If you are injured as a result of medical malpractice, you probably have the expectation that you’ll get your day in court, the chance to tell your story to a jury of your peers, and the opportunity to confront those who have wronged you.

More and more, however, doctors are trying to use forced, compelled arbitration to deny you that right. It’s a practice that is very harmful to Florida patients and consumers, and unfortunately, the law is very unclear whether these arbitration agreements are permissible or not.


What is Arbitration?

Arbitration is a process where 1-3 neutral arbitrators will hear your case, and decide whether you are entitled to recovery for your injuries. These arbitrators are not judges. They may be attorneys, retired judges, or in some cases, have no relation to the legal system. Some people are “professional arbitrators.” Unlike judges, they are unelected, and take no judicial oath. And, of course, there are not your peers, as are jurors. Yet the arbitrators will hear and decide your case.

An arbitration is an informal process. There is limited ability to present evidence to challenge the other side’s evidence. It is a less formal procedure than trial, and the ability to get documents and evidence from the other side before hearing is largely reduced from what you would be entitled to get in a normal case in the judicial system.

The Use of Arbitration by Doctors

Many companies have long had arbitration clauses in contracts and agreements, requiring parties to arbitrate disputes instead of filing a lawsuit. But the practice of doctors requiring arbitration when you have a medical malpractice claim is relatively new.

Florida law has a complex statutory scheme on how medical malpractice claims are handled. The question in cases which challenge the validity of arbitration agreements is whether the statutory scheme “trumps” arbitration clauses in physician agreements.

Florida’s laws say that a dispute can be resolved through trial, or “voluntary” arbitration. Some cases have read that to prohibit a patient from agreeing in a contract to forced arbitration.  If the law says that arbitration can only be voluntary at the time the case is filed, a contract requiring it violates the law and is against public policy.

But other cases have found no reason why contractual arbitration clauses would be invalid. They argue the contracts are entered into with consent, and there is nothing in the statutes that can be read to specifically forbid arbitration.

It’s likely the Florida Supreme Court will have to resolve the dispute. Hopefully it will find these clauses unenforceable. Many patients are unaware of what arbitration is, or how it affects them, and the doctor’s office is hardly the place where a consumer can take the time and make an informed decision on arbitration.

Arbitration takes away our basic constitutional right to trial by a jury. By using arbitration, the medical community is only seeking to avoid the sympathies of juries, even though such sympathies are often well placed, and well deserved. If the Supreme Court of Florida approves of these clauses, it is likely their use will become universal, essentially depriving all medical malpractice victims from truly having a day in court.

The law in medical malpractice can be complex and unsettled. Make sure your attorneys understand the current state of medical malpractice laws. Talk to the Miami personal injury attorneys at Gerson & Schwartz, P.A. today for a free consultation about your injury or malpractice case.

Photo Credit: Aleera* via Compfight cc

In disputed injury cases, getting evidence that may be difficult to obtain can be the difference between winning and losing. When we think of evidence, we often think of witnesses and medical records and maybe even video camera recordings. But we often don’t think of cell phone records as evidence in injury cases.


Cell Phones and Privacy

We often think of the information on our cell phones—texts, emails, pictures, schedules, etc.—as our private information. Because of that, we write very candid things on our phones, not expecting that the world could ever see them.

In Florida, we have a constitutional right to privacy, which is often used to protect the information on our cell phones.

But cell phone records can be a very compelling piece of evidence, especially in a disputed liability case. Contrary to what you may think, there are ways to get the confidential cell phone records and data of an opposing party—and ways that it can be used against you as well.

Recent Case Makes Cell Data Discoverable  

This was just the issue recently in a case involving the death of a woman who was hit by a truck. As a defense, the trucking company asserted the driver was distracted by her iPhone. They obtained records from the deceased’s cell phone provider, but those are generally just numbers and times of calls made.

There was evidence through witnesses that the decedent had been texting at the time of the accident. Thus, the trucking company wanted its expert to inspect the phone itself, to get access to texts, photos, or social media postings, as well as GPS data that would show where the vehicles were and how fast they were travelling when the accident occurred.

