Do not be duped by this report, even if it gets circulated in various media reports. Here’s the truth of the matter: The ATRA is part of a well-funded public relations campaign (one that has been discredited numerous times by media outlets as well as state and national legal experts and academics).

It’s an organization that receives millions of dollars from deep-pocketed CEOs and others with business interests who want to make it harder for you collect damages if you’re seriously hurt. It’s prepared by a business-oriented group that takes a clear stance against personal injury lawsuits and sizable class action awards. The American Association for Justice refers to the report as “slick propaganda.” It plays on the erroneous theory that people and attorneys are getting rich off bunk personal injury claims.more

Here’s the reality: It’s not easy to win a Florida personal injury lawsuit. Depending on the type of claim, there are numerous legal hurdles one has to clear just to make it to the trial phase. Settlement negotiations can be successful, but only if you’ve got a case that is reasonably more likely to prevail in trial than not. It also requires that you have a good personal injury attorney who is highly familiar with the law, case law precedent and effective legal strategies. High compensation verdicts and settlements are only awarded when there is solid evidence that plaintiff’s losses have been substantial – usually when there is serious and permanent injury or wrongful death.

The ATRA report bases its designation for Florida on a few recent decisions. One was a Florida Supreme Court ruling in Charles v. Southern Baptist Hospital of Florida wherein justices ruled a 2004 amendment to the Florida Constitution allowing patient access to adverse incident reports involving doctors they are suing for medical malpractice supersedes a federal law indicating these records should be confidential. The group claims this will discourage doctors from sharing information with the medical community about ways to limit future mistakes. But you know what else limits future mistakes? Accountability in the courts, most notably to those who have been directly harmed.

Other Florida high court decisions cited in the ATRA’s evaluation involved invalidation of arbitration agreements – particularly those involving nursing home patients. Of course, we know arbitration agreements are often mandatory when individuals are admitted to nursing homes, and they strip claimants of the ability to handle disputes (so often involving neglect, abuse and negligent care resulting in serious injury or wrongful death) in a court of law. Instead, they must go before an arbitrator and these outcomes are largely less favorable to defendant nursing homes. Plus, they are confidential, meaning future patients don’t have the benefit of learning which providers are lagging in quality of care. Further, the court did not wholly invalidate arbitration agreements, only those that are signed by a family member of the elderly, vulnerable victim.

The report also criticized the court’s refusal to enact the more stringent Daubert standard for expert witness testimony, instead opting to continue with the Frye standard. The latter is a general acceptance test to determine admissibility of scientific evidence that asks whether the scientific technique used is generally accepted as reliable in a relevant scientific community. Enacting the more stringent Daubert standard would make it harder for personal injury claimants to clear the initial hurdle, while keeping Frye doesn’t necessarily make these cases easier to win in the long run because they still have to clear all relevant proof burdens for any given claim.

The bottom line is the basis of this report’s conclusions are, at best, incomplete. The reality is it was specifically drafted with the goal of swaying opinions to limit injury plaintiff access to courts and compensation for damages. Our injury attorneys in Fort Lauderdale are committed to continuing to fight for the best interests of our clients.

Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

The Worst Courts for Businesses? It’s a Matter of Opinion, Dec. 24, 2007, By Adam Liptak, The New York Times

More Blog Entries:

Federal Audit Finds Nursing Home Abuse Often Unreported to Police, Oct. 27, 2017, Fort Lauderdale Personal Injury Attorney Blog

Just take Florida, for example. F.S. 316.305 went into effect in 2013 (and was one of the last texting-and-driving bans in the country to be enacted). The statute prohibits a person from operating a motor vehicle while manually typing or entering multiple letters, numbers, symbols or other characters into a phone or wireless communication device. So far so good, right? But there are a few issues. First off, it’s a secondary offense, which means police can’t initiate a traffic stop on this basis alone; they can only issue a citation if they stop a driver for another offense. Even if they do ticket the driver, it’s only a $35 citation for a first-time offender. Not much of a deterrent. Beyond that, the law doesn’t ban talking (which studies have shown can be just as distracting) or dialing a number (and it can be tough for an officer to discern the difference between that and texting from outside the vehicle, especially if it’s moving). Also, it doesn’t address the expanding technology, which includes video chats.

