Orlando Injury Lawyer Blog

As an Orlando injury lawyer familiar with the case of the “$65 million dollar pair of pants,” I enjoyed the recent post in the Maryland Injury Lawyer Blog. For those of you who are not familiar with this case, that post provides the background. In essence, Mr. Pearson is a lawyer and administrative law judge who brought a lawsuit against his neighborhood dry cleaner for misplacing his pants. Two years later, stacks of legal pleadings and discovery and hundreds of hours of time, Mr. Pearson remains determined to get his “cup of justice.” Importantly, justice in Mr. Pearson’s view requires more than the $12,000 that has been offered to settle his claims-much more. His complaint against his dry cleaner seeks over $65,000,000 including compensation for mental suffering, inconvenience, discomfort, the value of the time he has spent on the lawsuit, and for leasing a car every weekend for 10 years because there is no dry cleaner close to his house.

As my colleague’s post points out, this case, which does not involve personal injury is bad for all injury lawyers. The reason-this case can be used to support the position of tort reformers that our civil justice system is out of control. Of course, who among us could argue, with a straight face, the merits of Mr. Pearson’s multi-million dollar claim?

That is precisely why I view Mr. Pearson’s claim as a great advantage for all of us in our injury lawsuits. In every jury selection, I bring up the subject of frivolous lawsuits. I provide an opportunity for my jury panel to share any outrageous cases that they have heard about. When finished, I always try to bring them up to speed on the biggest “junk lawsuit” that I have come across. Why do I do this? I have found that Mr. Pearson’s claim and similar ones, provide an opportunity to present evidence in jury selection that my client’s claim is absolutely meritorious. Compared to $65 million for a pair of misplaced pants, my client’s physical injury, her loss of function and the defendant’s misconduct would appear to justify a favorable verdict.

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Posted In: Litigation Strategy

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My recent blog regarding a Texas judge’s ruling in a Vioxx case has stimulated further thought on the effectiveness of the “failure to warn” claim in drug product liability cases. As I shared, Texas may eliminate drug injured plaintiffs’ failure to warn claims in about 900 Vioxx cases if Merck & Co. complied with the FDA’s minimum requirements.

The purpose of this post is not to re-visit that announcement but to expand upon the value of the failure to warn case in drug litigation and the resulting hardship to injured consumers if federal preemption applies. Unlike manufacturing defect and design defect claims, failure-to-warn claims are available and can be proven. These claims provide many opportunities for a jury to consider whether consumers are entitled to more information about dangerous drug side effects.

For example, if the side effect your client suffered was not specifically included in the warnings should it have been? If the drug maker mentions the side effect your client suffered, was the warning clear and effective. Where did the drug maker put the warning- in the section marked "warnings" or "contraindications" on the labeling, or in the section marked "precautions." A jury can appropriately consider whether the warning should have been in a “black box.”

Of course, you should consider whether the manufacturer should have sent a "dear doctor" letter to all physicians telling them about the risk. Perhaps your particular client’s use of the drug creates some issues of adequate and fair warnings. Did your client require or receive a high dose or use the drug for an extended period? Did such circumstances lead to foreseeable injury that should have been identified as part of the labeling?

As you can see, the failure to warn claim is “The Claim” in these drug cases. You must remember that there is more to the plaintiff’s case than just proving inadequate warnings. You must also prove that your client would not have used the drug if properly warned and that the drug is the cause of your client’s injuries. The failure to warn claims help to level the playing field when you go up against a giant drug maker.

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Posted In: Litigation Strategy , Pharmaceutical Drugs

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In our medical malpractice cases, we always find prospective jurors with strong opinions against medical malpractice claims. Many folks simply believe that doctors should not be sued as long they tried their best. Unless these prospective jurors find that a doctor intended to do harm, they do not believe a doctor should be sued. A recent study on juror bias in medical malpractice cases reveals that most people not only favor doctors going into medical malpractice trials, but easily find for the doctor if there is any doubt about the plaintiff’s claim.

A study by Philip Peters Jr., J.D., a professor at the University of Missouri, Columbia School of Law, entitled "Doctors and Juries," presents an analysis of medical liability lawsuits from 1989 to 2006. Peters reports that juries can identify weak allegations against physicians and that 80 percent to 90 percent of the time, jurors come to the same decisions that independent legal experts would have made. In addition the study finds that juries accept the testimony of the doctor’s expert when there is any conflict in the evidence. If that occurs the jury seems to dismiss the testimony of the plaintiff's expert.

"From the perspective of malpractice defendants, at least, jury performance is remarkably good," wrote Peters in the study. Importantly for all plaintiff malpractice lawyers, the study finds that patients lose about half the cases they would have been expected to win. Again, this emphasizes the need for practitioners to simplify cases and embrace all of the facts. As the patient’s lawyer we must never run from difficult facts. This study demonstrates the need to deal with apparent inconsistencies in the proof and turn them to your advantage.

