South Florida Personal Injury Lawyers Blog

Drug Recalls and Pharmaceutical Warnings in Florida

Published on: December 16, 2019 | by Friedman Rodman Frank & Estrada, P.A.

Pharmaceutical companies and retailers have strong financial motivations to get their products on shelves as quickly as possible. However, in some instances, these drugs can have potentially dangerous side effects for consumers. When someone suffers injuries because of a defective drug in Florida, they may be able to recover financial compensation for the harm that they suffered.

Most defective drug lawsuits are a type of Florida product liability claim and brought under strict liability theories. In some cases, other approaches may be appropriate, depending on the type of drug that the patient took, the harm that they experienced, and the warning that the company provided. There are three main defective drug claims that a Florida patient may pursue against a pharmaceutical company or retailer: a defective manufacturing claim, an improperly marketed drug claim, or a dangerous side effect claim.

Defective manufacturing claims occur when a product is contaminated or otherwise tainted during production. Sometimes products will become contaminated during production at the facility; in other cases, a product may become compromised at some point between manufacture and when the patient receives the drug. Improper marketing claims arise when the pharmaceutical company uses inappropriate or inadequate warnings, instructions, or recommendations regarding the use of the product. These types of claims may incorporate various theories of liability. Finally, a dangerous side effects claim generally transpires after a patient suffers injuries because the company failed to reveal hazardous side effects appropriately. In some cases, the product’s dangerous propensity is not discovered until sometime after the product has been on the market; however, patients may allege that the company knew of the side effects but failed to warn the public. In some cases, companies will not issue a formal recall but will provide an enhanced warning. This does not always suffice, and the company may still be liable.

Nursing Home Rating Tool Reveals Significant Safety Violations at Florida Nursing Homes

Published on: December 9, 2019 | by Friedman Rodman Frank & Estrada, P.A.

According to the Florida Health Care Association, there are 697 licensed nursing homes in Florida, and they serve over 70,000 residents. These homes provide acute care, rehabilitative treatment, and convalescent services to older adults and those suffering from disabilities. Despite the startling frequently of Florida nursing home abuse cases, families do not always have many options when it comes to the long-term care and treatment of their loved ones. If a family member suspects that their loved one is experiencing nursing home abuse, they should immediately contact law enforcement and seek the assistance of a Florida nursing home abuse attorney.

Nursing home abuse, neglect, and exploitation is a pervasive, long-standing, and frequently unreported problem. Nursing homes may be criminally and civilly liable when they willfully inflict physical injury or mental harm to a resident. Abuse includes depriving residents of appropriate care and services and sexually, mentally, or physically abusing them. Neglect occurs when a nursing home provider or their employee fails to provide services and treatment that is necessary to avoid physical or emotional harm to a resident. Finally, exploitation arises when a provider takes advantage of a resident by manipulating, intimidating, or threatening them. Many times, nursing home abuse and neglect cases involve injuries from falls, pressure injuries, choking, medication errors, infection, dehydration, malnutrition, and unsafe elopement. These incidents can cause significant long-term damage or death to a resident.

There are several laws in place to address concerns regarding patient underreporting. Nursing homes must notify a resident’s treating physician and family if there are any significant changes in the resident’s condition. Further, before 2013, many nursing homes adopted “no CPR” policies, and would not perform life-saving measures on residents who were pulseless and not breathing. However, facilities must now provide essential life support treatment while awaiting emergency personnel, following the resident’s directives, or when they do not have one on file.

Who Is Responsible in a Florida Rear-End Collision?

Published on: December 6, 2019 | by Friedman Rodman Frank & Estrada, P.A.

The National Highway and Traffic Safety Administration reports that approximately 1 in 3 car accidents involves a rear-end collision. Quite simply, a Florida rear-end collision occurs when a driver slams into the vehicle in front of them for any reason. In many cases, these Florida accidents are the result of distracted driving, unsafe following, and weather conditions.

Many Florida drivers assume that they can recover all of their damages if someone rear-ends their vehicle. Although Florida law creates a presumption of fault on the rear-end driver, this presumption is rebuttable. The rebuttable presumption allows rear-ending drivers to avoid paying a portion or all of the other driver’s damages if they can establish that the lead driver was partially at fault for the accident.

In a recent case, a Florida appellate court addressed the four situations when a rear-end accident defendant may rebut their presumption of negligence. In that case, a woman appealed after a trial court denied the woman’s motion for a directed verdict and a jury found in favor of the rear-end driver. Under Florida law, a defendant can successfully rebut a presumption of negligence if they prove that:

Florida Bike and Scooter Share Accidents

Published on: November 27, 2019 | by Friedman Rodman Frank & Estrada, P.A.

In Florida, transportation by bike or scooter is popular and widely utilized by many commuters, tourists, and those looking for an inexpensive way to get around. As a result, Florida continues to lead the nation as a state with one of the highest rates of bicycle crashes every year. Similar to motorists, individuals involved in a Florida bike accident can file a personal injury lawsuit for the injuries they suffered because of another driver or cyclist’s negligence. According to statistics gathered by the National Highway Traffic Safety Administration, Florida has over 100 bicycle-related fatalities every year, which is almost double the national rate.

