St. Jude to correct the ongoing violations, or else face regulatory action, which could include civil fines and injunctions.

If you have a faulty defibrillator that uses a St. Jude or Boston Scientifc Lead, our South Florida products liability attorneys can help you seek compensation.

Riata and Durata are both essential parts of a defibrillator installed in patients to help monitor and correct their heart rates. The defibrillator senses a life threatening irregularity, and a shock is sent to help correct the heart via the Riata or Durata leads. These leads are surrounded by insulation and are expected to last around 10 years, with the insulation wearing out after several years of wear and tear. The Riata and Riata ST leads were eroding at an alarming, hastened rate and were sending unnecessary, jarring electric shocks throughout the patients’ bodies. St. Jude’s recalled the Riata in 2011, and has been under intense scrutiny every since. The Durata has not been recalled, however the FDA decided to subject that product line to a similar investigation, as it is manufactured similarly and performs the same function as the Riata and Riata ST leads.

More than 200,000 Riata leads have been distributed globally, and it is estimated that approximately 79,000 remain in patients in the United States. Even though the Riata leads have been off the market since 2010, the FDA expected St. Jude to bring its manufacturing process up to statutory code. The FDA is still trying to determine how soon the insulation on the leads fail after the lead is implanted, the timeline of the breakdown (when does the inner insulation fail, when does the outer insulation fail, and when do those failures cause the lead’s shock to migrate), and what risk factors contribute to the accelerated dissolution of the lead insulation.

The FDA has recommended doctors to closely monitor any patient with a Riata lead. Doctors may elect to use imaging tests like a fluoroscopy or X-ray to determine whether or not there is any decay in the insulation that could cause externalized shocks, or they could chose to remove and replace the lead. However, this has its own layer of concern, as the lead is threaded throughout the heart and creates a build-up of scar tissue, which makes each removal laden with risk to the patient.

The FDA requests that all doctors and patients who are either experiencing problems with their Riata or Durata lead, or suspect that the lead insulation is eroding too quickly, to report the problem to their agency so they can better track and correct this medical product defect that affects so many.

American Contract Workers Facing Increased Dangers

Published on: January 8, 2013 | by Friedman Rodman Frank & Estrada, P.A.

Last month, the Pentagon released a report regarding the war in Afghanistan that revealed bleak statistics – Improvised Explosive Device (IED) attacks have increased 56% since 2009, insider attacks are used with higher frequency, and 18,188 have been injured and 2,162 killed since the beginning of the war. At the end of December, an American contractor was killed at Kabul police headquarters by an inside attack, and a car bomb exploded near an American base killing 3 people and injuring civilians.

Federal law requires all U.S. government contractors and subcontractors to secure workers’ compensation insurance for their employees working overseas. The Defense Base Act (DBA) provides disability, medical, and death benefits to covered employees injured or killed in the course of employment. If you have been injured overseas, or have lost a family member employed as a contractor, and need assistance filing a claim, contact a DBA lawyer at Friedman, Rodman, & Frank, P.A. Our experienced South Florida attorneys will work to get the compensation you need during your time of hardship.

Obtaining money from a Defense Base Act insurer is not always simple and straightforward. In the recent decision from the 1st Circuit Court of Appeals, Terri Truczinskas v. Office of Workers’ Comp.Programs, et al., the widow of a contract worker was denied benefits under DBA after her husband’s death. She argued that his death resulted from working at a job that was in a “special zone of danger” in Saudi Arabia. While the DBA provides a statutory presumption in favor of the claimant receiving coverage, the presumption can be rebutted by the insurance company. In this case, the insurance company relied on evidence of suicide to overcome the presumption and deny her claim.

The widow attempted to show that the denial of the claim was unreasonable by countering with allegations that her husband could have been killed by conservative Muslims vigilantes who were offended by his cross-dressing or extra-marital affair, that he was killed by Saudis he investigated as a possible threat, or that a co-worker killed her husband after he uncovered arms smuggling. The Review Board and the Court of Appeals both thought that she did not provide enough evidence to outweigh the insurance company’s rebuttal that his actions leading to his death were outside the coverage provided.

Ultimately, to be satisfied that her husband’s death was covered by his DBA-mandated insurance, the widow needed to show that his death occurred a result of his employment in the “special zone of danger” in Saudi Arabia. She did not have to show that his death was a direct result of the danger, but that it was present. All that is required by the courts is that the “obligation or condition” of employment creates the “special zone of danger” out of which the injury arose. (See Self v. Hanson, 305 F.2d 699, 1962.)