Now, there are two bills on the table to enhance penalties for those who violate Florida’s current ban on texting and driving. HB 47 would increase the fine (doubling it for offenses in school zones or designated crossings) and also make the violation a primary offense, as opposed to a secondary offense. Meanwhile, HB 69 targets drivers 18 or younger, and would make the offense primary only for these motorists.

Meanwhile, other states are taking even more drastic measures. In California, for instances, the New York Times reports a new law has been enacted that bans drivers from even holding mobile devices. The law law went into effect January 1st and it builds on an earlier state law that prohibits drivers from talking and texting, but didn’t stop them from streaming video or using apps like Twitter, Facebook and Snapchat.

You may recall late last year, a Texas couple filed a federal lawsuit against Apple following a 2014 car accident that killed their 5-year-old daughter. Investigators reported the at-fault driver had been using Apple’s FaceTime app and wasn’t paying attention to the stopped traffic ahead. Plaintiffs allege the technology firm has the ability – and even a patent on the technology – to prohibit use of the app by drivers in moving vehicles, but had not implemented it.

A spokeswoman for travel organization AAA told the Times she anticipates many other states will be introducing additional bills to curb distracted driving accidents. The National Safety Council reports that 1 in every 4 Florida car accidents involves at least one driver who is distracted. The risk of distraction for teens is even greater: Research has shown 60 percent of all crashes or near-crashes involving teen drivers involve smartphone-related distraction.

Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Can a Law Stop Distracted Driving? California Hopes to Find Out, Jan. 5, 2017, By Jonah Engel Bromwich, The New York Times

More Blog Entries: Modisette v. Apple Inc. – Distracted Driving Blamed on Crash That Killed 5-Year-Old, Jan. 10, 2016, Fort Lauderdale Car Accident Lawyer Blog

The case is Silkworth v. Boca Raton Regional Hospital. The South Florida woman alleges her injuries were caused by failure of the hospital staffers to adhere to appropriate medical guidelines in immediately immobilizing her spine in the wake of a horrific car accident. She had been a passenger in the backseat of a taxi late one night when the vehicle was T-boned by another motorist. She was rushed by ambulance to the hospital. She concedes she was in serious condition when she arrived at the hospital, but the standard of care in her case dictated that medical workers immediately immobilize her spine. But they didn’t do that, and now, she says, she is permanently paralyzed from the waist down.

Medical reports indicate plaintiff didn’t have any symptoms of paralysis until long after she got to the hospital and underwent treatment – without her spine first being immobilized.

An attorney for plaintiff alleged the hospital breached the standard of care by repeatedly moving her around without protecting her spine. This resulted in complete paraplegia, something he opines was preventable. According to Courtroom View Network, the hospital’s own internal policy instructed emergency medical staffers that if they were in doubt about whether immobilization was necessary, they should do so anyway as a precautionary measure. Doctors could always from there work to rule out an unstable spinal fracture, but there is no going back if the spine isn’t protected from the moment of injury.

Plaintiff says her spinal injury has upended her life, resulting in millions of dollars in damages in medical expenses, lost wages and pain and suffering. It has affected her ability to be a good parent to her son, to work and to care for herself day-to-day.

Defendants don’t at this point deny the extent of her damages. However, they contend the spinal cord injury and paralysis were caused solely by the crash. Expert witnesses for the defense testified during depositions that the impact of the collision “obliterated” plaintiff’s spine, resulting in her permanent paralysis before she ever entered the hospital doors. They allege she was not wearing a eat belt at the time of the crash. She was reportedly intoxicated (hence, why she was taking a taxi that night) and, according to defense, was unable to give a full and proper accounting of the events or her injuries in the immediate aftermath of the car accident.

Defense attorneys added that emergency responders in depositions characterized their own post-crash reports as “unreliable,” adding that none conducted a neurological assessment of plaintiff’s lower extremities. This was a mistake, and one that muddied the record, which should have reflected that plaintiff was a paraplegic by the time those vehicles came to rest.