The court allowed the inspection, but only under certain conditions. Only a 9-hour window was allowed to be discovered, and the expert had to create a backup of the phone in order to preserve the data. Special software protecting the phone would have to be used, and the owner’s attorney could be present during the entire process, and the inspection could be videotaped. Once the data was gathered, the owner’s attorney had a 10-day window to file objections to protect sensitive or private data.

The court took special note that the owner’s attorney did not proffer any sensitive information that should be protected, nor did the attorney suggest there were other ways to get the information provided. In essence, the attorney agreed with the stated procedures. And, because of the pre-existing evidence that the driver was texting, this was not a “fishing expedition.”

Whenever a fact is in issue, and a party proposes reasonable parameters and safeguards as they did in this case, a court is always more likely to allow inspection. It’s important to remember that a decision like this cuts both ways. Here it was the victim’s phone that was being inspected, but there is no reason why a victim could not review a defendant’s phone records.

Obtaining difficult evidence wins difficult cases. Find an attorney that has the know how and expertise to do just that. Talk to the Miami personal injury attorneys at Gerson & Schwartz, P.A. today for a free consultation about your injury or malpractice case.

Photo Credit: Joi via Compfight cc

If you are injured in an accident, it is very possible that it may not be the first injury you’ve ever sustained. As we go throughout our lives, and our body ages, we may well have medical problems, whether they are related or not to negligence. But those prior injuries or conditions can cause complex issues in a personal injury case.


The Need to Show Causation

One way that defense attorneys who represent negligent parties try to defend cases is on the basis of causation. Even if someone is negligent, it must still be demonstrated that their negligence actually caused your injuries.

Practically, many defense attorneys will argue that whatever pain, injury or disability that you say you have from an accident actually “pre-exists” the accident, and thus is not caused by it. For example, if you have suffered from migraines your whole life, and someone drops a piano on your head, and your only injuries are the same migraines you had before, the defendant will argue there is a lack of causation, barring you from recovery.

This is a very easy defense to raise, simply because, as we go throughout our lives, we will surely have some sort of injury or ailment. Many of us live with routine daily aches and pains. Perhaps you’ve had a work injury, or an injury playing sports, or just have pains from the natural aging process. Almost nobody goes through life having no pain or injury at all, and that’s certainly true for older clients.

Defeating the Pre-Existing Injury Defense

Fortunately, a good victim or accident attorney knows how to defeat these kinds of defenses.

One way is simply using medical evidence to show that whatever injury or ailment you had before the accident is different than what you have now after the accident.

Back problems commonly fall into this category. You may have had back pain before and after your accident. However, before your accident you may have had a muscle strain, but afterwards, you may have a herniated disc. To you they may feel similar. But objectively, they are very different.

The law also allows you to recover for exacerbation or aggravation of pre-existing injuries. This is given as a jury instruction at the conclusion of your case. This means that if an accident made your pre-existing condition worse, you still have a right to recover.

Often, this is demonstrated subjectively. For example, you may have had a herniated disc that you were living just fine with before, but after the accident you’re in traction and need therapy.

Again, medical experts will be used to show exacerbations of prior injuries, but your medical treatment frequency is also good evidence.

If you had a bad shoulder that you saw a doctor once a year for beforehand, and now you’ve had 10 visits, therapy, and a surgical consult, the increased level of treatment is evidence that the defendant has exacerbated an injury.

Don’t let others tell you that you don’t have a right to recover just because of your medical history. Find attorneys who understand how to deal with this common defense. Talk to the Miami personal injury attorneys at Gerson & Schwartz, P.A. today for a free consultation about your injury or malpractice case.

Photo Credit: Andrea Marutti via Compfight cc

In all kinds of cases, witnesses can provide vital information that can lead a jury to enter a verdict for damages in favor of an injured person. Witness information is of particular importance where facts are disputed. A single witness, especially neutral witnesses with no stake in the outcome, can be the difference between recovering for an injury and being left with nothing.

