Injury Law Blog : Florida Injury Lawyer & Attorney : LaBovick Law Group : Serving West Palm, Boynton, North Palm, West Palm Beach, Jupiter

Earlier this year, two old friends set out from Port St. Lucie, FL to the Virgin Islands on a sail boat. The two gentlemen are 86 and 71 years old. They had invited another friend who turned them down and warned them that the currents and winds would make the trip too difficult if not dangerous. The friend proved to be right. The sailboat lost power, and the two men drifted at sea for seven days before being rescued. Thankfully, they were alright.
After the rescue, it was learned that the vessel was woefully under-supplied and provisioned. It did not have handheld VHF radios, emergency personal beacons (EPERBs) to give off radio signals, or even flares. Apparently, the owner was too cheap to purchase these items. Any of these items alone may have been enough to speed up a rescue.
Every boater must take an inventory of their vessel and account for safety equipment before going out on the water. The US Coast Guard sets for the standard minimum requirements, but boaters should always go beyond these minimums when venturing into a trip of this magnitude.
Any overseas trip dictates the presence of back-up radios, EPERBs, flares and other provisions to account for every perceived incident. A seasoned boater should know better, and a novice has a duty to himself/herself and any passengers to find out how to safely equip the vessel. Every captain has a legal duty to use reasonable care under the circumstances to protect the passengers and crew. This duty cannot be breached or delegated.
These two fellows had no business being on the ocean for a trip of that nature and especially being completely unprepared for such an event. They got lucky this time.

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I always hated going to the dentist.  Not only does the sound of the drill make the hair on my neck stand on edge, but the smell is terribly distinct.  There is just something sickly sterile about the dentist office.  But, in their defense, the smell was good marketing.  I would say to myself, “it is such a sterile smell; it must be 100% germ free in here.  At least I won’t get sick!”  Well, not so fast!  More than 7,000 patients in Oklahoma are now at risk for HIV and Hepatitis because of their dentist!  

The dentist at the forefront of this issue is Dr. Scott Harrington.  He is facing what could turn into criminal charges for permitting uncertified dental assistants to work in his office.  They were allowed to complete dental procedures, and they did so in unapproved and unsafe fashions.  The former patients are now lining up to get tested for HIV, Hepatitis B and C, and any other diseases that could have been transmitted by the dental office.  Not only did the office use “rusty equipment” (ABC News on 3/29), but they allowed unlicensed assistants to administer IV sedation with reused needles and old drug vials.  They even improperly sterilized the tools by using bleach, which caused them to corrode.

Dr. Harrington has voluntarily suspended his license and is cooperating with the investigation.  Only one person was found to have Hepatitis C thus far, but literally thousands have to be tested.  

It just goes to show you that you can’t trust your nose when it comes to a clean environment!

LaBovick Law Group is interested in many forms of consumer advocacy. While we do not handle dental malpractice, we do understand the gravity of what doctors do for a living.  We support a strong and fair system of justice where doctors are given the ability to practice without worry of frivolous lawsuits, and patients have the right to find justice if they are injured through the negligence of a medical provider.  Most of our doctor/clients support this fair analysis of the justice system, and all of us in the medical and legal community are horrified that such a terrible practice occurred.  We wish the victims of this criminal act the best and hope they find that they are not afflicted by any of these terrible ailments.

 

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A majority of those living in the state of Florida, at one time or another, has been involved in an auto accident. Whether it be in a parking lot fender bender or a highway collision, more often than not the police arrive. The investigating officer will go to each driver and ask them what happened. This is done during the course of an accident investigation. The accident investigating officer's intentions in interviewing the drivers is to obtain a factually accurate account of the incident. The purpose of this is to document the crash and determine who, if anyone, will be given a citation – in other words, who is at fault.

 The accident report is also used for insurance purposes. Carriers rely on these action reports to assess fault in order to pay property damages and injury damages. However, the statements of anyone involved in the crash given to the investigating officer during the accident investigation are privileged.

