South Florida Personal Injury Lawyers Blog

Fee-Related Disputes Under Florida’s Workers’ Compensation Statute

Published on: February 22, 2022 | by Friedman Rodman Frank & Estrada, P.A.

Recently, an appeals court issued a decision in a Florida workers’ compensation case where the Employer appealed the Judge of Compensation Claims (JCC) order. In this case, the E/C granted the employee/claimant’s request for a one-time physician change. The E/C agreed and scheduled the Claimant with a new physician. The new doctor and E/C completed a new form fee agreement that exceeded the base amount under the workers’ compensation fee schedule. The Claimant argued that the higher-than-schedule fee transformed the physician into an independent medical examiner (IME) instead of a treating physician. As such, the JCC terminated the E/C physician and allowed the Claimant to receive a one-time physician change. The E/C claimed that it was an error to strike the physician based on a fee agreement.

Florida’s workers’ compensation code does not provide JCCs with authority to disqualify a treating doctor because a claimant was dissatisfied with the fee reimbursement agreement between the physician and E/C. Under Florida law, a JCCs role does not extend to resolving disputes about fee arrangements between treating doctors and E/Cs. Further, the workers’ compensation code permits higher-than-fee schedule agreements. Finally, the law does not provide claimants with a recourse for litigating complaints regarding reimbursements before a JCC.

In this case, the court reasoned that the JCC’s authority does not extend to striking a provider’s authorization in light of the law. Moreover, the court recognized that the form used by the E/C and doctor did not include the statutory language that the law requires. However, the E/C and physician amended their agreement before the Claimant‘s rescheduled appointment. Finally, the court found that the workers’ compensation code does not allow claimants to disqualify their E/C-authorized doctor before a JCC. As such, the court reversed the JCC’s final compensation order.

The Rights of a Good Samaritan Injured in a Florida Car Accident

Published on: February 15, 2022 | by Friedman Rodman Frank & Estrada, P.A.

Florida Statutes section 768.13 governs Florida’s “Good Samaritan Act,” which provides protection from liability to those acting in good faith while rendering emergency care in an emergency situation. The Good Samaritan Act stems from a public policy view that encourages bystanders to aid in emergencies without the fear of liability. However, the law only applies to those acting in good faith and exercising due care.

While Florida law does not require individuals to help victims, those that undertake that duty must do so with the care of a reasonable person. The law imposes liability in certain circumstances, such as when: the actor’s failure to exercise due care exacerbates the risk of harm to another person, or the other person suffered an injury due to their reasonable reliance on the actor. It is important to note that the Act does not apply in cases where a victim objects to assistance or compensates the volunteer for their help. Moreover, there are exceptions to the general standard in cases involving a health care provider or law enforcement.

Good Samaritans play a significant role in many Florida accidents; however, these volunteers assume a level of risk in undertaking assistance. For instance, a Florida Good Samaritan recently suffered fatal injuries on 1-75. According to reports, a 19-year-old Toyota driver who failed to stay in the center lane set off a series of deadly events. The 19-year-old overturned after slamming into the back of a semi-truck. The semi-truck pulled over to the shoulder, and another sedan slowed down to pull over when a fourth car rear-ended that vehicle. The 28-year old Good Samaritan pulled over to assist the drivers when a series of events ended with a car slamming into the volunteer, killing him upon impact.

What Is the Discretionary Planning Function Under Florida Personal Injury Law?

Published on: February 15, 2022 | by Friedman Rodman Frank & Estrada, P.A.

Florida Statutes Section 768.28 partially waives a governmental entity’s sovereign immunity protections. However, the waiver only applies in cases stemming from a governmental entity’s operational functions and not discretionary planning-level functions. Recently, an appeals court issued a decision addressing a negligence claim involving the government’s discretionary actions.