3090392251_911be4dfafIn many cases, witnesses voluntarily come forward. For example, someone who witnesses a car accident may remain on the scene, and provide their contact information to an investigating police officer, or a treating doctor may be expected to be called as witnesses. 

But what about witnesses that may not have come forward voluntarily? Or aren’t even aware they have information to provide? How does someone who is injured get their information to call them to testify at an injury trial?

The Privacy Balancing Act

There is a balancing act between an injured person’s right to get evidence to prove their case, and an innocent witnesses’ right to privacy. The Florida Constitution explicitly contains a right to privacy, and many businesses or health care providers that are asked to provide names of witnesses will often assert the privacy of the witnesses (who are often their customers, employees or patients) in order to avoid producing such information.

A recent case, for example, demonstrates these kinds of problems. In Sovereign Healthcare Port St. Lucie v. Fernandes a nursing home patient was injured while in the home. The victim’s attorneys requested the names of other patients, in order to get their testimony about how the injured person was treated. 

The nursing home objected, claiming that the information of their residents who were not directly involved in the suit were private and privileged. There is some merit to this. Surely, we have an expectation that our private information will not be turned over just because someone in the nursing home bed next to us files a lawsuit.

But the appellate court noted Florida’s rules which allow for parties to discover the names and identities of witnesses. In doing so, it determined that the nursing home would have to provide the names and addresses of the other residents to the victim’s attorney. 

More Detailed Information May Be Difficult to Obtain

It should be noted that courts may be less willing to compel production of more detailed witness information. For example, medical charts with personal medical information, or financial or bank records, often will not be allowed to be disclosed. 

In more sensitive cases with more sensitive witness information involved, a party may either have records redacted (blacked out), or may have a court review the records in question privately, to determine how sensitive the requested information is, and whether and how much will be produced. 

In all cases, an injured party will have to demonstrate that the information is relevant and can’t be obtained elsewhere. Courts usually won’t provide witness information if the injured party is just fishing for information. A demonstrable reason why the witness information is needed and why it can’t be obtained anywhere else will usually need to be shown before a court allows uninvolved witness information to be disclosed. 

Understanding how to get difficult or unavailable evidence can be the difference between winning and losing your injury case. Talk to the Miami personal injury attorneys at Gerson & Schwartz, P.A. today for a free consultation about your injury or malpractice case.

Photo Credit: davidsonscott15 via Compfight cc

If you are injured in a fall on a business owner’s premises, a crucial question will be whether the dangerous condition was “open and obvious” to you. The open and obvious doctrine can be a difficult hurdle to overcome for injured victims seeking damages for their injuries, but a case earlier this year may have made that hurdle a little lower. 


What is Open and Obvious? 

As the name implies, an open and obvious condition is one which is out in the open, and readily observable to anyone demonstrating due care. Generally, we all have a duty to look out for our own safety. This includes avoiding dangerous conditions that are open and obvious.

A bunch of boxes negligently left on a floor may be open and obvious. A spill involving a clear liquid may not be.

There are many cases denying recovery for injuries where victims fell over open and obvious conditions. It is a powerful defense. Fortunately however, one Florida Court has said that just because a dangerous condition may be open and obvious may not be the end of the inquiry.

New Case Still Makes Negligent Businesses Responsible

The case in question involves an experienced trucker who fell on a large oil spill. The trucker acknowledged seeing the spill (and cones blocking the area) even before falling on it. Hearing this, the trial court dismissed the trucker’s case, based on the open and obvious doctrine.

But the appellate court disagreed. The appellate court pointed out that a landowner owes two duties to those on its property lawfully: 1) A duty to warn of dangerous conditions, and 2) A duty to maintain the premises in a safe condition.

The Court agreed that because the spill was open and obvious, that there could be no claim under #1. There is no need to warn someone of something that’s obvious. 

But that does not mean that the landowner isn’t liable under #2. Even with open and obvious conditions, there is still a duty to maintain the premises safely. The Court overturned the trial court, and sent the case back for further litigation on whether the land owner maintained the property safely. 