This means a driver confessing to causing the accident can be assured that the statement will be inadmissible in a court of law to prove liability. This seems incredible. However, the public policy behind the accident report privilege is to allow participants in a crash to convey freely and accurately information relating to the cause of the crash to the investigating officer. If the law allowed for these admissions to become evidence in any subsequent trial, it would have a dampening effect on the willingness of an individual to speak freely about the incident. In other words, the public policy of obtaining accurate information relating to a crash outweighs the admissibility of these confessions to establish liability in subsequent court proceedings.

Therefore, every driver or participant in a crash should feel comfortable about talking to the officer and relating accurately what they know about the crash without fear of having the information used against them later.

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As a personal injury attorney, I deal with countless victims who suffer due to the negligence of others.  Oftentimes, the person who caused the injury will attempt to place some of the blame on the injured person.  Sadly, sometimes they are correct, and the injured party was partially at fault. 
 

Let’s imagine a case where a small child is injured in a motor vehicle accident due to a negligent driver who ran a red light.  Clearly, the person that ran the red light is at fault.  However, what if the parent of the child failed to properly secure the child in a child seat? 
 

What if the injuries could have been prevented? What may the outcome have been if the parent would have simply followed the proper child restraint protocols?  Should the person that ran the red light still be solely liable? 
 

Pursuant to Florida law, if a jury assigns fault to the parent of the minor child, the percentage of fault will be deducted from the final judgment in the case.  Nevertheless, the parent can still recover the percentage of fault assigned to the other driver.  Thus, even if you are partially at fault in an accident, you can still recover if you were injured.  If you are being told you are solely or partially responsible for an accident, seek legal advice immediately.
 

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Studies have shown that texting and driving can be as dangerous as drunk driving. The Florida legislature just passed a ban on driving and texting. In doing so, our state has joined 40 others that have bans on texting while driving. BUT, the bill did not go through in its original form and was somewhat diluted by the time it passed.

What does the new Florida “no texting while driving law” mean for Florida drivers?

This  new law will be a secondary offense; in other words, the driver must be doing something else to get him/her pulled over for a traffic stop than just texting, like  careless driving, failing to stay in a single lane, etc.

Now that texting is illegal while driving in Florida, can cell phone records be searched?

Under the new law, a driver’s cell phone records can only be  discoverable if an injury or death results from a crash.

 As a second offense, this new law is similar to the seatbelt statute. It’s not ideal, but it’s a start.

Progress goes slow, but we have to start somewhere. Along with this new law, Florida judges have finally started granting motions to seek punitive damages to punish an at-fault driver of a crash who was texting and driving. Be careful and use your common sense while behind the wheel.  

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Once again Carnival Cruise Lines finds itself in the news. This time two passengers were lost at sea off the coast of Australia after either falling or jumping off the Carnival Spirit. Evidently, the missing couple went overboard at approximately 9 PM off the coast of Australia.

The pair was part of a larger group of family and friends. It is believed they went missing from the balcony of their state room. Carnival Cruise Lines crew conducted a thorough search of the ship before declaring the couple lost at sea. Thereafter, the vessel circulated the area in an effort to find them in the ocean, but the pair was never located. The investigation is ongoing, and the Australian maritime safety authority is participating. The search area was approximately 120 square nautical miles. The carrier still holds hope that the couple can be found but acknowledges that with every hour the chances of finding them alive, or even at all, diminishes rapidly.

Sadly, a number of Carnival ships have involved tragedies lately. Industry insiders believe that many of these mishaps could have been avoided with better safety and maintenance. However, it is practically impossible to eliminate the chances of a person going overboard. Cruise passengers must use common sense and conduct themselves prudently aboard a ship.

There are many reasons why a person would go overboard. Consumption of alcohol is the primary reason, other folks have attempted suicide and a few have been the victims of crime. Sometimes these cases result in the cruise lines liability. However, the survivors must show that the cruise line breached its duty of care under the circumstances. Further, the matter is complicated by the Death on the High Seas Act. These types of cases can be very tricky and require a certain set of skills by the attorney representing the surviving spouse or family. Notwithstanding, every passenger should consider safety first.

