We discuss causation (sometimes called proximate cause) often in this blog, and for good reason. It’s usually the most difficult part of an injury lawsuit to prove, and defendants often challenge proximate cause vigorously at trial. Additionally, the concept of causation is often so vague that different courts may appear to rule differently in every factual scenario.


What is Proximate Cause?

Just as it sounds, proximate cause asks whether the defendant’s negligence actually caused the injury. By way of example, assume a car rear-ends a vehicle driven by a person with a heart condition. Two days later, that person dies of a heart attack. Did the accident cause the death, or the heart condition?

These questions arise in many forms, and are often factual disputes for a jury to determine. Courts have defined causation as whether, in the realm of human foresight, injury could be seen as occurring from the negligence.

New Case on Causation

A recent case explores causation in the context of products liability. A man had purchased a bicycle, and was riding it in Miami, when the wheels suddenly and without warning froze and locked, sending the victim tumbling over and suffering catastrophic damage to his face and jaw. It turns out that pieces of debris from the road had damaged carbon fiber parts of the bike, which then caused the wheels to stop.

The man sued the maker of the bicycle under a number of product liability theories, including failure to warn. Specifically, the victim argued that had there been a warning that carbon fiber on the bike could be damaged by debris, and stop the wheels, he wouldn’t have purchased it.

Appeal Ensues

The jury entered a verdict of $800,000, but the bicycle company appealed. The appellate court noted that it must be more likely than not that the failure to warn caused the injuries.

The court took a very limited view of causation, stating that the debris (or poor road conditions) caused the accident, not the failure to warn. The court noted that all roads may have debris, and that’s not something any bicycle company can control, or should have to warn about.

It should be noted that the case did not go forward on other products liability theories, such as defective manufacturing or defective design. There’s no way to know from the case why that is. But it’s very possible the outcome may have been different had that been the case.

Still, it’s troubling that the court took such a narrow view of the case, and didn’t give much attention to the fact that it wasn’t just the debris that caused the accident, but the weak and apparently susceptible carbon fiber parts of the bike.

If a bicycle manufacturer knows parts of a bike are weak and may be susceptible to debris, it should have an obligation to warn purchasers of that fact. That sounds like common sense. Unfortunately, the appellate court disagreed in this instance.

If you are injured by a defective or malfunctioning product, make sure your attorneys understand all the possible legal theories and strategies. Talk to the Miami personal injury attorneys at Gerson & Schwartz, P.A. today for a free consultation about your injury case.

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You may have heard in the news about how arbitration clauses are causing consumers difficulty when bringing claims against big companies. You may think arbitration is a threat to just consumer clients suing businesses for unfair trade practices. But more and more, it’s being used against those who suffer personal injury due to the negligence of another, as big businesses’ way of trying to deny victims the right to a jury.


What is Arbitration?

Arbitration is an informal proceeding where both sides present their evidence and a decision is made about the case. Unlike court however, the decision is not made by a jury, but rather, an arbitrator. The arbitrator also may not even be a judge, but may be a lawyer, retired judge, or other professional.

The process is very informal. The rules of evidence are often relaxed, and the ability to collect evidence before a “trial” may be much more limited than it is in a regular courtroom.

Businesses like arbitration for many reasons, but the primary one is the elimination of the jury. Businesses feel that arbitration avoids the supposed emotional reaction juries have, and avoids the so-called “runaway verdicts” that defendants think juries enter.

Recent Case Limits Arbitration

A recent case explores arbitration clauses in the context of negligent security. An employee of Club Med was sexually assaulted while sleeping in her employer-provided dorm room.

She subsequently sued Club Med for negligent security. However, her employment contract had a provision where she agreed to submit any claims or lawsuits to arbitration. Thus, Club Med sought to throw the case out of court, and have it submitted to an arbitrator.

But the appellate court disagreed with Club Med, and found that the arbitration agreement only required arbitrating any claims that arose from the victim’s employment. An attack when the employee was off duty, and in her dorm, did not arise from the victim’s employment.

The fact that she wouldn’t have been attacked had she not been an employee of Club Med was of no consequence, because there was still no nexus (connection) between her employment, and the attack that she was suing for. Thus, the court reasoned, the arbitration clause was inapplicable to her.

