Orlando Injury Lawyer Blog

As Orlando injury lawyers fighting insurance companies for over two decades, we applaud state regulators for fining California's largest health insurance provider $1 million for violating state law, saying an investigation found that the company systematically dropped policyholders after they became sick or pregnant.

Officials with the Department of Managed Health Care said they hoped the fine would prompt changes at Blue Cross of California, and they plan similar investigations into other health insurance providers in the state, the Los Angeles Times reported Friday.

The department's findings could expose Blue Cross to legal liability in dozens of lawsuits filed by consumers who allege their policies were illegally canceled. The investigation found that Blue Cross used computer programs and a dedicated department to cancel the policies of pregnant women and the chronically ill regardless of whether they lied on their applications about pre-existing medical conditions - a standard required by state law.

The report said the legal standard for cancellations is high because such action may put the policyholders' health at risk by making it difficult to obtain care. Policy cancellations also hurt hospitals and physicians by denying them payment for treatment rendered in good faith and often with prior approval by the insurer.

In both personal injury and medical malpractice cases, we often see issues arise that requires interaction with our clients' health insurers. Certainly, when we represent clients who face the lose of health care coverage that is a very serious matter. Insurers must recognize that such action places the enrollee at financial risk for the full amount of billed medical charges and potentially rendering the enrollee uninsurable in the future.

As the state investigation discovered, insurers such as Blue Shield of California and Kaiser Permanente, routinely canceled coverage of individual policyholders whose medical care resulted in large claims, prompting some to lose their homes or suffer other hardships. Of course, we have seen this despicable conduct over the years and have come to expect it. However, for the innocent insured, they find this betrayal both surprising and gut-wrenching.

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As Orlando injury lawyers we have seen tragedies involving carbon monoxide poisoning. Recently, the carbon monoxide poisoning death of a tourist staying at an upscale Florida hotel brought this issue to the forefront. Now our Florida legislature is considering a law that would make such tragedies less likely.

Last December investigators cited a boiler room at the Doubletree Grand Key Resort as the source of deadly fumes which took the life of one of its guests. Amazingly, days before this death, three guests staying in the same room fell sick. At first, it was thought they were suffering from food poisoning, but after medical personnel determined it was carbon monoxide poisoning, they were taken to a local hospital for treatment.

Carbon monoxide is an odorless, colorless, tasteless toxic gas that kills 3,800 people annually in the United States. The devices necessary to detect this deadly gas are readily available for both homes and commercial establishments.

Legislation was filed Feb 21, 2007, in the Florida Senate that would require carbon monoxide detectors in hotel rooms across the state. SB 1840 filed by Senator Charlie Justice (D-St. Petersburg) essentially states that each unit in a public lodging establishment would be required to have a carbon monoxide detector, unless it is determined that no potential threat of poison exists. Rules regarding installation and determination of threat would be adopted by the Division of Hotels and Restaurants.

While every state should required such a low-cost fix to enhance the safety of hotel guests, Florida, with its thriving tourism business certainly should welcome such legislation. Yet, we must assume that the hotel industry may not be enthusiastic over additional regulations. We will have to wait and see how far this pro-consumer legislation will go this session.

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As Orlando medical malpractice lawyers handling significant injury and wrongful death claims in this most challenging area of injury law, we sometimes think our colleagues on the defense side have it too easy. Few Orlando medical malpractice lawyers would tell you that it is easy to sue careless doctors or hospitals in light of the insurance industry propaganda, the media coverage of the so-called medical malpractice crisis and the arbitrary limits on non-economic damages. Yet, we should remember the burdens that medical malpractice lawyers defending these doctors and hospitals must bear.

The recent verdict for a patient who suffered a stroke that was misdiagnosed as sinusitis demonstrates what can happen to lawyers defending a medical malpractice case that goes south. In that case, a former pro basketball player in the Philippines, went to a Florida community hospital emergency room complaining of nausea, headache, dizziness and double vision. He was sent home five hours later with a painkiller prescription and a diagnosis of sinusitis. No one realized the patient was having a stroke. He returned to the hospital with more severe symptoms the next morning and underwent surgery hours later to relieve brain swelling. He ended up in a coma for three months and emerged from it permanently disabled.

The story did not end with the medical malpractice lawyers for the doctors enjoying their hourly fees and simply moving on to the next case. No, the doctors who were the target of that lawsuit have sued their lawyers. The doctors allege that their attorneys turned down settlement offers within their policy limits and which represented a fraction of the final judgment. The doctors also claim that their medical malpractice lawyers did not communicate adequately and failed to appropriately protect their interests.