If you have any questions about this cruise accident or one you may be involved with, feel free to contact me any time.

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We want to keep our readers informed and safe. Below, you will find a list recent recalls and alerts announced by the National Highway Transportation Safety Administration’s (NHTSA) Office of Defect Investigation (ODI). If you think your vehicle needs to be inspected, bring your car to your local dealership right away: 

Subaru Forester Recall Began at the End of April 2013

Subaru has issued a recall of Forester vehicles manufactured between January 2013 and March 2013. This recall was set in place because many floor mats were defectively manufactured, causing them to curl and therefore obstruct the driving pedals.  Brake or accelerator pedal interference may result in driver distraction, high driving speeds and difficulty stopping.

Couragia A/T Tire Recall Began at the End of April

A recall has been issued for approximately 8,513 defective Couragia A/T tires for failure to comply with safety standards regarding "New Pneumatic Radial Tires for Light Vehicles." Tire sizes P265/75R16 116S with DOT Serial Numbers UX77 3210-UX770813 may experience tread shoulder chunking that can cause crash and injury due to excessive heat.

Multiple Manufacturers Issue Defective Air Bag Recalls To Begin in May

A massive recall for Nissan, Honda, Toyota, General Motors and Mazda has been issued due to a safety defect of the frontal airbag that has the potential to cause significant harm to vehicle occupants.  These airbags may produce excessive internal pressure causing the bag to rupture with the potential for metal fragments striking and causing injury to occupants. More than 826,000 vehicles are included in this recall class.

·         Nissan:  2001-2003 Maxima, Pathfinder, and Infiniti I35; 2002-2003 Infiniti QX4; and 2003 Infiniti FX35 and FX45 and possibly certain Sentra vehicles. 

·         Honda:  2001-2003 Civic, 2002-2003 CR-V and 2002 Odyssey vehicles. 

·         Toyota & General Motors Recall Details: 2002 - 2004 Toyota Corolla, Corolla Matrix, Sequoia, Tundra, Lexus SC and Pontiac Vibe vehicles. 

·         Mazda Recall Details:  2003-2004 Mazda6 vehicles manufactured January 14, 2003 through May 29, 2003; and 2004 RX-8 vehicles manufactured June 25, 2003 through June 30, 2003.

Nissan Brake Failure Defect of Pathfinder and Infiniti JX vehicles Expected to Begin May

Nissan has issued a recall of these vehicles manufactured December 3, 2012 through January 29, 2013 due to structural weakness in the brakes, potentially causing brake failure and increasing crash risk.

Nissan Defective Tire Recall Begins May 3, 20103

Nissan has issued a recall of Altima vehicles manufactured between March 21, 2012 and March 26, 2013 due a spare tire defect. In some cases, these spare tires have been incorrectly inflated causing potential tire failure and a risk of great injury.  

Honda Fit Recall Expected to Begin May 17, 2013

Honda has issued a recall of Fit Sport vehicles due to safety issues of the electronic stability control system.  The safety defect in the ESC system of the affected vehicles may increase the risk of a crash.

Several Chrysler Recalls Begin in April and May

·         2013 Dodge Ram 1500: Vehicles manufactured December 17, 2012 through January 22, 2013 were recalled due to a parking brake cable equalizer that was set incorrectly.

·         2013 Dodge Ram 2500 and 3500:  Engine covers on vehicles manufactured January 7, 2013 through March 6, 2013 were recalled due to a manufacturing defect that may allow excessive heat to be trapped under the engine cover. 

·         2007-2008 Dodge Nitro and 2008 Jeep Liberty: More than 60,000 vehicles have been recalled due to a defect potentially causing the drive shaft to break. The defect may cause the transfer case heat shield to drop down and rub on the drive shaft, therefore weakening it and potentially causing the drive shaft to break.  If the drive shaft breaks, the car computer will deploy the airbags, thinking the vehicle is involved in a crash, thus potentially causing a crash.