Mixed News Going Forward

Clearly, the good news is that a court refused to enforce an arbitration clause upon an injured victim. But the decision was based on the language of the agreement that limited the scope of arbitration, and thus, it’s reasonable to think that in the future, these arbitration clauses will be drafted broader and broader to cover as many different scenarios as possible.

If courts begin to believe that these clauses, when properly drafted, are enforceable, it could be a huge threat to an injured victim’s right to a jury. The Consumer Financial protection Bureau (CFPB) is dealing with enforceability of arbitration clauses, and let’s hope that there’s regulation limiting them as much as possible.

If you are injured by the negligence of a business, or are victimized because of poor security, make sure you have attorneys that understand all the possible defenses and difficulties of the case from the very start. Talk to the Miami personal injury attorneys at Gerson & Schwartz, P.A. today for a free consultation about your injury case.

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Often when people are injured, the negligence involved multiple parties. A construction site can have contractors and subcontractors, stores may rely upon outside vendors, and apartment complexes may contract out with private security companies to handle security. Thus, knowing which entity to sue, and holding the right party responsible for your injuries, becomes crucial.709853180_df7bb95f08

Delegating Duties

Often, companies will argue that they have delegated the duties they owe to the public or to you, to another company, and that company is the one responsible for your injuries. So, for example, a store that hires a separate maintenance company to clean their floors will point the finger at that company when you slip and fall because of the poorly maintained floors.

To some extent, the law does allow business owners to point the finger at these other companies, depending on the nature, scope, and kind of business they operate. The question for an injured party becomes whether the business owner can legally pass the buck—that is, whether the duty to keep their premises safe can be delegated to another company.

When Duties Can’t Be Delegated

Businesses can never delegate what are known as inherently dangerous activities. These are activities that by their very nature are so dangerous that injury can be expected to occur, even when all due care is taken. Examples would be working on power lines, handling or transporting combustible materials, or working on a construction site. A company could not delegate the duty to keep pedestrians safe to a subcontractor on a construction site.

But many cases have said that a duty is non-delegable even without an inherently dangerous activity being conducted. In many cases, courts have held that the mere responsibility to keep a premises safe and clean is non-delegable. Duties or obligations that arise from a statute will be considered non-delegable. The obligations of a professional (i.e., a doctor that commits malpractice) will be considered non-delegable as well.

Why It’s Important to Keep Businesses Responsible

It’s important not to let companies handoff liability to subcontractors. As a matter of social policy, businesses should be responsible for their own premises, and have an obligation to their patrons that they can’t wash their hands of just by hiring someone else.

The other reason why it’s important is because sadly, many companies would try to use subcontractors, or independent contractors, for the sole purpose of discouraging injured victims from filing lawsuits. Companies would (and even today, sometimes do) contract with individuals, or smaller companies, or entities that, for a variety of reasons, would not be good defendants in a lawsuit.

Victims who were forced to litigate against tiny companies with little assets would have problems not just recovering judgments or verdicts, but would have problems even getting basic information (discovery) about their accidents. Many smaller companies also close and reopen repeatedly to avoid paying judgments. That’s not a problem injured victims should have to deal with.

If you are injured by the negligence of a business, suffer a slip and fall on someone’s premises, or are victimized because of poor security, you want attorneys who know exactly who is responsible. Talk to the Miami personal injury attorneys at Gerson & Schwartz, P.A. today for a free consultation about your injury case.

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When people are injured because of the negligence of another, it may be natural to think that filing a lawsuit is the immediate next step in order to get reparation for injuries. But in fact, there are many steps that often occur before a lawsuit is filed, and which are necessary to develop your case, if a lawsuit becomes necessary.


Medical Treatment is Needed

The obvious first step in developing an injury case is for you to recover or try to recover for your injuries. Filing a lawsuit before you have had sufficient time to treat and recover is often a bad idea. In many cases, you may undergo months of therapy, and end up needing surgery. In other cases, the therapy may almost completely bring you a full recovery. But it’s impossible to know which will be the case until you have undergone medical treatment (this is often called MMI, or maximum medical improvement).

Obviously, in some cases, there is not as much of a need to wait. The ultimate impact of death or catastrophic injury is immediately clear. But outside of that, developing a full, comprehensive medical history that accurately provides your ultimate prognosis is vital and often can take time.

