Nothing contained on this page, or in any blog entries, should be considered legal advice. Please consult a lawyer to ask about your specific legal questions. Although your situation may be the same or similar to those written about, the information in this blog should not be relied upon in any way. Although you may be a client of Saunders Law Group, the information on this website is not intended to communicate with you regarding your specific case. Please contact our office and speak to an attorney regarding any question you may have. We will gladly make ourselves available.
There are many differences between a normal car accident and an accident involving a semi-truck. Perhaps the most significant difference is that trucking accidents have the potential to cause a lot more damage.
Trucking Accidents Can Cause Significant Damage
Semi-trucks can weigh anywhere between 38,000 pounds to 80,000 pounds when fully loaded. If an average car weighs 4,000 pounds, then a semi-truck will usually weigh somewhere between 10 and 20 times as much as a car. That much weight traveling at highway-type speeds creates a lot of inertia, making the semi-truck difficult to stop in case it is necessary. Even at non-highway speeds, a semi-truck is generally significantly larger and heavier than the average vehicle and can cause a tremendous amount of damage if maintained, driven or maneuvered negligently.
Evidence Must be Gathered Quickly
Truckers and trucking corporations are governed by the Federal Motor Carrier Safety Administration, which regulates things like safe carry limits, equipment standards, safety inspections, and so on.
Therefore, if you have been in a trucking accident, it is important to get legal representation quickly. At Saunders Law Group, we move quickly to fully investigate maintenance logs and inspection records to determine whether the accident may have been caused by negligent maintenance, a vehicle malfunction or driver oversight.
The Insurance Carrier
Another difference is that the driver will most likely be working for a trucking company, so instead of having individual insurance, the trucking company’s insurance and lawyers will be involved in the case. Many insurance companies have departments dedicated to handling claims arising from trucking accidents.
With as much experience as they have in dealing with trucking accident cases, it is important to have someone on your side with just as much experience. At Saunders Law Group, we have handled cases against truckers, trucking companies, and companies who use semi-trucks as a part of their business. We can use our experience against drivers, owners and operators of semi-trucks to advocate for you if you or a loved one ever becomes involved in an accident with a semi-truck.
In a case such as this, we do not charge a fee unless we recover compensation for you, so do not hesitate to schedule a consultation with an attorney at Saunders Law Group.
In 2011 there were 758 paid medical malpractice cases in Florida, ranking it fourth amongst US states, according to Kaiser State Health Facts. Only Pennsylvania, California, and New York had more paid medical malpractice cases.
Because of this, it is important for patients in the sate of Florida to be aware of what constitutes medical malpractice, so that they may guard themselves with the assurance of legal action if medical professionals treat them negligently. Medical malpractice refers to professional negligence by a health care provider in which treatment provided was substandard, and caused harm, injury or death to a patient.
By this definition, malpractice can mean giving the patient a wrong dosage or wrong medication, misdiagnosing the patient, or even staph infections. However, there are a few tests to prove medical malpractice:
- Failure to provide a proper standard of care – patients have an expectation of receiving good care from health care professionals.
- Injury caused by negligence – a patient must prove that their injury was a result of negligence—being dissatisfied with the outcome of treatment is not enough to constitute malpractice.
- Catastrophic injury – in order for a malpractice lawsuit to succeed, the damages to the patient must be very serious, because if the patient’s injury is minor, more will be spent on the case than will be recovered.
If you have questions about a case that you believe could be considered medical malpractice, please contact us for a free consultation.
On October 1st, 2012, the United States Supreme Court opened its current session. This year, the Supreme Court will address a question that frequently impedes personal injury or wrongful death settlements. The question before the Supreme Court will be to what extent a victim of personal injury must repay ERISA based health plans for medical expenses paid by the medical insurance provider when there has been a settlement of that personal injury claim.
The typical situation is not unlike the following fact pattern: An individual is injured when his or her vehicle is hit by an at fault driver. A settlement is offered in response to the individual’s claim for personal injury. The individual wants to accept the settlement offer but a health care insurance company, which has paid some or all of the injured individual’s medical bills, refuses to authorize the settlement unless the medical insurance provider is repaid—in full—for all medical expenses it has paid on the injured party’s behalf.