·         2012 Jeep Patriot and Compass:  More than 20,000 vehicles manufactured October 18, 2011 through May 7, 2012 have been recalled due to a manufacturing defect causing the engine to stall.

·         2011-2012 Chrysler 300, Dodge Challenger and Dodge Charger: Air bags in vehicles manufactured April 11, 2011 through December 14, 2011 have been recalled due to airbag sizing issues in certain vehicles that may cause the seat side-airbags to malfunction and illuminate the airbag warning light. If a crash does occur, the airbags may not deploy as they were designed to operate, increasing the risk of injury.

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Auto accidents can happen for many reasons. Most commonly, the cause is driver distractions, including drunken driving.  

In personal injury cases, suing a negligent driver is fairly straight forward. Yet, when the driver is drunk, other elements come into play. For example, if the driver is a minor, the person or business that served the minor can be held accountable. There is also a zero tolerance policy in the state of Florida when it comes to minors who may be driving intoxicated. Any driver under 21 years of age who is stopped by law enforcement and has a breath or blood alcohol level of .02 or higher will automatically have their driving privilege suspended for 6 months. This is an administrative suspension and does not reflect as a DUI on the driver's record. If the driver refuses to take a test, their driving privilege is automatically suspended for one year.

When a driver is an adult, it is much tougher to blame an establishment. If the driver was drinking at a business, the injured party must prove that the establishment knew the driver was a habitual drunk. This can be done in a variety of ways, including the frequency that the driver comes to the business and his/her drinking habits.

As odd as it sounds, a person can be a first-time customer of a bar or restaurant, have too many drinks, drive away to hurt someone, and the establishment can still be blamed. But this is only if the establishment knew the customer was a habitual drunk. That is why it is important to hire an attorney who is well versed in this area of the law and knows how to properly pursue a case where an establishment serves too many drinks to a customer who later causes harm to another.

 

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You think you have auto insurance coverage? What happens if a guest in your house borrows your car and then causes an accident? Are you covered? Yes it would seem. Not so fast. Many factors have to be considered before answered in the affirmative. If the guest is a relative the answer comes much easier in favor of coverage. However, if the vehicle is a company car and the employee has a contract forbidding others from driving the car, the answer is harder to find. Factors such as whether the guest, residents of the house knew the company car could not be driven by anyone other than the employee. Also, how the keys were stored is also considered. Typically, the car must be converted or stolen by the driver for the insurance company to escape coverage. But if the "borrowing" somehow violates the language of an insurance policy of employment contract, the owner may find himself without coverage. Everyone should be clear as to what their insurance actually covers.

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We all hear and see from the media the dangers of texting while driving an automobile. It doesn't take much to imagine that having your focus on a small phone while driving a vehicle is a bad idea. However, did you know that doing so could lead to punitive damages being assessed against you? Punitive damages are not dischargable in bankruptcy and will result in your driving privileges being permanently suspended until they are paid in full.

 Still want to text and drive? Think again, Palm Beach County Judge Brown has recently entered an order allowing an injured driver to seek punitive damages against a defendant who was texting while driving. The records from the cell phone company, 911 call recording, driver’s deposition and police officer testimony all provided a sufficient basis for seeking such damages. What does this mean in the long run? No insurance coverage for punitive damages, no discharge of punitive damages in bankruptcy court, and permanent lifetime suspension of driving privileges if the eventual award is not paid. Still want to text and drive? Think again.

 

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This week the Supreme Court of the United States handed down an important decision facing all personal injury litigants and the attorneys who represent them. McCutchen was a US Airways employee who was injured by a third party. McCutchen had a company health insurance policy that paid his medical bills. The policy is one commonly referred to as an ERISA policy. These types of policies typically call for 100% reimbursement of benefits paid as a result of the negligence of a third party.

Non-ERISA policies follow the Medicare reduction formula. These types of reductions, in most instances, result in some recovery for the injured party. The ERISA policies can often result in no recovery for the injured after attorney’s fees and costs are accounted for.