The Pre-Suit Demand

Even when you are done treating, a demand will often be made to the insurance company or potential negligent defendant. A demand is a package that explains what happened to you, why the defendant is negligent, and what you expect to prove, should a lawsuit be filed.

In some cases, the other side will offer an amount that is fair, or which otherwise is not much different than what you would expect to get from a jury at trial. But if the offer is not fair, and doesn’t fully compensate you, a lawsuit will be needed to get further compensation.

Getting a Good Pre-Suit Offer to Settle

The difference between getting a fair or unfair offer depends on a number of factors, some of which you can control and some of which you can’t.

Certainly, you can hire competent attorneys that get all the evidence, and present a well-thought out demand package to the other side. And you can diligently get medical treatment and advise your attorneys of how your injuries have affected your life.

You can’t control who the insurance company (Allstate, Progressive, etc.) is on the other side. Some insurance carriers will make fairer pre-suit offers than others.

You also can’t control your own previous medical history, which may impact what an insurance company offers you before trial. For example, if you had a back injury 10 years ago, and you re-injured it in a recent accident, the insurance company likely will make an offer that is less than they otherwise would if you had no pre-existing injuries. You’ll need a lawsuit to demonstrate that your recent injuries aren’t the same as your old ones.

There is more to obtaining fair compensation than just immediately filing a lawsuit. Time spent waiting for settlement or trial can certainly seem long for many victims. But it’s all part of the process, and understanding what’s happening may make the wait a bit more tolerable.

If you are injured by the negligence of another, make sure you have attorneys that can explain to you the entire process. Talk to the Miami personal injury attorneys at Gerson & Schwartz, P.A. today for a free consultation about your injury case and to discuss what you can expect, and when.

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We often hear about punitive damages in movies or on TV. It seems easy to get them, if you believe Hollywood’s interpretation of punitive damages. But in Florida, punitive damages are not easy to get, and there is even a special statute that dictates when and how punitive damages can be sought.


What Are Punitive Damages

As the name implies, punitive damages are intended to punish, or at least, deter others from acting in a similar manner in the future. This is different from traditional damages, which seek to compensate the injured victim for loss.

A jury can calculate a victim’s economic or monetary losses. It can’t exactly calculate emotional loss or pain and suffering, but a jury can use its life experience to put a value on that. But valuing how much to “punish” a defendant, is a much harder question. Because the damages awarded are often extreme, Florida law has placed restrictions on when and how such damages can be attained.

First, a party can’t ask for punitive damages in its initial complaint, no matter the circumstances. It must try to get evidence of conduct that would be worthy of punitive damages, and then amend its complaint to include them later on.

The court must give approval for this amendment. That means a judge must do so—not the jury (although the jury will determine whether there is liability sufficient to award punitive damages, and if so how much, assuming the judge allows a party to allege them).

For this reason, it’s important that an attorney conducts discovery with an eye towards that amendment, and that an attorney tries to uncover facts that would convince a judge that punitive damages can be requested.

Standard for Getting Punitive Damages Is High

The standard for obtaining punitive damages is also very high. The law says that only personally a party “guilty of intentional misconduct or gross negligence” can obtain them. That requires that a party knows what he’s doing, and intends to do it, and that the act constituted a “conscious disregard” for the safety of others. It’s almost akin to proving an act was intentional.

It gets harder when trying to obtain punitive damages from an employer for the acts of an employee. Not only must it be demonstrated that the employee acted near intentionally, but the employer must have known about it, participated it, or knowingly allowed it.

And on top of all that, to get punitive damages, an injured party must meet those standards by “clear and convincing” evidence—higher than the normal “preponderance of the evidence” standards.

Despite the high burden, there are situations where courts have allowed punitive damages. Often a party’s conduct is so reckless or careless that punitive damages can be obtained. A good attorney should know from day one whether punitive damages are a possibility, and should gear the litigation strategy towards building a case that convinces a judge to allow punitive damages to be brought before the jury at trial.

If you are injured by the negligence of another, make sure you have attorneys that plan your strategy to obtain the maximum amount of damages awardable. Talk to the Miami personal injury attorneys at Gerson & Schwartz, P.A. today for a free consultation about your injury case and to understand how the law applies in your situation.