I find persuasive the post on the Chicago Personal Injury Law Blog, entitled How Do You Defend The Indefensible? In addressing this case that post concluded that the doctors’ liability appeared clear but the medical malpractice insurance company involved “stuck to the industry standard of delay, deny, and defend.” In my personal experience with this medical malpractice insurer, Pro National, I have encountered similar tactics. In one medical malpractice case this insurer offered no settlement offer to my client; however, our Orlando jury returned a verdict of $30,000,000.

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Posted In: Medical Malpractice

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As Orlando injury lawyers handling pharmaceutical drug cases, the recent Vioxx victory encourages plaintiff lawyers to continue the fight against giant drug maker Merck & Co. A jury in Atlantic City ruled that the painkiller Vioxx contributed to an Idaho postal worker’s heart attack and handed Merck one of its biggest losses over the drug Vioxx so far. The jurors awarded Frederick Humeston and his wife $20 million in compensatory damages Monday morning, then later said Merck should pay $27.5 million in punitive damages.

Mr. Humeston had been granted a second trial in light of new evidence and this Vioxx victory means Merck has now won nine cases and lost five in the Vioxx litigation over its arthritis pill.
Humeston, 61, of Boise, Idaho, suffered a heart attack in September 2001, several months before Merck - under pressure from federal regulators - put a stronger warning about the cardiovascular risks of Vioxx on the drug's detailed package insert. A decorated Vietnam veteran, Humeston, had taken Vioxx intermittently for knee pain from shrapnel wound.

The jurors, after deliberating for about five hours over two days, awarded Mr. Humeston $18 million and $2 million to his wife in compensatory damages. The jury also deliberated over Vioxx and Merck’s reprehensible conduct and awarded $27.5 million in punitive damages against the Vioxx maker.

Whitehouse Station, N.J.-based Merck pulled Vioxx from the market in September 2004 after its own research showed the drug doubled the risk of heart attack and stroke. Nonetheless, during the eight-week trial, Merck lawyers contended Humeston had several risk factors for heart disease, including being overweight and sedentary and having high blood pressure and cholesterol levels. Fortunately, these excuses did not work and the jury kept its focus on Vioxx and the dangers of this dangerous product.

As injury lawyers often fighting against the odds, we admire the perseverance of Humeston and his counsel who lost their first trial against the pharmaceutical giant, Merck. Undaunted, they sought a second trial when evidence surfaced that short-term Vioxx use could also be risky. Merck claimed that Vioxx did not increase cardiac risks until after 18 months of use, however, doctors have found contradictory Vioxx research that show that taking the drug for just two months, like Humeston, is dangerous.

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Posted In: Pharmaceutical Drugs

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As Orlando medical malpractice lawyers, we are not surprised by the recent study released in the New England Journal of Medicine finding a higher death rate for people who go to the hospital for heart attacks on the weekends. Due to inadequate staffing fewer invasive cardiac procedures are performed on patients having a heart attack on the weekend. The authors suggest that the lack of proper testing caused by the difference in staffing levels appears to be responsible for the increased death rate.

The study tracked over 200,000 patients and found about a 1% difference in death rates of those cardiac patients entering the hospital on the weekend as opposed to a weekday. Certainly, in many medical malpractice cases we have handled over the past twenty years we have found staffing deficiencies as contributing factors. Who can deny that when hospital staffing levels drop, patient care will suffer?

Outcomes for patients with heart attacks improve by early angiography and efforts to open the arteries causing the heart attack. No doctor I have ever deposed has denied that cardiac patients should be treated quickly and aggressively. Unfortunately, the study found that on weekends, hospital staffers perform fewer invasive cardiac procedures because the necessary personnel are not working.

Current guidelines for patients suffering severe heart attacks call for getting them into the cardiac catheterization lab within 90 minutes so their blocked arteries can be reopened. But for those with less severe cases, the procedure may be put off for 48 to 72 hours. Usually, in our cardiac cases involving emergency care, the defense focuses on whether the patient’s presentation warranted faster intervention than what our client received. It seems this current study can be interpreted to suggest that all heart attack patients should receive faster treatment.

While this study may not prevent needless injury and wrongful death to innocent heart attack patients, it certainly sounds an important warning to consumers. The fact that this warning comes from a prestigious medical journal will hopefully have a greater impact on those seeking medical care on the weekend and their family members

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Posted In: Medical Malpractice

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As an Orlando injury lawyer, I read with interest a news article about the struggle to bring the comparative negligence doctrine to injury victims in Maryland. Unlike Florida, Maryland bars any recovery by personal injury victims found to have contributed to the injury or damages claimed. Under this doctrine of contributory negligence many deserving injury victims receive no compensation.