Certainly, in some cases, repayment of some amount to the medical insurance provider may be warranted. However, in most cases, available insurance proceeds for the injured person are insufficient to pay for the injured person’s total damages. When a health insurance provider is demanding payment in full of all health insurance costs paid, the injured person can end up with nothing.
Consider, for example, an individual injured through no fault of his or her own. Hospital and other medical expenses paid by an ERISA based health plan total $100,000.00. The at fault driver has no assets that can be used to satisfy a judgment and the limit of the at fault driver’s insurance is $50,000.00. The insurance company for the at fault driver wants to pay its policy limit of $50,000.00 in exchange for a full release of the at fault driver. The injured individual, realizing that $50,000.00 is the most that can be recovered, wants to accept the policy limit.
With an ERISA based health plan demanding full payment of all monies it has paid under the health plan, the injured individual will receive no monies from the settlement. What happens to that portion of the $50,000.00 that is paying for the individual’s pain and suffering or lost wages or future out of pocket medical expenses?
The aggressive stance taken by ERISA based health plans is based upon a United States Supreme Court decision known as Sereboff v. Mid Atlantic Medical Services where the Supreme Court held that ERISA based health care plans can seek reimbursement from an injured individual who receives a settlement that includes past medical bills. The Supreme Court did not, however, tell those ERISA based health care plans just how much reimbursement they can receive. Without specific direction from the Supreme Court, most ERISA plans have continued to insist on full repayment even when that leaves the injured person without any monies in their pocket despite at times devastating injuries.
The case of U.S. Airways v. McCutchen is before the Supreme Court this term and presents the Court with an opportunity to determine just how much reimbursement is required. Since the injured party likely has contracted with an attorney to pay a certain percentage of any recovery as an attorney fee, shouldn’t the ERISA plan be required to at least reduce its claim for reimbursement by the percentage of attorney’s fees paid? What about the expenses that the injured person has had advanced on his or her behalf to successfully resolve the claim? Shouldn’t the health care insurance company pay at least a pro-rata share of these? What of the situation where the Plaintiff’s has future medical procedures that will be required? Should some of the settlement be set aside to cover out of pocket expenses for these future medical procedures? How about the pain and suffering that the injured person will suffer for the rest of his or her life?
We will watch carefully as the U.S. Supreme Court issues its opinion in this case which hopefully will give consideration to the individual loss and not just consider the wishes of the insurance industry.
The American Psychiatric Association (APA) maintains a manual listing all of the recognized mental health disorders in a publication known as the Diagnostic and Statistical Manual of Mental Disorders. This manual is commonly referred to as the “DSM” and the APA is getting ready to publish its fifth edition. The manual will be known as “DSM-5”.
One of the largest debates facing the APA task force charged with updating the DSM was whether to include Parental Alienation Syndrome as a recognized mental health disorder. Those individuals involved in a family law dispute may have come in contact with a situation where a parent is perceived as actively taking steps to cause an estrangement between a child and the other parent. This activity is commonly known as Parental Alienation Syndrome and it can be, if proven, a powerful tool in determining the scope of parenting plans in custody disputes.
The decision by the APA is not without controversy. One the one hand, a significant and serious group of individuals and associations advocated that inclusion of Parental Alienation Syndrome in the DSM-5 would provide fairness in a system designed to develop parenting plans and visitation schedules. These advocates believed that official recognition of the disorder would assist judges and practitioners in being able to identify parents whose behavior was harming the child by alienating that child from the other parent.
Opponents of inclusion questioned whether recognizing Parental Alienation Syndrome as a mental health disorder was merely going to be a windfall for psychologists and other experts who could be expected to generate revenues from consulting on the syndrome either in or out of Court.
Women’s groups in general advocated against inclusion of Parental Alienation Syndrome into the DSM-5 as most found the science both unproven as well as a tool that could be abused by parents who were trying to justify behavior towards a child that was outside of societal norms.