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It’s not often that a court has to determine what the law was, and what law applied, almost five years previously. But a recent slip and fall case has caused a court to evaluate whether a law changed back in 2010 should apply to an accident that happened in 2005.


Child Falls on Substance in a Mall

A woman alleged that in 2005, her minor son fell on a slippery substance in shopping mall, right near a Chick-Fil-A restaurant. She sued for his injuries, alleging the restaurant negligently allowed the foreign substance to remain on the floor, and knew or should have known it was there, thus creating a dangerous condition.

In depositions, the family recalled a large, slowing puddle of liquid on the floor, not just a small wet spot. Although the fall actually occurred on shopping mall property, and not on the restaurant’s premises, the family testified that they could tell the puddle was coming from Chick-Fil-A’s restaurant area.

The Changing Slip and Fall Laws

The problem is that in 2010, the slip and fall laws changed, requiring an injured party show that a business had control over the area where the victim was injured. A victim also had to show that a business knew or had constructive knowledge that a dangerous condition existed. In other words, a party had to show a defendant was “actively negligent” by having actual or constructive knowledge of the dangerous substance.

Under the 2010 law, a victim would have to show, for example, how long a substance was on the floor, or that policies or procedures weren’t maintained that would have allowed a business to discover the substance. The standard was thus much higher for accident victims trying to prove their claim.

Court Determines If Law is Retroactive

So did the 2010 law change apply to the victim’s 2005 accident? The real question is whether the new law is retroactive. Generally, laws that change substantive rights are not retroactive. Those that just change procedure, however, can be.

Making this problem more difficult was that there were only a few previous rulings dealing with this issue, and each had been determined differently—some allowing the statute to be retroactively applied, and some not.

The court here decided not to make the statute retroactive, determining it altered an injured party’s substantive rights. Thus, the victim only had to show there was no reasonable care in the maintenance and inspection of the premises—not that Chick-Fil-A actually knew or should have known there was a substance on the floor.

Because only Chick-Fil-A employees were allowed inside the kitchen area of the restaurant, and that’s where the liquid was flowing from, the court determined that the victims could make a negligence claim against the restaurant.

The court did certify the issue to the Florida Supreme Court, a process by which a court can ask the Supreme Court to render an opinion, when many appellate courts are divided over a particular issue. It’s unknown whether the Supreme Court will accept the invite.

Slip and fall cases can have serious damages, and may be fact-intensive. Talk to the Miami personal injury attorneys at Gerson & Schwartz, P.A. today for a free consultation about your fall case and to understand how the law applies in your situation.

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One of the most frightening scenarios for patients who undergo a surgical procedure in a hospital is the possibility of having a foreign object left inside of them. A recent case discusses how and when the law protects those who fall victim to this kind of negligence.


Man Has Object Left Inside of Him

Recently, a man underwent a surgical procedure in a hospital, and a drain was inserted into him, a common procedure to allow drainage of excess fluids. A nurse eventually removed the drain. The man began experiencing intense pain for days afterward. What he didn’t know then, but eventually learned, was that a portion of the drainage tube had dislodged, and remained inside of his body.

The man sued the hospital. He was supported by Florida law, which provides that when an object is left someone, it’s assumed that there was negligence just by the mere fact that an object was left inside of them. This is known as the foreign body instruction. When a jury is given the instruction, a victim doesn’t have to prove negligence. It’s proven by having an object left inside of him. It’s on the defendant—in this case, the hospital—to demonstrate that there was no negligence.

He of course sought to have the jury instructed on that very law. But the hospital contended that the foreign body instruction wasn’t applicable where an injured party knows who the negligent party is. Rather, the hospital contended, the instruction is only for victims who have no idea who the negligent party is, for example, when someone wakes up from surgery and has an item in him. He may have no idea who put it there, who left it there, how it got there, etc. Here, of course, the man knew that if anyone was negligent, it was the nurse. Thus, the hospital argued, the foreign body instruction, which would presume its negligence, shouldn’t apply.

The trial court agreed with the hospital, refused to instruct the jury on the law, and a verdict against the victim and in favor of the hospital was entered. An appeal followed.

Court Limits When Instruction is Used

The appellate court, in reviewing the instruction, determined that it was intended for situations where generally someone is unconscious, and sustains an injury that’s not normally associated with, or which could ever be caused by, the medical procedure itself. An example would be waking up from surgery with a burn.

