Miami Accident Lawyer Blog

July 18, 2013

Florida’s New Medical Malpractice Law Spurs Legal Challenges Days Hours After Taking Effect

On July 1, 2013, Senate Bill No. 1792, codified in Florida Compiled Statutes at Ch. 2013-108, went into effect, and, within hours, spurred several legal challenges by Florida trial attorneys. The law allows physicians and defense attorneys to interview a physician regarding his or her patient’s treatment during the fact-finding period of a potential lawsuit without the patient’s presence, consent or knowledge. The statute also requires that any expert witness that testifies in medical liability must practice the same specialty as the defendant’s physician.

Physicians, hospitals, and other medical professionals owe their patients a duty to act with a certain level of care generally accepted within the medical industry. When medical professionals fail to satisfy this duty, the resulting negligence may result in liability for medical malpractice. As this blog has discussed before, between 1990 and 2010, nearly 10,000 medical malpractice judgments were paid out totaling $1.3 billion. In the cases underlying those judgments, death occurred in 6.6% of patients, permanent injury in 32.9%, and temporary injury in 59.2%.

The Florida Justice Association (“FJA”), a group comprised of Florida trial attorneys, is leading the challenge to the new law, claiming that it violates state privacy rights and the federal Health Insurance Portability and Accountability Act. According to the lawsuits filed by the FJA, allowing defense attorneys to contact nonparty physicians without patient consent will lead to illegal medical history disclosures. Critics of the law also contend that it will deter the filing of medical malpractice lawsuits for fear personal information will be improperly divulged.

July 10, 2013

First Lawsuit Regarding Miami, Florida Restaurant Deck Collapse Raises Premises Liability Claims

by Gerson & Schwartz, P.A.

Last month, thirty-three people were injured when the deck of North Bay Village waterfront restaurant Shuckers Bar & Grill collapsed while patrons watched Game 4 of the NBA Finals. According to Miami-Dade Fire Rescue Chief Dave Downey, there were more than on hundred people on the deck when it came down, sending dozens into Biscayne Bay. Of the injured individuals, twenty four were transported to local hospitals and two of them were in serious condition.

In late June, the first of what is likely to be several lawsuits against Shuckers was filed by a couple that claims they suffered bodily injury, mental anguish and disfigurement in the accident. According to the complaint filed in Miami-Dade Circuit Court, Shuckers had “a duty to properly maintain its property and to warn of dangerous conditions which it had actual constructive knowledge of” and to take action to remedy those hazardous conditions.

A North Bay Village Building Official indicated that a visual inspection of the deck revealed that the concrete surrounding the steel pilings that supported the deck had degraded. Although the Building Official had approved an inspection of Shuckers in January, the engineer who inspected the building admitted he did not inspect the deck.

July 1, 2013

AAA Study Concludes That Motorists Are Unable To Safely Multitask While Driving

by Gerson & Schwartz, P.A.

According to a recently released study conducted by the AAA Foundation for Traffic Safety, contrary to what many individuals might believe, motorists are incapable of safely performing both the various tasks necessary to safely operate a vehicle while engaging in another activity such as talking on the phone or texting.

The study, entitled “Measuring Cognitive Distraction in the Automobile,” sought to establish a method by which researchers could measure and understand “cognitive distraction” in motor vehicles by performing various experiments designed to assess the effect distractions had on the ability of participants to effectively operate a motor vehicle.
The study concluded that, as drivers were exposed to increased mental workload and distractions, their reaction time slowed significantly and their brain function became compromised. The detrimental effects of increased distractions resulted in driver’s scanning the road less and missing visual cues.
The study’s findings seem to debunk many motorists’ long-held belief that the use of hands-free technology to talk or text eliminates much of the danger associated with distracted driving. The study’s results indicate that the mental distractions caused by talking or texting are present even when motorist are able to keep their hands on the wheel and eyes on the road.
According to Gail Weinholzer, a AAA representative, a survey conducted by AAA found that “71% of all drivers believed that hands-free is risk-free and 50% of all drivers believed infotainment systems are not distracting. Both of those statistics could not be further from the truth.”
As this blog has discussed before, distracted driving is a serious problem plaguing Florida’s roadways. Of the more than 170,000 crash reports filed in Florida during the first ten months in 2011, over 100 involved motorists that were texting at the time of the accident.
Further, according report published by the National Highway Traffic Safety Administration, in 2009, 5,474 people were killed on U.S. roadways and another 448,000 were injured in motor vehicle accidents that reportedly involved distracted drivers. In distracted driving crashes that resulted in a death, 995 involved a cell phone as the distraction, and, of those accidents resulting in injury, more than 24,000 involved a cell phone.

