Articles Posted in General Litigation Issues

According to CNBC, the United States Department of Justice (DOJ) uncovered a $1 Billion scheme to defraud Medicare and Medicaid. As a consequence of this investigation the owner of more than 30 Miami-area nursing homes, Philip Esformes, was indicted by a federal grand jury in July of 2016. The DOJ also accused a physician’s assistant and hospital administrator for their role in stealing and laundering money from the federal government since 2009.  The depth and breadth of the fraudulent scheme shows how elders and the infirm are at the mercy of unscrupulous health care providers. Miami personal injury attorneys who have experience recovering damages for injuries and abuse in nursing homes will fight to protect your loved one in a nursing home or long-term care facility.

The DOJ alleges that Esformes, with assistance from the other individuals involved, bilked the faltering health care system to fund a ridiculously lavish lifestyle. All at the expense of some of our most vulnerable people in our community: the elderly and the poor. Prosecutors alleged that Esformes subjected his residents to unnecessary medical treatments so that he could bill Medicare for the treatment. Additionally, and perhaps most egregiously, Esformes allegedly drugged some of his patients with prescription narcotics. The over prescription of narcotics renders the patient incapable of weaning themselves off of the drug. As a result, the patient remained bound to the facility because they were addicted to the painkilling drugs. Prosecutors referred to this abuse as a “cycle of fraud.”

Local law enforcement authorities are aware of the problem. The United States Attorney for the Southern District of Florida, which represents the Miami-area, indicated that the South Florida area is replete with Medicare and Medicaid fraud. Consequently, law enforcement is paying close attention to facilities in the hopes of preventing this type of wide-spread fraud in the future.

Suing the government, whether it is the city or state or an arm or branch of government, seems like a given right. But in many countries, citizens have no right to sue the government because of a doctrine called sovereign immunity. Like many states in the U.S., Florida has enacted laws that specifically allow citizens to sue the government, thus waiving sovereign immunity.

Still, the government can’t be sued the same way private companies or people can. Sovereign immunity has many advantages to the government and its agencies, including a limitation on how much can be recovered in damages by an injured victim.

Who Gets Sovereign Immunity?

When there are trials on television or in movies, it is common that they skip or edit out much of the evidentiary arguments, the direct examinations, and often even opening statement. But one area that seems to be a great point of entertainment is the closing argument.

The public seems to be fascinated with closing arguments, which appear to be a free-for-all, where attorneys can say what they want and act how they want, often moving a jury to tears. But in fact, there are rules about what can and can’t be said at closing, many of which are ignored by pop culture’s depictions of trials.

gavelThe Rules of Closing Arguments

There are certain beliefs that we have about American justice that are crucial to an effective court system. One such belief is in the neutrality of our judges. That our judges will see our case impartially, without interference from public opinion, or their own personal beliefs. A recent case has upheld this idea, and it’s an important lesson in listening to what judges say while on the bench.

hammer-471884_1280

Judge Makes Comments During a Hearing

The case doesn’t involve a personal injury, but rather involves an insurance coverage dispute. A homeowners’ association (HOA) sued its own insurance company after the insurance company claimed that the insurance policy did not cover the repair of falling concrete in a parking garage.

The environmental dangers of playing in neighborhood parks have been brought to the forefront as popular playgrounds including Coconut Grove’s Blanche Park and Merrie Christmas Park are shut down for soil testing. First, Blanche Park, which is located on Shipping Avenue in the mid grove, was closed when high levels of the toxic chemicals arsenic and cadmium were found there. Now, Merrie Christmas Park, located on Le Jeune, road is the site for testing and research, overseen by City Commissioner Marc Sarnoff and Mayor Tomas Regalado. The next step will be that, all Miami public parks will be tested, in order to determine whether or not they are safe for children.

Personal injury law firms that specialize in premises liability cases such as Gerson & Schwartz, PA located in Miami, Florida can take action should any child or adult suffer serious injury from exposure to environmental contaminants due to negligence and hazardous activities on property. Damages can be recovered if a child has been exposed unlawfully chemical contaminants in water, soil, or dirt that causes them to become sick. If you or your child, has tested positively for high levels of poisonous substances such as lead or other heavy metals, and you believe that it is a result of a danger on the premises of another such as a school, public establishment, park, or playground contact Gerson and Schwartz PA. today for a free consultation.

Park research and testing will also include a historical view into what the land’s use was before it became an area for children’s play. According to records, the Blanche Park site was used to dispose of trash and served as a dump for incinerator ash. Evidence has shown that over 30 times the lawful limit for arsenic was detected, however. Although, there is conflicting evidence and the investigation is new and ongoing, this is alarming for any parent. Toxins such as metals found in the environment, that can cause severe illness, mental retardation, and cancer in individuals exposed even for a short period of time, can affect the health and safety of our children. This is a very serious matter.

Local long time hang out, sports bar and restaurant, Shuckers, located on the 79th street Causeway in Miami Beach, became a scene of chaos and serious injuries. Last night, the entire dock where patrons were eating , drinking, and watching the NBA Miami Heat Play off game, collapsed, suddenly. Innocent victims, including children went plunging into Biscayne bay of North Bay Village, along with their tables, chairs , foods and beverages. In some cases, patrons were trapped in between the dock planks or received injuries from flying tables and chairs.

This scene quickly turned into a rescue mission. As, bar tenders, wait staff, and fellow customers jumped into the water to assist victims. Over 50 fire rescue vehicles were dispatched and the entire 79th street Causeway was closed down for an extended period of time. The deck collapsed just as the Miami Heat scored , causing customers to jump out of their seats with excitement. Reports indicate that 24 people were injured, including a mother and her baby.