Conversely, poor medical results, and even negligence, are determined by a standard negligence inquiry, and do not require the foreign body instruction that the victim here was seeking. The same applies where a victim knows who the responsible, negligent party would be, and generally how the injury occurred.

Here, the victim knew that the nurse was negligent. The victim knew how the injury occurred—a piece of a tube being left inside of him. The victim was conscious, unlike if he was in surgery. The victim could, and did, make a direct negligence case against the hospital.

Thus, if anything, the appellate court felt that the case would have to be one of normal, medical malpractice, and that the victim could not get the foreign body jury instruction that he asked the trial court to apply.

Medical Malpractice can take different shapes and forms, and the law may apply differently to each. Talk to the Miami personal injury attorneys at Gerson & Schwartz, P.A. today for a free consultation about your malpractice case to understand your rights if you are injured by a medical provider or facility.

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In many cases, being on the top of a best or worst-of list, can be bad news. That’s the case for Florida, which was recently ranked in a study as being the worst state in which to get into a car accident. That’s right, including Washington D.C., Florida was 51 of 51.


Study Evaluates Insurance Issues

The study was based on both the kinds of insurance required by a state, and the percentage of drivers that were driving, illegally or not, without any insurance. The study also took into consideration what kinds and what limits of insurance are required by drivers to be carried. Many states have no insurance requirements at all.

Maine was ranked the best, with just under 5% of its residents driving without insurance. And at the bottom was Florida, with 23% of drivers travelling the roadways with no insurance. Oklahoma actually has close to 26% of its drivers uninsured, more than Florida, but finished ahead of Florida, because its minimum insurance limits are higher than Florida’s.

Also at the bottom were Mississippi and New Mexico, with uninsured rates in the 20th percentiles. California was 47th, with only 14.7% driving uninsured, but its minimum limits are even lower than Florida’s, lowering its rating.

Florida only requires personal injury protection (PIP). Other kinds of coverage are optional, but in many states, uninsured motorist coverage or bodily injury coverage is required.

Why Insured Drivers Matter

It’s best not to get in an accident where a driver has no insurance. Unless you are in an accident involving a vehicle owned by a large corporation, where insurance is not as much as an issue, when you are hit by an individual, insurance is usually what helps compensate you for your injuries. This is why when there is insurance involved, an injured party doesn’t have to worry whether or not the other driver can pay a verdict or settlement.

In many cases, if you are hit by an individual driver without insurance, there is no pocket for you to get any reparation. That includes payment for the damage to your car, or for your own injuries.

Your personal injury protection (PIP) can help with some of your expenses, but will only cover actual medical bills—not pain and suffering, loss of enjoyment of life, or other emotional hardship. Many PIP policies also have deductibles, which you could have to pay if the other side has no insurance.

Safe Drivers and Insured Drivers

There is no reason to say that just because someone drives without insurance, they’re not a safe driver. But certainly, there is an aspect of responsibility to carrying insurance (especially where its legally required), and someone who doesn’t do so may not be someone you want to be sharing the road with.

Unfortunately, there appear to be a lot of those kinds of people in Florida.

Car accidents can be devastating, and often involve severe disruption to your life. Talk to the Miami personal injury attorneys at Gerson & Schwartz, P.A. today for a free consultation about your Miami injury case and make sure you get proper compensation for your injuries.

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It’s pretty basic that when you are litigating a case involving personal injuries, you need evidence to prove your case in court. In fact, much of what happens before trial involves disputes over what evidence can be obtained and which evidence the negligent defendant is not required to produce.


One category that doesn’t have to be produced is known as “work product.” This term has a specific legal definition, but in practical terms, anything deemed work product may be very difficult for you to obtain to prove your case.

What is Work Product?

Work product generally includes documents that are made in anticipation of litigation. The most classic form of work product is an incident report.

If you slip and fall on a business premises, you may notice the employees filling out documents about the incidents. They may ask you what happened, take pictures, and get information from witnesses. This document is an incident report.

Logically, if you sue for your injuries, you might think that the incident report is a pretty important document needed to prove your case, and that the defendant should have to turn the report over. Clients often request their attorneys get the report as evidence of what actually happened, especially when there is a factual dispute with the other side. But the incident report is created by a business in anticipation of litigation, and thus is generally protected from disclosure.