A plaintiff filed an amended complaint against a Florida town about injuries their minor child suffered while riding their bicycle. The child was riding a bike on a path along a street when they approached a dumpster blocking the path. The child left the bike path and entered the street to avoid the obstruction. A driver struck the child while he was traveling down the street. In response to the plaintiff’s claim, the county moved to dismiss the case based on sovereign immunity.

On appeal, the court reasoned that the law entitles the defendant to sovereign immunity because the plaintiff’s complaint alleged that the county was negligent in its discretionary planning-level functions. Florida law provides that sovereign immunity protects governmental entities for their discretionary functions. Discretionary functions include quasi-legislative decisions, policy-making, and judgmental governmental functions. On the other hand, sovereign immunity does not apply to operational functions such as decisions that implement policy. As such, plaintiffs wishing to overcome sovereign immunity must allege negligent acts “at an operational level.”

Florida Car Accidents Involving Swerving and Failing to Maintain Lanes

Published on: February 8, 2022 | by Friedman Rodman Frank & Estrada, P.A.

According to the World Health Organization, motor vehicle collisions cause more than 1.2 million fatal injuries worldwide and even more non-fatal injuries. Various factors contribute to or exacerbate the severity of a Florida accident. While the causes of Florida accidents are complex, most originate from negligence. Amongst younger motorists, inexperience, lack of tactical skills, and risky conduct seem to be leading factors in accidents. Accidents involving older adults tend to stem from visual, auditory, cognitive and mobility impairments. However, many accidents involve a combination of these factors and other contributing circumstances.

When motorists exhibit the conduct described above, they are more likely to miss obstacles, drift lanes, and cause serious accidents. For example, a recent news article described a fatal Florida multi-car accident. The Highway Patrol report indicates that a pickup truck failed to maintain its lane, crossed into the center, and side-swiped a sedan. The truck driver continued in the wrong direction and slammed head-on with a second vehicle. The pickup truck driver and three passengers in the second sedan died from their injuries. The individual driving the first sedan was able to bring their vehicle to a controlled stop without swerving.

The tragic accident above illustrates how even minor moves can set off a path of destruction and fatalities. Failing to maintain a lane and swerving to avoid accidents are common occurrences, but they can lead to multi-vehicle accidents. There is very little a driver can allege to defend their failure to maintain lanes. However, swerving can be an instinctual reaction to avoid an oncoming vehicle; but safety experts urge drivers to understand alternatives to swerving and how to do so safely.

Pre-Suit Requirements for Florida Medical Malpractice Lawsuits

Published on: February 8, 2022 | by Friedman Rodman Frank & Estrada, P.A.

The Third District Court of Appeal in Florida recently issued an opinion in a defendant’s motion to dismiss a complaint. The plaintiff in the matter filed a lawsuit for injuries he suffered when a surgical table collapsed underneath him while he was preparing to undergo eye surgery. The victim argued that the facility breached a duty of care by warning him about the table. In addition, he contended that the facility failed to maintain and use the table properly. The defendants moved to dismiss the complaint contending that the complaint did not meet Florida’s medical malpractice statute. The trial court found that the plaintiff adequately filed the complaint under the state’s ordinary negligence statute.

Under Chapter 766, the pre-suit requirements apply to claims arising out of the medical care or services in Florida. However, Fla. Stat. 766.106(1)(a) further explains that “merely because a wrongful act occurs in a medical setting” does not automatically mean that it falls under the state’s medical malpractice statute. Instead, the wrongful act or omission must directly relate to professional judgment or skills or the improper application of medical services. Under Florida law, there is a two-step inquiry to determine whether a claim stems from medical malpractice first, whether the wrongful act arose out of medical diagnosis, treatment or care, and second whether a healthcare provider rendered the treatment.