Decision Benefits Injured Victims

The case is important for injured victims. Property owners cannot simply neglect their premises and allow dangerous conditions to exist, just because they’re obvious.

This makes common sense. Otherwise, a business owner could completely neglect a dangerous situation just because it’s obvious. Can you imagine a grocery store allowing a wine spill to sit for hours unattended, just because the wine is bright red and obvious? Or allowing a ladder to sit smack in the middle of a shopping aisle for days just because the ladder is easily observable? Any ruling other than this one would allow such absurd situations.

Victims who can prove that a business owner had improper procedures, or failed to clear or fix a dangerous condition, now still have an avenue to recover damages. And, defendants no longer can hide behind the open and obvious doctrine as a shield to protect themselves from liability for their negligent actions. 

Slip and fall injuries can be more complex than you may think, and small facts may have big legal ramifications to your case. Talk to the Miami personal injury attorneys at Gerson & Schwartz, P.A. today for a free consultation about your injury or malpractice case.

Photo Credit: Mark Faviell Photos via Compfight cc

When a car hits a pedestrian, it’s no wonder that there is often very serious injury that results. On one side are tons of steel barreling at significant speeds. On the other side, is a soft, slow, and vulnerable human body, which may not even see the accident coming. The result is almost always a huge disaster.


The Facts on Pedestrian Accidents

From 2009-2013 in Miami Dade County, there were 6,419 car-on-pedestrian accidents of varying degrees of injury. In the 0-17 age group, at least one injury was reported in 84% of accidents. Children, who are often walking about the neighborhood, playing in the street with friends, or who just may not appreciate the dangers of walking amongst cars, are sadly the ones most at risk.

On the surface, a pedestrian-on-car accident seems like a clear cut case that any attorney can handle. After all, those in cars are responsible for maintaining their vehicle carefully, and we all have a duty to look out for not just other cars, but for pedestrians.

But legally, car-on-pedestrian crashes can be some of the most difficult cases there are, and should not be handled by anyone other than very skilled and experienced personal injury attorneys.

The Difficulty of Pedestrian Cases

In Florida, we have a contributory law system. This means that if you are injured, a jury can evaluate how responsible you are for your own injures. If you are, for example, 50% responsible for your own injuries and a jury feels your injuries are worth $100,000, you will be awarded only $50,000. 

Contributory laws can pose a problem to pedestrian accident cases. The drivers of vehicles will often allege as defense to lawsuits that you, the pedestrian, “jumped out into traffic,” or “came out of nowhere.” They will say that they had “no chance to avoid” you. In essence, they are simply arguing that you are responsible, in full or in part, for your own injuries. 

Thus, these kinds of cases have significant factual disputes. These disputes are often resolved through detailed testimony about: 

  • The exact location of the pedestrian when hit;
  • The speed of the car;
  • Any obstacles that may have blocked the driver’s view;
  • Whether the pedestrian looked out for traffic before crossing; and
  • The first time the driver saw the pedestrian, and the first moment the driver applied his brakes. 

Many of these questions must be determined by using experts. Experts may evaluate tire skid marks, angles of views, and time and speed calculations, to determine where both parties were at the time of the accident.

The experts make their determinations based upon the testimony of the parties. This makes party depositions—and having attorneys that can prepare you for them—of utmost importance. The difference in witness testimony between 1 second or 2, or 3 feet or 4, as given in a deposition, can alter an expert’s opinion enough to change the outcome of a case.

Many drivers will also allege that pedestrians were violating established laws, such as not crossing at crossing areas. While violating these laws does not mean that a driver can hit you at will, it can create persuasive arguments to a jury for a driver. 

Evaluation of facts, preparing for depositions, and evaluation of expert testimony, can make the difference between winning and losing your personal injury case. Talk to the Miami personal injury attorneys at Gerson & Schwartz, P.A. today for a free consultation about your injury or malpractice case.

Photo Credit: splorp via Compfight cc

Florida law has a very complex and often expensive pre-suit process for anyone who seeks to sue for medical malpractice. The pre-suit requirements are mandatory, and must be strictly complied with. But in many cases, it may not be so clear whether an injury was caused by medical malpractice or not. If that question is answered incorrectly, the result can be devastating for a case.