Another common dispute is over past incidents—for example, how many people have fallen in the store (or in an area) in the past? Again, documents created memorializing those past incidents will often be considered work product, and an injured party may not be able to obtain that information.

The Broad Scope of Work Product

Work product includes almost any kind of document created in anticipation of litigation, even if at the time the document was created there was no litigation threatened or pending.

The information doesn’t have to be gathered by the company’s attorney. A document doesn’t have to be “confidential” to be work product, and a report that is given to corporate departments that are not related to litigation can still be work product. Internal investigation by a company, even if done for risk management purposes, may also be work product.

When Incident Reports and Work Product Can be Obtained

In some cases, an injured party can obtain documents that are considered work product. To do so, a party has to show that the information is needed, and that it can’t get the information anywhere else.

That may seem like an easy burden. But if an injured party can, for example, get information about the accident through depositions, a court may say that it doesn’t need work product documents from the defendant. In one case, because a defendant provided a list of prior accidents on its premises, a court ruled that the actual documents memorializing prior accidents couldn’t be turned over.

Also, simply saying you need documents “to prove your case” won’t be enough. A party needs to specifically state what it is about their case they can’t prove without the requested information, and why that’s vital to winning.

Slip and fall accidents can be highly disputed, and winning may depend on getting sensitive and contested information. Talk to the Miami personal injury attorneys at Gerson & Schwartz, P.A. today for a free consultation about your Miami injury case and make sure you have attorneys that will fight to get all the evidence you need.

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When we think of medical errors, we usually think of medical malpractice, or errors by other medical providers or facilities. We don’t often think of pharmacists. But where a medication creates an adverse effect—including death—it’s important for someone who is injured to consider the liability that a pharmacist may have.


When Pharmacists are Liable

Suits against pharmacist may include:

  • Allegations that a pharmacist should have known a drug was contaminated or expired;
  • Allegations that a pharmacist should have known that a patient was getting too much medication. This often arises in cases of pain killers, or controlled substances.
  • Allegations that a pharmacist should have known that a particular medication would be dangerous to a patient with a given medical history, or who is also taking another medication which may not work well with the medicine prescribed.

Generally, a pharmacist who sells a drug legally warrants the following:

  • (S)he is giving the drug actually prescribed;
  • (S)he has used care in filling the prescription (failure of which might also give rise to an action in negligence);
  • (S)he has compounded the medication properly, if applicable; and
  • The drug is free from any foreign substances that shouldn’t be in there.

It is the second requirement that has given rise to the most litigation. The most frequent allegations against a pharmacist are usually analyzed according to whether a pharmacist acts with the same due care and prudence as a similar pharmacist, in the same circumstance or situation.

Analyzing Pharmacist Liability

Obviously, pharmacists are not privy to the same information that your doctor is. The pharmacist doesn’t have access to your medical records, or medical history (other than medications you are or have taken). Thus, the ability to impute knowledge on a pharmacist is difficult, and the types of situations a pharmacist can be liable for may be somewhat limited.

Surely, a pharmacist won’t be liable for things he just can’t possibly know. If your doctor prescribes you the wrong medicine, or too much of it, your pharmacist has no idea. He doesn’t know what’s “right” for you based on your medical history, and is in no position to second guess your doctor.

But some errors are apparent. For example, medications have expiration dates on their labels. A pharmacist surely knows not to prescribe them.

Similarly, a reasonable pharmacist likely knows how much of a medication may be too much, and cannot just blindly fill legitimate medical prescriptions. Patients coming in for early refills, or multiple refills, are a clue to the pharmacist that there may be a problem. For example, you don’t need to be the treating doctor to know when too much Oxycodone is being filled by the patient, and the pharmacist likely has an obligation to refuse to fill the prescription—even if the doctor’s prescription is otherwise valid.

Suits against pharmacists are not common, but in cases where medication has caused injury, it’s always important to examine what the pharmacist knew and should have known. In many cases, a pharmacist is a potential defendant with liability for injuries.

Medication mistakes can have devastating and catastrophic effects. Talk to the Miami personal injury attorneys at Gerson & Schwartz, P.A. today for a free consultation about your malpractice case to make sure all possible defendants are identified.