The State of Florida has recently taken steps to curb the negative consequences of distracted driving, as Governor Rick Scott recently signed a bill banning motorists from texting-while-driving. The ban makes Florida the forty-first state to enact such prohibitions on the use of cell phones while driving. Although the ban on texting-while-driving may result in a decrease in distracted driving, the AAA study demonstrates that it will continue to be problem as long as motorists persist in using technological devices while operating their vehicles.

June 20, 2013

Federal Officials Adopt Provisions Limiting Truckers’ Maximum “Hours Of Service” And Imposing New Penalties For Violations

by Gerson & Schwartz, P.A.

Earlier this year, the U.S. Department of Transportation’s Federal Motor Carrier Safety Administration (“FMCSA”) adopted new regulations revising the hours-of-service (“HOS”) safety requirements for commercial truck drivers, which become effective July 1, 2013. HOS regulations limit the number of hours a truck driver may operative his or her vehicle during any given period of time.

The new rule retains some of the old regulation’s provisions, such as an 11-hour daily driving limit, but also changes and adds others. Specifically, new regulation reduces the maximum number of hours a truck driver can work in a given week by twelve, from 82 down to 70.

The rule also requires drivers that have just worked eight hours to take a break of at least 30 minutes before driving again. Finally, the rule requires drivers that max out their weekly hours to rest at least two nights a week from 1:00 a.m. to 5:00 a.m., which, according to the FMCSA, is when the driver’s “24-hour body clock demands sleep the most.” The rest requirement is part of the regulation’s “34-hour restart” provision that permits drivers to restart the clock on the work week by having at least 34 consecutive hours off-duty.

June 18, 2013

Study Published By Leading Research University Estimates Thousands Of Preventable Surgical Errors Occur Annually

by Gerson & Schwartz, P.A.

According to a study released late last year by the Johns Hopkins School of Medicine, approximately four thousand surgical “never events” occur annually in the United States. The study defines “never events” as those incidents for which there is universal professional agreement that should never occur during a surgery. The study, run by associate professor of surgery Dr. Marty Makary, attempts to quantify the extent of medical malpractice that occurs on a weekly basis across America.

According to the study’s estimations, a foreign object is left inside a patient during an operation thirty-nine times every week, an incorrect procedure is performed twenty times every week, and the wrong body part is operated on twenty times every week. The study also approximates that a staggering 80,000 never events have taken place in hospitals from 1990 to 2010, however, the actual quantity of such occurrences is likely higher.

Using the National Practitioner Data Bank (“NPDB”), a federal database comprised of medical malpractice claims, the study analyzed nearly 10,000 medical malpractice judgments that were paid out between 1990 and 2010. With this data, the study was able to estimate that never events happen in the United States at a rate of 4,044 per year. The NPDB data compiled by researchers revealed that malpractice judgments and claims totaled $1.3 billion during the period covered by the study. In the cases studied, death occurred in 6.6% of patients, permanent injury in 32.9%, and temporary injury in 59.2%.

June 14, 2013

Shuckers Dock Collapses into Water Injuring Customers

by Gerson & Schwartz, P.A.

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 & 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.

June 8, 2013

Florida Ranked In Top Ten For Dog Bite Claims

by Gerson & Schwartz, P.A.