In the McCutchen case, US Airways wanted the entire settlement to cover its benefits paid, leaving nothing for the injured/insured or the attorneys. US Airways attempted to take the entire settlement amount by asserting priority over attorney’s fees and costs. In denying this claim, the Court stated that unless the policy language specifically eliminated the attorney’s fees and costs, then the court would not disturb the concept of a common fund, which up to this point protected attorney’s fees and costs. However, the message the Court has sent is that the drafters of the ERISA policies are left open to creating policy language that could prevent the recovery of attorney’s fees and costs.  

It is expected that more and more of these policies will contain this language. The fallout from this is that many injured people will have a hard time finding counsel if they have an ERISA policy that contains a pure 100% reimbursement clause. This has a downside for the carrier as well. Without counsel for the insured, the carrier has no chance of reimbursement. This is a classic case of “be careful what you wish for”…you may get it.

 

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People injured by government employees are currently restricted in the amount of damages they can recover without a claims bill being pushed through the legislature. The “cap” now is $200,000.00 per person and $300,000.00 per incident. This has long been viewed as unfair and draconian. Seriously injured folks, catastrophically injured, have been denied full compensation under the current law. Take for instance the case of a North Palm Beach man who was run over by a school bus leaving him unable to care for himself. The town settled the case for 1.9 million dollars but the man is still waiting for his money more than two years later. Very few of these “claims bills” pass and they are politically motivated and controlled by Tallahassee insiders. Reform, however, is on the way. The new proposed system would require municipalities to carry insurance with limits of 3 million per person and 4.5 million per occurrence. Those municipalities that choose to not carry insurance would be subjected the amount a jury would award regardless of the caps. Attorney’s fees would still be limited to 25% of the gross amount. Critics on both sides are complaining. Tort reform advocates see nothing wrong with the current system. Advocates for the citizenry say the new caps are too low. This is an excellent start to hold the municipalities accountable for the negligence of their employees. Obviously, work still needs to be done by the lawmakers to hammer out an acceptable new law, but it’s a start.

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As expected, most people associate brain injuries with catastrophic accidents.  However, even minor accidents can cause brain injuries.  According to the Centers for Disease Control and Prevention (CDC), automobiles accidents and falls are the leading cause of mild traumatic brain injury (MTBI).  Furthermore, while early symptoms appear mild, they can cause serious life-long changes in an individual’s ability to function physically, cognitively and psychologically. According to the CDC, the following are the symptoms of a MTBI:

COGNITIVE SYMPTOMS: Attention difficulties, concentration problems, memory problems and/or orientation problems.

PHYSICAL SYMPTOMS: Headaches, dizziness, insomnia, fatigue, uneven gait, nausea, blurred vision and/or seizures.

BEHAVIORAL CHANGES: Irritability, depression, anxiety, sleep disturbances, problems with emotional control, loss of initiative and/or problems related to employment, marriage, relationships, home management, or school management.

If you or a loved one is experiencing any of the following after an accident, seek immediate medical attention.  

For more info: http://www.cdc.gov/ncipc/pub-res/tbi_toolkit/physicians/mtbi/mtbi.pdf

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After weeks of speculation regarding the future of PIP in Florida, Governor Rick Scott has announced he will not nix PIP without giving more effort to the system many see as broken. This bodes well for many health care providers who service patients that have been involved in auto accidents. Currently, certain monies up to ten thousand dollars are allocated for treatment of injuries caused by auto accidents. If the injuries are deemed not to be emergent, the cap is $2,500.00. This is the last incarnation of the statute dealing with PIP. It was done in an effort to slow down and hopefully eliminate fraud in the system. Professionals from all sides who deal with PIP agree the current statute is cumbersome and may be unconstitutional. The legislature had been giving much thought to scrapping PIP in favor of mandatory bodily injury limits. That system has appealed to some, but the PIP system is a better fit for Floridians. Many drivers here are uninsured and PIP allows an injured party to get the treatment needed. Without PIP many great health specialists will stop treating accident victims and that benefits no one.

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