Florida is well within the majority of states that find the contributory negligence rule to be draconian and out-dated. Certainly, it is difficult to imagine a more unfair rule than one which allows a wrongdoer to completely escape responsibility for injury or wrongful death because his lawyer can convince a jury that the victim played some role in the incident. How unjust for a property owner or product maker to create a dangerous situation and avoid accountability by cleverly arguing some degree of fault on the part of the injury victim.

What’s more disheartening about the legislative battle in Maryland is the point made in the Maryland Injury Lawyer Blog. Apparently, the chief opposition to the effort to allow injury lawyers to obtain recovery for clients based on comparative fault is lead by a personal injury lawyer-one with an agenda that seeks to protect his own practice.

Peter Angelos, a personal injury lawyer and owner of the Baltimore Orioles, has determined that he should use his money and influence to prevent injury victims from benefiting from the fairness of the comparative negligence doctrine. His fear of recovery in his asbestosis laden case load puts him at odds with all other personal injury lawyers in that state. While he appears not to oppose the proposed legislation to bring comparative negligence to that state, he is concerned about amendments which may impact recovery where some defendants are insolvent.

I admit to being an outsider in this tort battle in a sister state. However, as an injury lawyer, it is troubling that one among us would sacrifice the overwhelming benefits to the majority of injury victims for the good of one lawyer’s practice. Perhaps I am missing something…if I am, I will be pleased to learn what it is.

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Posted In: Litigation Strategy

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Trying Florida injury lawsuits we have seen the negative effects in jury selection of the lawsuit propaganda put out by the insurance industry, business groups and medical associations. Despite all the efforts of the Florida Justice Association and the American Association for Justice, this propaganda continues and our jury pools will remain infected for the foreseeable future.

To illustrate, America Online (AOL) is running an article titled "Most Outrageous Lawsuits." It describes "crazy lawsuits" reported by groups like Citizens Against Lawsuit Abuse (CALA) and the American Tort Reform Association (ATRA). As personal injury and medical malpractice lawyers, we know these groups see personal injury lawsuits as evil attempts to crush business in the United States. They see no need to hold corporate giants accountable for injury and death to innocent people. They have and will continue to distort the truth about our profession and the American Civil Justice System. By using these fictitious stories of lawsuit madness or twisting the truth of real cases, they poison our future jurors.

Certainly, no personal injury lawyer will ever forget the famous McDonald’s coffee case. Importantly, from our jury selection it seems as though no juror will ever forget that case. As lawyers the lesson we have learned from all this is: Swim with the current. While I support and commend the activities of our state and national associations to undo the image of rampant frivolous lawsuits resulting in billions of dollars for unscrupulous lawyers, we must effectively represent our injury and medical malpractice clients today in this environment.

Fighting this propaganda in the media makes sense. Doing so in the courtroom does not. You must never swim against the rip current unless you plan on becoming a statistic. Instead, you must champion your legitimate injury or malpractice case by contrasting it to the jurors’ perception of frivolous cases they have heard about. Without a doubt, EVERY case I have tried has little difficulty appearing meritorious when compared to the juror’s perception of the “case where the lady spilled McDonald’s coffee while driving at high speed and received a 100 million dollars for a little burn.”

Please understand that I am familiar with the McDonald’s case facts. However, I am not going to try to validate the McDonald’s jury verdict with my client’s jury panel. I would never assume that jurors will believe some lawyer over what they have accepted as truth years before they stepped into our courtroom. Instead, I will allow the jury to compare my client's case with all those “outrageous lawsuits.” Against that standard, I like our clients' chances every time.

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As Orlando injury lawyers we have represented theme park injury victims who suffered serious injury at Universal Studios properties and the many theme parks of Walt Disney World. Many of these individuals who contacted us only wanted the theme park to admit responsibility, apologize and offer to reimburse them for their lost vacation. Of course, by the time they contacted us, these folks were ready to receive full and just compensation.

While business groups falsely accuse Florida injury lawyers of bringing too many lawsuits, it is the failure of businesses to take responsibility for harm caused that forces individuals to seek legal counsel. Why would a theme park, for example, not simply apologize for injuries suffered by a guest due to an arguably unsafe condition? Does it not make good business sense to offer to extend a patron's stay or provide next year's accommodations at no cost?

Offering a real apology and complimentary passes and accommodations may prevent litigation. It would also turn a casual guest into a loyal fan for life. On the other hand, is it fair to judge the guest who is ignored by Universal Studios or Walt Disney World as being litigious because he or she refuses to "go away?"