The Pre-Suit Requirements

If someone believes they have been a victim of medical malpractice, notice to all prospective defendants must be sent, describing the nature of the claim and the injuries. The potential defendants can then reject the claim, offer to settle it, or request the claim go to arbitration.

The parties can also engage in informal discovery. This includes taking unsworn statements, and obtaining and reviewing medical records.  Additionally, the parties must make a presuit investigation of the merits of their claims or defenses, which must be corroborated by medical evidence.

Practically, this means that a victim must incur the financial expense of getting a medical opinion to back up their claim, even before the lawsuit is filed.

Medical Malpractice vs. Ordinary Negligence

It may seem easy to determine what is a malpractice claim and what isn’t. But in many situations, the line isn’t so clear.

Someone who slips and falls over water on the ground in their doctor’s office would not have a malpractice claim, but rather, just a general negligence claim.

This theory was tested in a recent case, when a victim was in a hospital and died when she was dropped while being transported off of an X-Ray table. The victim’s representative sued, and the Hospital tried to dismiss the claim on the grounds the pre-suit requirements had not been complied with. The trial court agreed with the hospital, dismissing the plaintiff’s claim.

On appeal, the plaintiff’s attorney argued that pre-suit requirements were not necessary because dropping someone on an X-Ray table was not injury by medical malpractice, but rather by normal, ordinary negligence. But the appellate court disagreed, siding with the trial court, and affirming the dismissal of the claim.

The appellate court determined that medical malpractice generally arises out of medical treatment, diagnosis or care. But it also determined that once a procedure has begun, any incident or accident which occurs during that procedure will generally be considered medical malpractice.

The Court cited many cases where this has been applied. In some, machines that were used for medical testing or procedures malfunctioned, causing injury. In others, patients had fallen from stretchers. In all cases, the claims had been held to be medical malpractice—not ordinary negligence.

The Court compared these cases to cases where hot tea had been spilled on patients, or where orderlies accidentally kicked patients, where the negligence was found to be general negligence.

The line between malpractice and ordinary negligence is far from clear, and the court has hardly set a bright line test to know when a case is based on medical malpractice as opposed to ordinary negligence. Get that question wrong and ignore pre-suit requirements, and an otherwise very good claim can be barred forever.

Fine and detailed decisions and analysis at the start of your case can be the difference between winning and recovering nothing. Talk to the Miami personal injury attorneys at Gerson & Schwartz, P.A. today for a free consultation about your injury or malpractice case.

Image Credit: NZ Defence Force

On May 16, 2008, plaintiff Alcira Marcella Britt was hit by drunk driver Shanna Clayton who was employed as an exotic dancer at Club Lexx in Miami, Florida. Ms. Britt was obeying the law and driving safely when Clayton’s car crashed into hers, leaving her seriously injured. Britt’s injuries caused her disfigurement and unable to live as she had before. Her injuries were severe that and she has the ability to earn money, as well.

All of Britt’s pain and suffering were due not only to Clayton’s negligence, but also due to the negligence of the owners of Club Lexx. Actually, Club Lexx encouraged Clayton to drink with customers while working and then left her to drive home intoxicated. The defendant, Club Lexx, owed a duty to the plaintiff, Alcira Marcella Britt, as well as to the general public.  The club owners failed to supervise their exotic dancers as far as how much alcohol they were consuming while on the job.  Furthermore, knowing that their employees, such as Clayton would have to drive home at the end of their shift, this was totally irresponsible.

Club owners have a responsibility to put policies and procedures in place which assist intoxicated individuals to leave their premises at closing time, without having to operate motor vehicles on public roadways. Clubs should never allow employees to leave their premises, if they are intoxicated to the point where their normal faculties are impaired. Obviously, if they do so then they are endangering the public.