In this case, the plaintiff alleges ordinary negligence; however, the court must decide whether the complaint sounds in ordinary negligence or medical negligence. Here, the plaintiff’s allegations relate to the collapsing table and not to anything related to medical judgment or skills. The appeals court found that the mere fact that the table was used for a medical procedure does not amount to a medical malpractice claim. In support of their position, the Court cited similar cases which involved medical settings. For example, a Florida court held that a case involving a nursing caretaker’s restraining hold on an unruly patient did not require medical skill and thus did not fall under medical malpractice. Further, a previous decision explained that a medical provider’s decision to leave a critical care patient unsupervised, causing him to fall out of a bed, did not fall under medical malpractice. As such, the court denied the defendant’s petition to dismiss and affirmed the case in favor of the plaintiff.

Florida Auto Accidents with Police Vehicles

Published on: January 31, 2022 | by Friedman Rodman Frank & Estrada, P.A.

Generally, Florida personal injury lawsuits follow a clear pattern; however, cases involving governmental entities present additional challenges and burdens. Pursuing lawsuits and collecting damages after an accident with a governmental entity or vehicle requires a comprehensive understanding of complex negligence laws. Unlike other states, but for three primary exceptions, Florida permits individuals to pursue negligence actions against governmental entities.

A government employee may be held liable for damages or injuries under certain circumstances in Florida. These situations typically involve cases where the injury stems from a negligent act, omission, or wrongful act of the government employee, there are compensable damages, and the law would hold the responsible party negligent even if they were not a government worker.

Those who have suffered injuries in an accident with a Florida government vehicle should seek legal representation as soon as possible. While the law permits accident lawsuits against Florida police officers, these cases are very fact-specific. For instance, a recent Florida appeals court issued an opinion involving a lawsuit against a police vehicle. In that case, an off-duty police officer rear-ended another vehicle. The vehicle owners filed a complaint against the City of Miami (City) for their damages and losses. However, the City argued that they were entitled to sovereign immunity because the office was off-duty at the time of the incident. The trial court found in favor of the City.

Fatal Florida Accidents Involving T-Bone Collisions

Published on: January 31, 2022 | by Friedman Rodman Frank & Estrada, P.A.

T-Bone or side collisions refer to situations where the front of one vehicle collides into the side of another vehicle. Florida broadside accidents tend to happen at intersections, parking lots, or in situations where one driver fails to stop at a red light or stop sign. These accidents are more likely to result in tin severe injuries or fatalities. Scientific literature from the Association for the Advancement of Automotive Medicine categorized the severity of injuries from these types of accidents.

An analysis of the crash data indicated that about 49% of victims suffered injuries to the chest/abdomen, 24% experienced pelvic/lower extremity injuries, and 4% to their neck/spine. In addition, the largest source of injuries involved arterial damage followed by brain and heart injuries. Generally, four factors influence the severity of injuries in a Florida t-bone accident. These factors include; accident type, occupant exposure, impact area, and crash direction; interestingly, seat belt use was not a primary factor. However, the literature suggests that seat-belt use was critical in reducing ejection and rebound injuries.

Almost all data suggests that the most dangerous type of t-bone accident involves vehicle-to-vehicle collisions. For instance, news reports recently described a tragic accident involving a family vacationing in Florida over New Year. A driver t-boned the family’s vehicle as they pulled into a fast-food restaurant. According to witnesses and a police report, the family’s car rotated across the roadway, onto a sidewalk, and slammed into a light pole. Emergency responders transported the family to a local hospital; however, the mother and son succumbed to their injuries. The case is still under investigation, and it is unclear whether the driver will face charges.

Florida Lane-Change Accidents Involving Large Trucks

Published on: January 25, 2022 | by Friedman Rodman Frank & Estrada, P.A.

Florida lane change accidents refer to instances when a driver leaves their travel lane without a clear path to enter another lane. According to research by the International Association of Traffic and Safety Sciences and AAA Foundation, many factors contribute to lane change accidents. The most severe lane change accidents typically involve large trucks with a vehicle weight rating exceeding 10,000 pounds. A recent study indicated that large trucks drove approximately 280 billion miles on U.S roads in the last reporting year and were involved in over 400,000 collisions. These crashes resulted in 116,000 injuries and over 4,000 fatalities. Individuals who have suffered injuries in a Florida accident should contact an attorney to discuss their rights and remedies.