Regardless of its inclusion in the DSM-5, there are clearly situations where one parent is actively trying to reduce the value of the other parent in the child’s eyes. The child is the one human being in the equation who is almost certain to be harmed by such behavior. However, family law practitioners and individuals experiencing Parental Alienation Syndrome in their relationship should take heart in the notion that Judges are very attuned to activities of parents designed to negatively impress a child relative to the other parent. It is generally not required that an expert come into Court and explain Parental Alienation Syndrome to the Judge. The Judge is usually an experienced individual and very often a parent. Factual presentations of actual events and the impact of such events on the child can demonstrate Parental Alienation Syndrome sufficiently without an expert and without inclusion in the DSM-5 so as to permit a Judge to fashion a parenting plan that takes into account the harmful impact of alienation.
In our experience, it is not the label that is placed on activity that controls the outcome of contested custody disputes. Rather, a close and carefully presented evidentiary plan will demonstrate that a parent is actively interfering in the relationship between a child and the other parent.
Finally, one should not discount the potential that there are times during a child’s development that the child simply prefers not to be around another parent for reasons unconnected with parental alienation. The awareness of children to the acrimony surrounding them during a divorce can just as easily sway a child away from one parent as can active attempts at alienation. A child’s unwillingness to be around a parent must be explored to determine if alienation is occurring or if the problem is the result of a not unnatural reaction to the divorce process itself.
House Bill 119 deals with Motor Vehicle Personal Injury Protection (or “PIP”) and was signed into law by Governor Rick Scott on May 4, 2012. The Bill was touted as being designed to reduce the rates charged by insurance companies to consumers for mandatory PIP coverage. The Bill is supposed to accomplish this by fighting PIP fraud. The Bill revised the medical fee schedule, limited the healthcare professionals that may treat injured motorists and passengers eligible to make PIP claims and limited the amount of PIP benefits that can be paid for non-emergency treatment. The bill also changed how personal injury lawyers get paid to litigate PIP cases.
Many of the Bill’s provisions go into effect January 1, 2013. However, as part of the requirements of the Bill, insurance companies were to submit proposed rate changes by October 1, 2012 to Florida’s Office of Insurance Regulation. The Bill requires that insurance companies either: (1) include a 10% reduction in the rate charged consumers for PIP coverage; or (2) explain why there was not a 10% reduction of that rate in their application for rate approval.
The Office of Insurance Regulation then either approves or denies the proposed rate changes (whether the insurance companies seek an increase or propose a decrease).
Many insurance companies waited until the last minute to make their required filings, but an early report issued by the Office of Insurance Regulation on October 1, 2012 shows that of the first 8 companies’ applications, only 3 were approved with rate reductions of at least 10%.
The remaining companies received approval for rate increases of varying percentages, which range from 3.9% to 26.3%.
Interestingly, the insurance companies submitted the rate changes they would have requested by this October 1, 2012 deadline had House Bill 119 not been signed into law. Of the 8 applications approved so far, the “non-House Bill 119” requests ranged from a proposed decrease of 4.7% to a proposed increase of a whopping 60.9%. The company that stated that it would have requested a 60.9% increase had House Bill 119 not passed was approved for an increase of 26.3%.
What message is the public supposed to take from these early approvals? It sounds like the message is: “Well, it could be worse.” Or maybe it is: “The insurance companies will still seek and receive an increase, but it won’t be as bad as it could have been.”
Florida Insurance Commissioner Kevin McCarty said in a statement: “Today marks the culmination of a long chain of events aimed at fighting PIP fraud.” McCarty went on to say: “Although it initially appears the savings will result in a mitigation of rate increases rather than actual rate reductions for most companies – it does represent a major shift in the trajectory of PIP insurance rates in Florida.”
As more and more insurance companies’ proposal are either approved or rejected, the filings and the action on those filings will be very telling in comparison to what was promised when the bill was enacted. This is why it is very important for consumers, for all of us who have to pay for insurance, to pay very close attention to what happens after laws are passed and enacted.
Certainly, what will be most interesting is what occurs from this point forward with respect to those filings that have yet to be approved.
When it comes to insurance, the first thing that often comes to mind is “risk”. Insurance, after all, is protecting against risk, whether the “risk” involves auto, property, professional, life, or disability. When some unfortunate event happens, like someone gets injured on your property, or some hurricane or tropical storm comes across your area and causes damage to your home, or you get into an auto accident with an uninsured or underinsured driver, what is the first thing that comes to mind? Do you have enough insurance? Will the insurance cover this? When is the last time I saw my homeowners’ policy? Do I have the insurance I think I have?