Miami personal injury attorneys can bring legal action against establishments such as Shuckers in premises liability accidents such as in this case as it appears that the dock and supporting structures were either negligently constructed or negligently maintained. According to published reports, there is a debate as to whether or not Shuckers had its dock inspected, despite representing that a routine inspection took place just 6 months ago.
Incidents like this should never occur, clearly, the dock at Shuckers was unsafe and customers’ lives were put at serious risk. The individuals who were injured can file law suits on their own behalf for pain, and suffering due to serious injuries they have endured.

Property maintenance and upkeep of structures such as the dock used by Shucker’s customers for dining is a reasonable legal requirement. A qualified injury that specializes in premises liability accidents can assist injured parties collect money damages for clients who have been the victims of such incidents.Gerson & Schwartz,PA, has handled collapsing dock cases in the past. Several years ago, Gerson and Schwartz, PA received a 2 million dollar verdict in a similar case tried in Atlanta, Georgia.

If you or someone you know were injured in a premises liability accident, due to the negligence of contact the personal injury law offices of Gerson & Schwartz, PA today. Contact (877) 475-2905 today or info@gslawusa.com for a free consultation today.

Continue reading

This past March, Florida’s Second District Court of Appeals tackled an important issue in the case of Smith v. Llamas, addressing the inquiry as to whether a Florida car accident victim’s injuries are temporary or permanent and if this question should be answered by a jury. The Court ultimately held that the permanency of injuries is a question of fact, and, as such, is the sole province of the jury.

In Smith, Fernando Llamas was injured in car accident when his vehicle collided with that of Shana Smith. Llamas sued Smith for negligence, claiming that that he had suffered significant injuries to his neck and knee in the accident. Smith maintained that she was only partially responsible for the collision and, pursuant to Florida’s comparative negligence doctrine, her liability must be reduced by the proportion of Llamas’ liability.

At trial, Llamas presented expert testimony by a neurosurgeon stating that Llamas’ neck injury was permanent due to the fact that surgery could not completely eliminate the injury. In rebuttal, Smith’s expert, an orthopedic surgeon, testified that Llamas’ neck injury was not permanent and was not caused by the accident.

Previously, this blog discussed the elements of product liability claims as they relate to recalls by the U.S. Consumer Product Safety Commission (“USPSC”) of various defective consumer products. Many times the circumstances associated with product liability claims spur attorneys to use a unique legal device to obtain recovery when multiple individuals have been injured.

When a sufficiently large number of people are injured by a product that was defectively manufactured or designed, the group’s legal claims may be pursued by means of a “class action” lawsuit.

A class action lawsuit is a type of legal claim that groups multiple individuals together so they can litigate their claims as one. In order to commence such an action, however, the class must first be certified by the court in which the lawsuit is filed. To be certified by the Court a class must possess four qualities:

Typically, when a person is injured in a car accident, the insurance company of the at-fault party will step in and attempt to settle the dispute on behalf of its insured. Sometimes, however, the insurance company is unable or unwilling to settle the claim, forcing the injured party to sue. The injured party may later receive a judgment against the insured party that exceeds the amount of the insured’s coverage, leaving him or her on the hook to the injured person for the full amount of the award less what was covered by under the insurance policy.

Under Florida law, bad faith claims allow the insured to sue his or her insurance company to recover the difference between the limit of coverage and the amount of the judgment if the insurance company acted in “bad faith” in attempting to settle the injured party’s claims. Last month, the United States District Court for the Middle District of Florida, issued an opinion in the case of Markel American Insurance Company v. Flugga discussing the elements of a bad faith claim and the elements necessary to establish such a cause of action.

In Flugga, Mark Flugga was found to be at fault for a 2010 motor vehicle accident in which he, his passenger, and two individuals in another vehicle were injured. Flugga’s insurance company, Markel American Insurance Company, was notified of the accident four days after it occurred.

Last month, the U.S. Supreme Court issued a landmark opinion in the case of Wos v. E.M.A. that protects the rights of those who receive settlements or judgements following an accident. Specifically, the ruling prevents states from taking unnecessary large portions of the award for Medicaid reimbursements.

In WOS a victim of medical malpractice and subsequent Medicaid recipient challenged a North Carolina statute requiring that up to one-third of any settlement recovered by a Medicaid beneficiary be paid to the State as reimbursement for payments made for medical treatment. The victim estimated her damages to exceed $42 million, but she eventually settled the claims for $2.8 million. The state court approved the settlement but put one-third of the recovery into escrow pending a determination as to the amount owed to North Carolina for Medicaid payments.

While the case was pending, the North Carolina Supreme Court issued an opinion holding that the irrebuttable statutory one-third presumption was a reasonable method for determining the amount due the State for medical expenses. The Federal District Court that originally heard WOS agreed with the North Carolina Supreme Court, but, on appeal, the Fourth Circuit Court of found otherwise. The U.S. Supreme Court granted certiorari to resolve the conflict between the Fourth Circuit and North Carolina Supreme Court.

In a previous case, the Supreme Court held that the federal Medicaid statute sets both a floor and a ceiling on a State’s potential share of a beneficiary’s tort recovery. The Court determined that federal law requires an assignment to the State of “the right to recover that portion of a settlement that represents payments for medical care,” but also “precludes attachment or encumbrance of the remainder of the settlement.”
Unfortunately, the earlier case did not establish how to determine what portion of a settlement constitutes payment for medical care, allowing North Carolina to adopt the statute presuming one-third a recipient’s the recovery represents compensation for medical expenses.
Writing for a 6-3 majority in WOS, Justice Kennedy stated that the statute’s arbitrary determination that one-third of every settlement was reimbursable to Medicaid constituted a violation of the Federal Medicaid anti-lien provision.

Continue reading

badges