Although the facts of this case are unique, causation is a commonly disputed issue in medical malpractice lawsuits. That’s why it’s imperative to have an experienced attorney advocating on your behalf.

Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Hospital Negligence Paralyzed Car Crash Victim, Attorney Says as Med Mal Trial Begins, Nov. 30, 2016, By Arlin Crisco, CVN

More Blog Entries:

Davis v. Baez – Florida Negligence Claim Against School Bus Driver Gets Green Light, Dec. 2, 2016, Fort Lauderdale Spinal Injury Lawyer Blog

The ruling was not wholly unexpected. Stahl was essentially an indictment of the entire workers’ compensation system in Florida. The case stems back to 2003, when plaintiff began working as a nurse at a mid-sized hospital and he suffered a work-related back injury. This occurred just a few months after state legislators had enacted a series of changes to the state’s workers’ compensation program. Two years after his injury, his physician determined that he had reached maximum medical improvement. Unfortunately, that rating – and his injury – was essentially career-ending because, being unable to lift above a certain weight, he could no longer be a nurse. He was then awarded just 12 weeks of impairment benefit income and $5,472 – for an injury that permanently locked him out of his field. Later, the workers’ compensation board determined plaintiff didn’t meet the definition for permanent total disability and his claim for those benefits were denied.

What he argued in his case was that this award of just $5,472 was not adequate for the injury he sustained. Therefore, it could not be the exclusive remedy plaintiff had as recourse. Florida, like so many other states, recognizes an exclusive remedy provision that prohibits injured workers from suing their employer for negligence in exchange for a system of no-fault benefits. However, those benefits are supposed to fairly compensate workers for their losses. It was supposed to be part of a “grand bargain,” but as workers’ compensation protections are being steadily whittled away, it’s more of a bargain for companies and more of a raw deal for workers.

Plaintiff’s attorney said he recognized the petition to the supreme court was “a long shot” because it would have required the court to examine the entire constitutionality of the state’s workers’ compensation system, which undoubtedly would have an effect on the workers’ compensation system in the country at-large. As the court is only working with eight justices at the moment, it has been conservative about the cases it takes on.

Defendants in the case say that eliminating workers’ compensation as an entire system would have done much more harm to workers than good.

But our work injury lawyers in Fort Lauderdale know there has been some good news this year in workers’ compensation cases. In April, there was the case of Castellanos v. Next Door Company. Here, the Florida Supreme Court held that the mandatory attorney fee schedule – which in some cases worked out to plaintiff lawyers receiving just a few dollars an hour – was unconstitutional because it violated workers’ due process rights under the state and federal constitution.

Then in June, the state supreme court took on the case of Westphal v. City of St. Petersburg. In that case, the court ruled that the 104-week limitation on temporary total disability benefits is not constitutional because it resulted in workers having limited access to the courts. The court ruled the previous 260-week limit in place prior to the 1994 change in the law should be reinstated.

Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

U.S. Supreme Court Declines to Review Challenge to Florida Workers’ Comp System, Nov. 10, 2016, By Amy O’Connor, Insurance Journal

More Blog Entries:

Motorcycle Riders in Construction Zones Face Hazards, Nov. 11, 2016, Fort Lauderdale Injury Lawyer Blog

However, there are questions about how effective some of those laws truly are when when Florida has some of the highest rates of accident deaths by motor vehicles – including those involving bicyclists and pedestrians. In 2014, there were 2,494 traffic fatalities in Florida. That’s compared to New York – which has almost the exact same population – which had 1,039. California – which has double Florida’s population – had 3,074 that year. Texas, which is also about double, had 3,538.

Traffic safety experts say the issue is somewhat complicated. It starts with the fact that our roads (as were many in the South) were designed primarily for fast motor vehicle traffic. It continues with the fact that we have year-round nice weather and beautiful beaches and other tourist draws. That means we have far more people on our roads, many of them inexperienced with the area and sometimes on long commutes. There is also the issue of lacking public transportation, which is a major problem in a lot of Florida cities. But another issue is the fact that many of our traffic laws are rather lax.