But what happens if after an auto accident or after someone gets injured on your property – the insurance company denies your claim? You have paid insurance premiums regularly and expect the insurance company to pay because this is what you have insurance for, right?
This is why it is important to know what types and what amounts of insurance you carry. Many of our clients know what it feels like to receive a letter from an insurance company that says that they have evaluated the claim and are denying the claim. The letter in essence says: “You’re on your own.” Unfortunately, many insurance companies decide to put their profits over your rights under the insurance policy. Many insurance companies count on you giving up after you receive the rejection letter. Well, all too often it is the insurance company that is wrong.
In one instance, a gentleman bought and paid for insurance to cover damages if his vehicle was ever stolen. This was a part of his auto insurance policy. Well, one day, it happened. His vehicle was stolen from his driveway only to be recovered about five days later on the side of the road with a blown engine. The insurance company claimed that the damage was caused by a pre-existing radiator leak that was found to exist. But, the vehicle’s owner argued that as long as the radiator was kept filled, the engine worked just fine. The insurance company denied paying for the engine repairs, but paid for the cosmetic damages that were done by the thief in breaking into the vehicle. The money received by the gentleman was extremely deficient to pay for all of the repairs.
The fact of the matter was that the thief caused damage to the engine and caused it to blow because he or she drove the vehicle without any coolant after it had all leaked out. The bottom line is that had the vehicle not been stolen, the engine would not have been blown. The gentleman filed a lawsuit against the insurance company and ultimately, the insurance company paid the full amount of the repairs, plus interest and attorneys’ fees.
Unfortunately, in some instances, the insured person has to file a lawsuit against the insurance company to get the benefits to which they are entitled. Florida law has many laws that pertain to insurance companies and the claims handling process. If an insured is forced to sue the insurance company, and shows that there is in fact insurance coverage for the claim that was initially denied by the insurance company, the insured is entitled not only to the amount they are entitled and interest on that amount, but also attorneys’ fees. This assists us in taking cases against insurance companies on what is referred to as a “contingency” basis. That is, we will not get paid unless we recover for the client. If we do get the insurance company to pay, they will pay our fees also.
The law provides this remedy because the insurance company’s denial of the claim was flat wrong. Situations involving insurance claim denial can arise in many different contexts, and under many different contracts of insurance. We can handle claims that have been denied under property insurance policies, auto policies, liability policies, and many others. The law puts very powerful tools in the hands of insureds that can be used to enforce insureds’ rights. We can help you use those tools to their full potential and help you correct the wrongful denial of your insurance claim. Feel free to contact us regarding your insurance claim dispute, and we can arrange a time for a free consultation.
In the waning days of the 2012 Legislative session, Florida lawmakers narrowly passed significant revisions to the Florida Personal Injury Protection (PIP) statutes. The clear intention of the revisions was to discourage the use of PIP insurance benefits to the detriment of the consumer and the benefit of the insurance companies.
Insurance companies and business advocates insisted that the PIP law was being abused by certain people who in some cases staged car accidents. The people in the car accident then sought medical treatment from medical providers who ran up large medical bills for which PIP was responsible. Insurance companies used these examples of fraudulent claims to justify sweeping changes to the PIP laws that now result in damage to the vast majority of Florida’s citizen motorists who are legitimately injured in a car accident. This demonstrates the typical Legislative overreaction to a small but publicized problem which now results in law abiding citizens potentially losing valuable medical services and a method of paying for those services.
The changes to the PIP law take effect on January 1st, 2013. Injured people who want to take advantage of the PIP benefits for which they have been paying premiums, now must seek approved medical treatment within the first fourteen (14) days of an accident or be forever barred from using PIP insurance for valid, accident related medical treatment. What happens to that person whose schedule will not permit medical treatment from an “approved” medical provider within the fourteen (14) treatment window? What about that person whose doctor cannot see them within the fourteen (14) day window?