With fractured wrists, arms and legs, guests complaining that all they wanted was an apology and an offer to "make it up to them next year" are not asking for too much. No, they are asking for too little. Perhaps these Orlando theme parks will learn that injury lawsuits may be avoided with better guest relations.

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Posted In: Amusement Park & Theme Park Injury

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For many years, Florida injury lawyers have seen defendants at trial blame non-parties for damages suffered by injury victims. Now, there is proposed legislation aimed at preventing defendants from blaming others who are not present at trial to defend themselves. Every Florida injury lawyer should support this legislation that would assist in leveling the playing field in personal injury and medical malpractice lawsuits.

As expected, pro-business groups have already attacked this legislation. Big business wants to continue the practice of juries considering the fault of others based on accusations by defendants at trial. We have certainly found that retailers, product makers and health care providers like to distract jurors by arguing that if anyone is to fault for our clients' injury, it is "someone else…anyone else, but not us."

This year's legislation (HB 733 and SB 1558) would stop juries from considering faulted parties not included in a lawsuit when deciding how to divide responsibility for paying damages. Supported by the Florida Justice Association, these bills would end false accusations against parties who are not in the courtroom to defend themselves.

Defendants should be prohibited from pointing the finger at innocent people or businesses to avoid paying for their wrongdoing, leaving victims or taxpayers holding the bag. The proposed legislation permits blame and therefore financial responsibility to be assessed only against defendants who are sued.

As a practical matter, this legislation faces an uphill battle this year. While the Florida legislature has added consumer-friendly representatives, it is still dominated by pro-business interests. For the time-being, in cases where defendants accuse non-parties of wrongdoing, we will continue to ask our jurors: Is there any more cowardous act than to blame someone who is not even present to defend himself?

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According to the U.S. Consumer Product Safety Commission, (CPSC) more than 2.5 million children are injured or killed by hazards in the home each year. That’s despite the fact that, as the Home Safety Council points out, parents of young children are often the most safety-conscious of all Americans.

It is almost impossible to think of everything in your home that can pose a hazard. It is easy to miss dangers lurking in common household products and children's toys. Manufacturers make products which seem so innocent until tragedy strikes. Too many caustic liquids which may appeal to young children do not have child-proof caps. Small toys can present a choking hazard to infants and toddlers.

While there are safety standards for manufacturers, many standards for equipment and baby care evolve over time. For example, walkers that once were popular are now strongly discouraged because children are likely to tumble down flights of steps. Or infant mobiles that attach to a baby’s crib should be removed once the infant is able to pull himself or herself up. By the time children are crawling, safety gates should be placed at the top of stairs, poisons should be locked up, and electrical outlets should be plugged.

Many older playpens and cribs have slats that are too far apart and create a risk of entrapment and strangulation. Likewise, accordion-style baby gates have been linked to child injuries and deaths. Older-style toy chests can be hazardous because lids can slam
shut, or children can accidentally be locked inside and suffocate.

As we have done in past postings and on our web site, we will continue to highlight recalls of dangerous consumer products as part of our commitment to our colleagues, our clients and our community. You can always visit the web site of the CPSC to check on product recalls.

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Posted In: Consumer Products

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Florida mold claims and mold sickness have continued to rise in recent years. As Florida personal injury lawyers we have received more frequent and varied mold inquiries. Home Owners, renters and business owners have been contacting us with mold issues and concerns. Due to changes in insurance coverage, there exists a greater focus on improving construction and maintenance to prevent mold and mold sickness.

Consultants specializing in mold prevention are becoming more numerous and these experts are playing a larger role in the construction of homes and commercial properties. The building industry has become convinced of the need to properly address mold prevention. Perhaps, this focus has resulted not only from liability claims, but also from the fact that insurance companies have stepped away from insuring mold claims. Indeed, the reluctance of insurance companies to cover mold claims means also that Florida home owners should consider themselves fortunate to be able to get mold insurance on their residences.

According to builders and mold consultants, the lack of insurance leaves the burden primarily on the builders. When homes are sold, builders face a substantial liability should mold be present or develop due to a failure to take reasonable and available measures to protect against it. With the public's awareness of mold issues and health-related risks, many individuals are now acutely aware of the need to seek out lawyers who handle mold and mold sickness claims. We have had many callers concerned about black mold, green mold and both new and used construction. Certainly, we have found that consumers are becoming more informed about mold and trying to protect themselves and their families along with their most important investment: their homes.

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Posted In: Mold & Sick Building Syndrome

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