Let’s start with speed limits. In New York, which despite having roughly the same population as Florida, has less than half the number of traffic fatalities, the speed limit on major busy highways is 55 mph. In Florida, the speed limits is 70 mph. The motor vehicle death rate in New York is 5.3 per 100,000 people. In Florida, it’s 12.5. When it comes to factors in fatal car accidents, the U.S. Department of Transportation reports that speeding was a factor in 28 percent of all motor vehicle accident deaths. It’s consistently ranked as a factor in one-third of all traffic accident fatalities since 2005. “Speeding” is considered not only exceeding the speed limit, but going too fast for the conditions.

Another issue: Distracted driving laws. Florida was one of the last states to outlaw texting and driving (in 2013) and it is one of the few that designates it as a secondary offense. That means cops cannot pull drivers over if they see them violating the law – unless they also see them breaking some other law. On top of that, even if a person is pulled over and cited, the ticket is for a mere $30 for a first-time offense.

FOX 4 recently reported there were 46,000 distracted driving accidents in Florida last year.

Another issue is the lax criminal penalties faced by drivers who hit and kill or injure cyclists and pedestrians. Unless the driver was drunk or tries to flee, he or she is usually only issued a traffic citation. Very rarely will they face jail time. Often the only way for victims to attain accountability is through civil litigation.

Finally, there are motorcycle helmet laws. Of course, these are controversial and state law is clear that a rider’s decision not to wear one won’t affect civil liability if another driver hits a motorcyclist. However, there is ample evidence that helmets do save lives – with riders being 67 percent less likely to suffer a brain injury and 37 percent less likely to die while wearing one.

Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Driving laws are unsafe in Florida, June 14, 2016, By David Zuhusky, The News-Press

More Blog Entries:

Florida Tractor-Trailer Accident Victim Dies One Year Later, June 14, 2016, Fort Lauderdale Car Accident Lawyer Blog

Florida ranks No. 2 in the nation for the most pedestrian accidents that year – 501, to California’s 701. When population was factored in, Florida was also No. 2 – tallying 2.56 pedestrian fatalities per 100,000 population, versus Delaware, which had 2.70 pedestrian fatalities per 100,000 people. Delaware counted a total of 25 pedestrian deaths that year. According to the Florida Pedestrian and Bicycle Strategic Safety Plan, Broward County ranked No. 2 in the state for both fatalities and injuries. Miami-Dade ranked No. 1 for both.

Pedestrian crashes are more likely to result in fatal or serious crashes than any other type of traffic accident. Most of these incidents happen mid-block without crosswalks, at intersections, areas influenced by intersections, at driveway access points, railroads, bridges and public bus stops. Parking lots too can also be dangerous areas.

In most cases of vehicle vs. pedestrian, it is the motor vehicle driver who is to blame. The driver doesn’t see the pedestrian or isn’t paying proper attention. Many victims may be entitled to compensation via a number of different avenues, but it will depend on the circumstances. Pedestrian accident victims and their loved ones must seek experienced legal council because despite the statistics, there is still much that has to be proven in order to secure damages against a driver. This is especially true where a pedestrian may have shared some responsibility for what happened.

To be clear: Sharing part of the blame does not mean a pedestrian can’t collect damages. It does mean overall damages are likely to be reduced. The exception will be if a court determines the pedestrian was solely the one at fault.

That’s what was alleged in the recent Florida Second District Court of Appeals case of Panzera v. O’Neal and Publix, where a pedestrian entered and attempted to cross a multi-lane interstate on foot one morning shortly before 3 a.m. According to court records, Anthony Panzera, 25, walked to the interstate, climbed a fence and entered the interstate, where he was struck by a semi tractor-trailer driven by a Public employee. Pedestrian was wearing a dark shirt and there were no street lights in the area where this occurred The truck speed was capped at 65 mph – 5 mph below the speed limit. Truck data recorders indicated the 45-year-old driver did attempt to stop suddenly, but was unable to avoid a collision.