Recently, WFLA reported that, according to a report by insurance company State Farm, Florida ranks in the top ten states for dog bite claims. According the report, in 2012, Floridians made 123 dog bite claims which resulted in pay-outs of $7.1 million, ranking Florida eighth in the country. California was ranked number one, followed by Illinois and Texas at two and three. State Farm paid-out approximately $108 million for dog bite claims in 2012, and estimates there are more than 4.7 million dog bites each year.

Despite a common misconception to the contrary, dogs are not permitted one “free bite” under Florida law and, in fact, the law states quite the opposite. Florida Statutes Section 767.04 states in part:

The owner of any dog that bites any person while such person is on or in a public place, or lawfully on or in a private place, including the property of the owner of the dog, is liable for damages suffered by persons bitten, regardless of the former viciousness of the dog or the owners’ knowledge of such viciousness.

June 6, 2013

New Jersey Woman’s Federal Lawsuit Against Miami Beach Hotel Raises Premises Liability Questions

by Gerson & Schwartz, P.A.

According to a recent federal civil lawsuit filed by New Jersey resident Anna Burgese, she was attacked by prostitutes in the lobby of Miami Beach’s the W Hotel earlier this year. The suit claims that Burgese was “grabbed from behind and thrown with great force into a stone wall head-first” and “tackled to the ground and struck” by a group of prostitutes that had mistaken Burgese for their competition.Burgese, along with her husband Joseph Burgese, are suing Starwood Hotels and Resorts, the parent company of the W Hotel, for negligence, premises liability, assault, civil liability for criminal activity, and loss of consortium. According to the complaint, the W Hotel “fosters a prostitute-friendly environment” and Miami Beach Police informed the Burgeses that the attackers “may have been under the influence of alcohol and/or drugs and confused plaintiff Anna Burgese as competition, i.e., another prostitute who was capturing business at the hotel.”

The suit has also named several Jane Does as defendants, a legal tactic commonly used as a placeholder when the identities of defendants are unknown. The yet unidentified Jane Does include the individual that actually attacked Burgese, a group of women that was allegedly encouraging the attack, and another person that hailed a taxi for the attacker after the incident.

One claim of particular interest in the Burgeses’ lawsuit is that for premises liability against the hotel. As this blog has discussed before, premises liability refers to a legal duty that property owners have to maintain their premises in a reasonably safe manner. The extent of the duty owed will depend on the type of relationship between the owner and the injured party, specifically, whether the person was a: (1) invitee (individual who enters a property for business purposes); (2) licensee (individual who enters a property for social purposes); or (3) trespasser (individual without permission to enter onto a property).

May 23, 2013

Florida Court of Appeals Declares That Permanency Of Car Accident Injuries Is A Decision For The Jury

by Gerson & Schwartz, P.A.

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.

May 22, 2013

Florida Court Holds That Co-Owners Of A Vehicle Are Liable For Each Other’s Negligence

by Gerson & Schwartz, P.A.

Earlier this year, Florida’s Second District Court of Appeals addressed the question as to liability of a co-owner of a vehicle for injuries caused by the negligent driving of the car’s other owner. In Ortiz v. Regalado, Andy Ortiz (“Andy”) was driving a car which he co-owned with his father when he collided with the vehicle of Lourdes Falcon, killing Ms. Falcon’s daughter who was a passenger.

Ms. Falcon filed a lawsuit, claiming that Andy was negligent in causing the accident and that his father was vicariously liable for Andy’s negligence as joint owner of the vehicle. As this blog has discussed before, vicarious liability, or respondeat superior, is a legal theory under which the superior, in this case Andy’s father, is held liable for the acts of his or her subordinate, in this case Andy.

After a trial, a jury found that Andy and Ms. Falcon were each 50% at fault for the accident and awarded Ms. Falcon a judgment for approximately $1.4 million in damages. Under Florida’s comparative negligence law, each party to an accident is held proportionately liable for damages resulting from his or her negligence. Accordingly, the court ordered Andy and his father jointly liable to pay half of the $1.4 million judgment.