Studies investigated how contributing factors affect the likelihood of a lane-change accident. Driver errors such as speeding, tailgating, impairment, and mobile device usage account for over 90% of traffic accidents. Until recently, researchers have not given the same amount of attention to studying how unsafe lane changes impact the likelihood of an accident. Lane-change crashes represent about 4% of all collisions, and they tend to occur during the daytime on roads with a wide range of speed limits. Some studies have shown that the frequency of looking towards mirrors varies between young and older drivers. Younger drivers tend to rotate their heads wider when observing their blind spots. Further, older drivers tend to inspect their rear-view mirrors less frequently. In addition, the vehicle making the lane change also impacts the severity of an accident.

Naturally, a vehicle’s size will impact the severity of an accident. In response to the growing concern surrounding Florida truck lane change accidents, safety advocates urge trucking companies to install lane departure warning systems. Large trucks cause many accidents every year, and these video-based systems may prevent nearly 300 deaths every year.

Fatal Florida Accidents Involving T-Bone Collisions

Published on: January 25, 2022 | by Friedman Rodman Frank & Estrada, P.A.

T-Bone or broadside collisions refer to situations where the front of one vehicle collides into the side of another vehicle. Florida broadside accidents tend to happen at intersections, parking lots, or in situations where one driver fails to stop at a red light or stop sign. These accidents are more likely to result in tin severe injuries or fatalities. Scientific literature from the Association for the Advancement of Automotive Medicine categorized the severity of injuries from these types of accidents.

An analysis of the crash data indicated that about 49% of victims suffered injuries to the chest/abdomen, 24% experienced pelvic/lower extremity injuries, and 4% to their neck/spine. In addition, the largest source of injuries involved arterial damage followed by brain and heart injuries. Generally, four factors influence the severity of injuries in a Florida t-bone accident. These factors include; accident type, occupant exposure, impact area, and crash direction; interestingly, seat belt use was not a primary factor. However, the literature suggests that seat-belt use was critical in reducing ejection and rebound injuries.

Almost all data suggests that the most dangerous type of T-bone accident involves vehicle-to-vehicle collisions. For instance, news reports recently described a tragic accident involving a family vacationing in Florida over New Year. A driver t-boned the family’s vehicle as they pulled into a fast-food restaurant. According to witnesses and a police report, the family’s car rotated across the roadway, onto a sidewalk, and slammed into a light pole. Emergency responders transported the family to a local hospital; however, the mother and son succumbed to their injuries. The case is still under investigation, and it is unclear whether the driver will face charges.

Recent Lithium-ion Battery Fire Could Affect Florida Residents

Published on: January 18, 2022 | by Friedman Rodman Frank & Estrada, P.A.

With mild, warm weather year-round, Florida residents are no stranger to commuting by electric bike or scooter to enjoy the sunshine without compromising mobility and efficiency. Many of these electric bikes or scooters, however, are operated by complex technology and lithium-ion batteries, which can come with risks of the bike or its parts being defective and potentially dangerous. When a piece of machinery like an electric scooter or bike causes injury because it has defective components by design or manufacturing error, those who are responsible must be held accountable for any resulting damage or injury.

According to a recent news report, a lithium-ion battery from an electric bike or scooter self-combusted in an apartment building, which caused a four-alarm fire. Local authorities responded to the fire in the middle of the night, where it was only extinguished three hours later with one firefighter sustaining minor injuries in the process. After an initial investigation, fire marshals determined that the fire was caused by a battery that burst into flames in a restaurant on the ground floor of the building. The fire then spread vertically through the building, reaching as far up as to damage apartments located on the top floor. The fire remains under investigation.

Although it is unclear what the make and model of the electric bike or scooter was, there has been a steady increase in fires caused by electric bikes recently. In New York, more than 100 fires were caused by these devices, which resulted in 79 injuries and four deaths in 2021 alone.