Florida bicyclists must follow the state’s bike rider requirements. Some requirements include following all traffic laws that apply to motor vehicles, restricting the use of their bike to only one person on a seat, and ensuring that the bike is in proper working condition. Adherence to traffic laws is paramount as the likelihood, and degree of injury to unsafe cyclists is much more severe than that of a motorist.

With the rise in bike-sharing, more inexperienced bicyclists are on the road, and this can cause devastating consequences to the rider, pedestrians, and motorists. Bike-sharing companies usually use a docking system, and riders obtain bikes and return them to the docking station at a later time. However, recently, non-docking scooters and bike-sharing systems have become more prevalent. This allows riders to leave their bikes or scooters at various locations.

Maximum Medical Improvement and Florida Workers Compensation Eligibility

Published on: November 25, 2019 | by Friedman Rodman Frank & Estrada, P.A.

Recently, Florida’s First District Court of Appeal issued an opinion addressing a claimant’s eligibility to temporary partial disability benefits after an expert medical advisor opined that he reached maximum medical improvement.

Under the Florida State Workers’ Compensation Program, employees who suffered injuries at their workplace or during the scope of their employment, have the right to recover costs associated with their medical expenses and lost wages. To collect benefits through the state’s workers’ compensation program, employees must report their injuries to their employer within 30 days of either the injury or when it was discovered to be related to work. Employees must provide as much information as possible, including details regarding the accident and the symptoms they are experiencing.

After reporting an injury, employers should contact their insurance company and send the employee to an occupational doctor of their choosing. The doctor will treat the patient until they reach “maximum medical improvement” (MMI). Under the statute, MMI is when a reasonable medical professional determines that an individual’s condition has reached a point where they should not expect any further recovery. A finding of MMI does not necessarily mean that an employee is fully recovered or that they are not experiencing functional limitations. Further, reaching MMI does not automatically terminate entitlement to treatment. However, reaching MMI is a critical point in the employee’s treatment, because once MMI is reached, an employee’s insurance carrier can reduce or terminate benefits. Issues arise because there are instances where doctors are under pressure to categorize patients as reaching MMI, even if that is not the case.

Appeals Court Issues Opinion in Insurance Company Dispute Following Florida Accident

Published on: November 21, 2019 | by Friedman Rodman Frank & Estrada, P.A.

A Florida appellate court recently issued an opinion in a lawsuit stemming from an insurance dispute between a Florida policyholder and her car insurance provider. For several years, the plaintiff exercised with the assistance of a personal trainer out of a mobile gym. The gym used the woman’s electricity to power various equipment and machinery. On one occasion, the woman suffered injuries during her workout. She filed a negligence lawsuit against the trainer and the mobile gym’s owner, ultimately settling the claim.

That settlement did not fully compensate the plaintiff for her injuries, however. Thus, to cover her remaining damages, she filed a claim with her insurance company under her uninsured/underinsured motorist (UIM) policy. The insurance company refused to pay the costs, claiming that the policy did not extend to the circumstances surrounding her injuries. She filed a claim against the Florida car insurance company. Although these facts are admittedly unusual, the case presents a common issue that arises when a policyholder attempts to collect compensation from an insurance company.

Florida insurance companies often take on an adversarial role, even with their own policyholders. Claims adjusters often receive training to negotiate settlements and deny claims in the insurance company’s favor. Several issues commonly arise when a policyholder tries to collect from an insurance company. First, there may be issues surrounding causation. Insurance companies often require motorists to provide evidence of what caused the accident. After establishing causation, they will usually need the party to prove fault. Adjusters will often deny claims based on who they find to be at fault for the accident. If a policyholder overcomes the initial hurdles, they will then need to claim their damages. Insurance companies may try and limit payouts by contending that the policyholder’s injuries were not as severe as they suggest.

Can Parties Circumvent the Statute of Limitations in Florida Personal Injury Cases?

Published on: November 19, 2019 | by Friedman Rodman Frank & Estrada, P.A.

There are various procedural and evidentiary rules and regulations that Florida car accident victims must follow if they want to collect damages from an at-fault party. Before a court accepts a personal injury lawsuit, it will determine whether the claim falls within the statute of limitations. The statute of limitations is the amount of time that a person has to bring a legal cause of action against another party or entity. This is arguably the most critical step of a personal injury lawsuit, because an otherwise meritorious claim may face dismissal if the statute of limitations has expired.

Generally, the statute of limitations begins to run from either the date of the incident or the date the injury was discovered (or should have been discovered). There are certain exceptions to the statute of limitations or arguments that a party can make to argue that the statute does not yet bar their claim. Florida courts understand that there are circumstances that may hinder a plaintiff’s ability to file a lawsuit within the statute of limitations. For example, historically, Florida courts have permitted plaintiffs to file a lawsuit past the statute of limitations if the plaintiff was deemed incompetent for some time, if they were a minor, or if the defendant fled the state. However, absent a unique and unusual circumstance, the courts will dismiss a claim that is past the statute of limitations.