No criminal charges were filed in the case, as a Florida Highway Patrol trooper concluded Panzera caused the crash and there was nothing the trucker could have done differently to avoid it. Panzera’s parents filed a wrongful death lawsuit against the driver and his employer. The problem was they submitted no evidence to refute the expert witness testimony and conclusions from the FHP. Trial court granted summary judgment, and parents appealed. The 2nd DCA affirmed.

The court cited case law in noting that in a negligence lawsuit, summary judgment would be improper unless defendant can establish unequivocally the absence of negligence OR that plaintiff’s negligence was the sole proximate cause of injury. That is, plaintiff’s can collect damages on even 1 percent of defendant’s fault.

Here, the appellate court noted plaintiffs had raised only speculative, rather than genuine, issues of material fact. The only evidence presented was testimony from the pedestrian’s parents, who insisted the truck driver could have done more to avoid the crash, and these conclusions were based only on their own personal review of the scene post-crash. Neither have any experience in accident reconstruction and they weren’t there at the time of the crash. Therefore, the court ruled these assertions aren’t admissible or reliable and summary judgment was proper.

Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Panzera v. O’Neal and Publix, Dec. 2, 2015, Florida’s Second District Court of Appeal

More Blog Entries:

Fatal Florida Car Accident Reported During Test Drive of a Vehicle, Dec. 6, 2015, Fort Lauderdale Pedestrian Accident Lawyer Blog

That said, plaintiffs still have a heavy proof burden in showing a causal link between a property owner’s negligent maintenance of property and alleged injuries.

This was seen in the recent case of Gemmink v. Jay Peak Inc., recently before the U.S. Court of Appeals for the Second Circuit.

According to court records, plaintiff was injured while skiing at a resort in Vermont with his daughter. The two were skiing down one trail, which intersected with another. However, when his daughter reached the end, she realized her father hadn’t followed her down. A worker for the resort would later find plaintiff in great pain, lying on his back near a tree.

Worker described plaintiff as “combative,” but indicated he could not recall the incident that caused him injury. Plaintiff’s daughter, however, took note of a jump near the trees right by the intersection. This led plaintiff to opine another patron flew off that jump and collided with him, rendering him unconscious and suffering from a concussion, fractures to several of his left ribs and his left arm.

He filed a lawsuit to recover damages, asserting the resort allowed dangerous jumps on its trails and he was injured as a consequence of that.

But there were several problems with his filing, beginning with the fact that it was done pro se, meaning without a lawyer. While negligence may seem a fairly simple thing to prove, the reality is it is not. Premises liability law in particular is filled with nuance and it can vary greatly from state-to-state and even from one property to the next. (For example, what is considered “negligent security” in one location may not necessarily be considered negligent in the next.) An experienced personal injury lawyer can help clients navigate these issues, and advise on the best legal strategies given the unique circumstances of the case.

Those who fear the cost of hiring an attorney should know many cases can be accepted on a contingency fee basis, meaning if a lawyer accepts your case, the law firm covers all costs upfront and there are no attorneys fees unless you win.

Beyond plaintiff’s failure to hire an attorney, he failed to produce sufficient evidence to indicate the cause of his injury. He needed to show more probably than not that defendant’s negligence was the cause of his injury. The fact that neither he nor anyone else saw another skier collide with him and he produced little in the way of circumstantial evidence to prove that’s what happened.

And even if he was able to do that, he failed to provide any expert witness testimony that could prove that a lack of maintenance of this nature would result in this type of accident with any sort of frequency. While expert witness testimony isn’t required in every injury case, it is generally required to support a finding of causation where the link may be obscure and a layperson with no well-founded knowledge could only speculate.

Although south Florida doesn’t have any ski resorts to boast of, there are many activities for which property owners may owe a duty of care to patrons. Success in these cases starts with consultation with a lawyer who has experience in this area of law.

Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Gemmink v. Jay Peak Inc., Nov. 30, 2015, U.S. Court of Appeals for the Second Circuit

More Blog Entries:

Roma v. Moreira – Duty of Landlord to Prevent Tenant Injuries, Nov. 24, 2015, Fort Lauderdale Premises Liability Attorney Blog