“Approved” medical treatment providers include emergency services as determined by a licensed medical physician, osteopath, dentist, physician’s assistant or registered nurse practitioner. Chiropractic services are limited to no more than $2500.00 and then only if chiropractic services have been recommended by an “approved” medical treatment provider. No longer are massage therapists and acupuncturists “approved” treatment providers. Thus, those individuals who seek a more holistic approach to wellness are likely excluded from many treatment options. If those individuals have health insurance, such insurance may still be available to cover holistic treatment options. Those without health insurance will be forced to pay out of pocket for these services or go without treatment.
Finally, only “Emergency Medical Conditions” qualify for payments above $2500.00. Such a condition is defined as (a) serious jeopardy to patient’s health; (b) serious dysfunction of an organ or body part; and, (c) serious impairment to a bodily function. Obviously, these terms will generate much litigation as to exactly what types of treatment will qualify.
At the end of the day, the insurance companies are supposed to roll back their rates on that portion of the automobile insurance premium that represents PIP coverage. The roll back is up to 25% of PIP’s portion of the insurance dollar; however, the insurance companies can avoid even this modest reduction in premium if they can provide a “detailed explanation” of why the rates were not reduced. Wonder how difficult it will be for an insurance company to avoid reducing rates in this insurance friendly Legislature?
Hopefully, the Florida consumer will pay attention to the continuous erosion of individual rights in favor of insurance companies which seem intent on accepting premium dollars in exchange for smaller and more narrow coverages for the insurance consumer.
A study released by the American Medical Association in May, 2012 recently disclosed the results of a comprehensive analysis of medical malpractice claims brought between the years 2002-2005. The study included all claims wherein a physician’s or other medical provider’s insurance company had expended at least some defense costs and excluded those claims that were dropped without any defense costs being incurred.
Of all claims analyzed, just over 55% resulted in litigation being filed. The percentage of claims resulting in litigation varied among medical specialties with just over 46% of claims raised against anesthesiologists going into litigation and slightly more that 62.5% of claims raised against obstetricians and gynecologists being litigated.
A not insignificant percentage of claims that were litigated resulted in a dismissal of the claims by the Court without a settlement or trial. Although the study did not analyze the reason for these dismissals, it is likely that either the claim should not have been pursued in the first place or, conversely, that additional facts were discovered after suit was filed which revealed that no malpractice had actually occurred.
Of those cases that remained in litigation, almost exactly one third (33.3%) were resolved before a verdict was reached indicating some sort of settlement or other accommodation was made between the litigating parties. Cases that actually went to trial were less than 10%.
Interestingly, of those cases that did go to a verdict, physicians/medical providers won just under 4 out of every 5.
In our experience, careful analysis of each medical claimant’s particular facts is required before undertaking a medical negligence claim. In the referenced study, more than half of the claims actually litigated resulted in a dismissal by the Court indicating that these claims were ultimately determined by the attorney or the Court to lack merit. However, of the claims that remained in litigation, one third resulted in some form of settlement. It is thus vitally important that the merits of each claim be carefully studied before undertaking litigation against a medical provider. However, just as clearly, those cases that do have merit are likely to settle before trial if the attorney bringing the claim has investigated the merits of the claim before bringing suit.
After all, while not every adverse outcome in a medical setting is the result of negligence, in those cases where a medical provider has caused injury through negligence, the client is entitled to full and complete compensation for all losses suffered. Careful analysis of the facts of the case and a close working relationship with the client significantly improves the likelihood of a successful outcome through settlement of the claim before trial.
 Arch Intern Med. 2012; ():1-2. Doi:10.1001/archinternmed.2012.1416; Anupam B. Jena, MD, PhD; Amitabh Chandra, PhD; Darius Lakdawalla, PhD; Seth Seabury, PhD; authors
Any party involved in a Dissolution of Marriage case knows the heartache, frustration and expense involved in dividing assets, establishing spousal support where needed and dealing with the scores of issues involved in establishing a workable and beneficial parenting plan for minor children.
Under Florida law, each party to a divorce is required to provide the opposing party with certain financial information quite early in the litigation process. Items such as recent paycheck stubs, tax returns, financial affidavits, loan applications, deeds to property, checking account statements and brokerage account statements are many times required to be exchanged between the parties. The clear purpose behind such disclosures is to provide the opposing party (and his or her attorney) with sufficient information to begin to make preliminary and informed decisions about the amount of resources available in order to properly divide the assets and income of the family once the final divorce decree is entered.