In some instances, a defendant may claim that the parties agreed to shorten or lengthen the statute of limitations. For example, a state appellate court recently issued an opinion addressing the validity of a contractual agreement that reduced the statute of limitations. In that premises liability claim between a tenant and landlord, the landlord argued that the parties agreed that any legal claim against the landlord must be filed within one year of the incident. The landlord moved to dismiss the case because the complaint was filed two years after the woman suffered injuries. In that state, claims of this sort generally must be commenced within two years of the injury, but parties can agree to modify the statute of limitations.

Florida Appellate Court Addresses Direct Liability in Punitive Damages Lawsuit Against Corporation

Published on: November 14, 2019 | by Friedman Rodman Frank & Estrada, P.A.

A Florida appellate court recently addressed the appeal of a defendant power company after a jury verdict awarded a plaintiff non-economic and punitive damages. The power company alleged that the plaintiff failed to establish the requirements necessary for punitive damages claims.

The case stemmed from the tragic electrocution of a 15-year-old who was climbing bamboo stalks next to a power line. The teenager was electrocuted after the bamboo line bent over into the power line. His mother filed a wrongful death lawsuit against the power line, alleging that it was directly responsible for maintaining and upholding the safety protocols that the power line requires. She claimed that the power company prioritized their own financial interests while knowingly failing to secure against the life and safety of the public. In addition to compensatory damages, the woman pursued punitive damages based on direct corporate liability.

Punitive damages are unique in that they are designed solely to punish and deter defendants from engaging in similar conduct. Florida injury victims who pursue punitive damages against a defendant must meet certain evidentiary requirements before they can claim these types of damages. In cases where a plaintiff pursues a direct liability theory against a business or entity, they must be able to overcome additional evidentiary standards.

Exclusions in Florida Auto Insurance Policies

Published on: November 12, 2019 | by Friedman Rodman Frank & Estrada, P.A.

Anyone who has ever tried to read a Florida car insurance policy knows that they are lengthy, complex, and do not clearly outline what coverage is provided. Most Florida motorists end up purchasing insurance after answering a series of questions online about their vehicles, driving habits, and desired coverage amounts. However, few drivers truly know what their insurance policy covers.

After a Florida car accident, most injured motorists rely on insurance coverage to reimburse them for the expenses associated with the accident, including medical bills and lost wages. Florida car accident victims may have also endured significant pain and suffering as a result of the crash. Unfortunately, too often, the at-fault driver does not have enough insurance coverage to fully compensate an accident victim. In this situation, the accident victim may need to file a claim with their own insurance company under the underinsured/uninsured motorist (UIM) clause.

A UIM clause provides motorists with additional insurance coverage in the event that the at-fault driver does not have insurance or does not have enough insurance coverage to fully compensate them for their injuries. This is especially important in Florida, where it is estimated that approximately 23 percent of drivers are uninsured. Due to the importance of UIM insurance, Florida lawmakers determined that an insurance company most provide UIM coverage in the same amount as bodily injury coverage unless the insured specifically waives UIM coverage. The burden rests with the insurance company to ensure that they obtain a valid waiver of coverage; otherwise, the insurance company may still be on the hook for providing UIM coverage.

Do Florida Doctors Have a Duty to Protect Non-Patients?

Published on: November 7, 2019 | by Friedman Rodman Frank & Estrada, P.A.

Most Florida medical malpractice claims involve a medical professional and their patient. Yet some cases have raised the issue of whether other people can bring a claim against a medical professional where the plaintiff suffered an injury because of the professional’s negligent professional conduct.

In May 2016, a man was driving his truck on a highway when he crashed with a horse-drawn hay trailer, killing one passenger and injuring the other four passengers. In April 2015, the man had been declared blind and instructed not to drive. However, about six weeks before the crash, a doctor told the man that his vision had improved, and that could drive, with some restrictions. After the collision, the plaintiffs argued that the doctor was liable for their injuries because the man’s vision was still below the minimum vision standards required to drive according to state law. The plaintiffs argued that the doctor owed a duty to the injured parties to warn the man that his vision did not meet the standards to drive under state law.

In that case, the court considered whether the doctor could be held liable in such cases. The court found that it was somewhat foreseeable that a person who drivers with impaired vision might cause a car accident. However, the eye doctor did not treat or provide medication to the patient that led to his vision impairment. In addition, the court found the public policy concerns persuasive, such as how the imposition of a duty might affect the doctor-patient relationship, and such a duty would lead to higher health care costs. Therefore, the court found a doctor does not have a duty to third parties based on a doctor’s failure to warn a patient about driving risks resulting from the patient’s medical condition. However, the court found that the injured passengers could still sue the doctor because the driver had agreed to assign his medical malpractice claim and any recovery to the injured passengers.