Continue reading →

Liberty City nightclub, The Spot, was the scene of a massive shooting on Sunday, September 28th early in the morning. The nightclub which is located at NW 7thave and 64th street in Miami, was hosting a party when gunfire broke out randomly throughout the club. According to sources, 15 people were shot, including many under the age of 21.  It was initially reported that the club obtained a liquor license this past April and was legally permitted to serve alcohol until 3 am.  Yet, its doors appear to have been open to minors of nearly all ages. In fact, a young girl only 12 years of age was in the nightclub during this shooting. One of those critically wounded was a 15 year old boy.

As the criminal investigation continues, more information about the potential negligent and illegal operations of this business are trickling in. Our Miami Crime Victim Lawyers are keeping a close eye on the criminal investigation and representing one of the innocent shooting victims. Earlier today, news reports were that the club manager was arrested. It was also reported that the club was licensed to operate as a business but not a “nightclub”.  Other news reports state that the “Spot” may only have been licensed to sell beer and wine only.

Under Florida common law negligence principals, property owners and operators have a duty to maintain their premises in a reasonably safe condition.  The latest news reports of numerous violations may be proof of not just ordinary but “gross negligence” under Florida law.  This could open the door to potential punitive damages under Florida Statutes 768. 72.

According to sources, there may have been 2 shooters involved. However, no suspects have been arrested. The only lead the police have is that the getaway vehicle may have been a white car.

Continue reading →

When a personal injury case goes to trial, many attorneys are prepared for the trial itself. They may line up witnesses, prepare evidence, and have a good working knowledge of trial rules. But many attorneys don’t realize how important it is to not only understand the rules of evidence at trial, but to also understand the rules of appeals.


Preserving Matters for Appeal

Contrary to popular belief, an appellate court cannot review just anything that may go wrong or be improper at trial. An appellate court can only consider arguments that are made at trial. This is often called “preserving” an issue for appellate review. And it means that a trial lawyer must understand what has to be done at trial to preserve problems for appellate review.

The reason why matters must be preserved is because, generally, an appellate court can only consider things that a trial court gets wrong. But if an attorney doesn’t bring an objection to the trial court’s attention, or give a trial court the opportunity to correct a mistake, the trial court has been deprived of the chance to rule correctly or incorrectly.

A well-timed objection is enough to sufficiently preserve an issue for appellate review. But the failure to object will often mean that even if there was a problem that affected the outcome of your trial, there is nothing an appellate court can do to overturn it.

Injured Plaintiff Loses Appeal Because of Failure to Preserve Errors

This principle was again emphasized in a recent case where a defense attorney made improper arguments in closing.

Once again, contrary to what you may see on movies or TV, an attorney making closing arguments can’t just say anything. Closing arguments must be limited to discussion of evidence that was presented at the trial.

The case involved a plaintiff whose nails were injured during a paraffin wax treatment. She testified that her nails were disfigured for at least nine months, but she provided no photos of her nails during that time period.

The defendant’s attorney argued at closing that the plaintiff’s nails had healed during those nine months—an argument not based on any evidence since there were no photos of that time period admitted into evidence. The defendant’s attorney also stated that “this is a courtroom, not a lottery,” implying to the jury that the plaintiff was simply seeking to strike it rich by bringing the claim.

Ordinarily, both of these comments would be improper, being comments based on information not in evidence.

Sure enough, the jury entered a verdict giving plaintiff only 20% of the damages she was seeking.

The plaintiff appealed, arguing those comments were improper and prejudicial. But the plaintiff’s attorney did not object to them at trial, and did not request a “curative instruction” –an instruction by the judge to the jury to ignore a comment made during the trial. The plaintiff’s attorney also failed to move for a mistrial.

The appellate court found that the arguments had not been properly preserved at trial. It acknowledged that the comments were incorrect, but simply found it was powerless to do anything.

The case again emphasizes the importance of timely objections, and the proper motions that must be made, to allow problems to be considered at the appellate level.

If you are injured, you want attorneys who understand not just trials, but appeals as well. Talk to the Miami personal injury attorneys at Gerson & Schwartz, P.A. today for a free consultation about your case.

Photo Credit: Wikileaks Mobile Information Collection Unit via Compfight cc