It is not enough, however, merely to exchange this information. The information provided by the opposing party must be analyzed carefully: is it a full disclosure of all assets and sources of income? Is the opposing party trying to hide income? Are there assets that are not being disclosed? If so, then further investigation is required. This may include depositions of parties or gathering of financial information directly from third parties such as employers or stock brokers. Such information can be gathered from these third parties through the use of subpoenas which compel production of pertinent information.
Yet even when all pertinent information is gathered and analyzed, it is many times not enough to merely appear at the mediation with all this information in hand. A prudent party in a divorce proceeding will want to be able to present this information to the mediator (and the opposing party) in a coherent and understandable format so as to demonstrate the exact nature of assets and income available in each case.
You must remember that most mediators will appear at the mediation with little or no first hand knowledge of the facts of the case. It is the attorney’s job in a divorce to have immediately available for the mediator spreadsheets of income and assets so that the mediator has the necessary ammunition to go to the opposing party properly armed and able to dispel the misinformation that the other side will sometimes try and present to the mediator.
Gathering up the important financial material is critical to a successful mediation. Just as critical, however, is taking the time before mediation to synthesize the financial information in easy to follow spreadsheets so that the time spent in mediation is not wasted and so that the mediation process results in the best settlement possible. Too many mediations appear to waste time as opposing counsel spends valuable time studying the file while at mediation as opposed to already being fully familiar with each and every facet of the file the moment mediation begins.
Properly done, somewhere between 70%-80% of mediations will result in a settlement of the case—either at mediation itself or within a reasonable time thereafter. You must remember, however, that litigation of any case—be it a divorce or a business dispute—is a form of battle. As in any battle, the more clearly your opponent understands that you are fully prepared to go to war, the more likely it is that the war will not be fought and a favorable settlement will result.
Fortunately, the United States is one of the most medically advanced countries on earth. However, despite advanced medical technology and technique, doctors sometimes commit medical malpractice. As in just about any profession, doctors may practice in one or more of a number of specialty areas of medicine. The law holds doctors to a standard within their chosen area or areas of practice; specifically, a “standard of care”. In order to bring a medical malpractice suit against a doctor in the State of Florida, a claimant must show (among other things) that there are reasonable grounds to believe that a specific doctor fell below the “standard of care”. Of course, the law also requires that the claimant suffer some type of damage as a result of the medical negligence.
Florida medical malpractice laws are very stringent and require the claimant to satisfy a number of conditions before bringing a medical malpractice suit against a doctor, clinic, or hospital. The time period within which to do is significantly shorter than bringing a simple negligence suit. Within two (2) years of the date of the malpractice, or of the date that the claimant knew or should have known of the malpractice, a medical malpractice claimant must complete a “pre-suit” investigation and place the doctor, clinic, or hospital on notice that the claimant intends to file suit. This two (2) year period of time can usually be extended for an additional 90 days by filing a Petition for Automatic Extension, but even the request for an extension of 90 days must be filed within the two (2) year period.
Therefore, it is vitally important to sit down with a lawyer very soon after you suspect that you may be the victim of medical malpractice. It is also important to remember dates, events, and other things that may help the lawyer in evaluating your claim. It would be helpful to establish a timeline of events in advance of meeting with a lawyer so that the lawyer can best understand the time constraints that surround your potential case. The initial meeting with a lawyer can be, understandably, a very emotional time and it is important to relay as many facts as possible to the lawyer who will be investigating the case.
In many cases, the lawyer may be able to inform the potential client at this initial meeting as to whether in the lawyer’s opinion the doctor’s action or inaction constitutes a deviation from the “standard of care”. However, in most cases, more investigation and a review of the medical chart by a medical professional is necessary. If the client and lawyer decide to proceed in advancing the claim through the required pre-suit process, and potentially, through a legal suit, a medical review and critical opinion by an independent expert physician will be necessary.
It is important to see a lawyer as soon as possible if you feel that you have been the victim of medical malpractice, as the timeframe for establishing your legal claim is very short. At Saunders Law Group, we handle medical malpractice cases and are happy to sit and discuss the details of your particular situation to see if indeed you have an actionable claim.