In one of our cases, for example, a patient failed to return for a follow-up visit. The doctor and his expert both claimed that if the patient simply returned all the necessary care would have been provided and the tragedy avoided. In essence, this was the classic “blame game.” Rather than ignore this "bad evidence" or run from the fact that our client missed an appointment, we emphasized the fact that the defendant was contacted after the scheduled visit and never asked to see the decedent. We questioned the defendant about how important the studies were that he claimed he would have performed. We asked “if these studies were so important, would you agree that it would have been even more urgent to do those studies 2 days after the scheduled visit when you were speaking with your patient?” Sadly in this case, the defendant failed to instruct his patient to come right in to do the necessary studies. This, in our view, really strikes at the heart of the defense, destroys the doctor’s credibility and eliminates any inconsistencies in the proof.

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Posted In: Medical Malpractice

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An Orlando woman came to our office to share a terrible tale of obvious neglect leaving her family member severely injured. Yes, the tortfeasor was a deep-pocket and there were no issues of comparative negligence. What’s more, hearing about the victim and his extraordinary attributes left no doubt that fair compensation would require a substantial award. Nonetheless, I spent the rest of the conference explaining why our firm could not bring a injury claim for that family. The reason: the injured plaintiff was a U. S. military serviceman and the tortfeasor was the United States.

Our military members have been barred from suing the federal government for injury resulting from negligence or medical malpractice. It does not matter how egregious the wrongful conduct, unlike civilians, the military men and women have no right to hold the United States accountable for preventable injury and death.

While injury and medical malpractice lawyers understand these limitations most Americans do not know that service members are denied the basic right to sue when they are injured by negligence. The military's loss of legal protections is the result of a 1950 Supreme Court ruling on a series of cases that became known collectively as the Feres Doctrine. It was named after Army Lt. Rudolph Feres, who died in a fire allegedly caused by an unsafe heating system in his New York barracks. In this and later opinions, the Supreme Court interpreted the Federal Tort Claims Act to effectively bar any tort actions by servicemembers, even though Congress exempted only "combat-related" injuries. The court unilaterally decided that even injuries in peacetime that are far removed from any combat-related function are still "incident to service."

With the Walter Reed Hospital scandal in the news and everyone concerned about our military working to its limits, Congress should take this opportunity to amend the Federal Tort Claims Act and end this terrible doctrine. From statements by the U.S. Supreme Court and lower courts, the Feres doctrine is not well-received. Yet it remains a bar to meritorious lawsuits in a vast array of activities involving our military. One horrible example is the rape of a military woman that could have been prevented. Do we really need such injustice to continue?

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If you handle Vioxx or other pharmaceutical claims, you can feel the pain of those Vioxx lawyers in Harris County, Texas. State District Judge Randy Wilson, who oversees all state Vioxx claims, told lawyers in the case of Ruby Ledbetter versus Merck & Co. that he plans to issue an order dismissing her failure to warn claims. The judge has decided that a 2003 Texas Tort Reform law applies to the nearly 900 Vioxx cases pending in that state.

While Florida injury lawyers struggle with legislative changes and dread each time Tallahassee gets geared up for a new session, at least we have been spared some of the draconian tort law changes in Texas. To be sure, if the Vioxx judge is correct then the most effective, indeed the only meaningful claim that is often pursued in pharmaceutical cases will be eliminated.

The fair warning issue is the strongest and most persuasive trial theory in these cases. Most people believe that they are entitled to all available information about a drug’s dangerous side effects so that they can make an informed decision whether to take it or not. The fact that the manufacturer complied with FDA minimum standards does not deprive the jury from determining whether consumers were entitled to more. That is unless federal preemption controls your drug case.

The preemption defense in pharmaceutical product liability cases is deadly. If all drug manufacturers have to do is comply with the FDA warnings or insert requirements, and it does, then you have no failure to warn claim. What is left? While you may plead counts for for strict liability, negligence and warranty, but usually those counts can not be successfully supported. You do not usually find evidence of a manufacturing defect or a defectively designed drug. After a manufacturer spent millions and took years to develop and bring the drug to the marketplace, it would prove fruitless to argue that a safer drug could have been designed. Therefore, we should all keep an eye on what happens in Texas.

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Posted In: Pharmaceutical Drugs

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As all injury lawyers know, Florida's Constitution provides state and local governments with sovereign immunity and caps damages they must pay at $100,000 per person and $200,000 per incident. Any settlement or jury award for more must be approved by the Florida Legislature. Having prosecuted significant injury and medical malpractice claims against government entities, the prospect of seeking recovery for additional sums through a claims bill creates much uncertainty.

For example pending claims bills in Tallahassee which continue to languish include: an $8.5 million jury award for a 19-year-old woman paralyzed as an infant by doctors employed by the state; $800,000 that the state Department of Transportation agreed to pay the family of a woman killed when a ladder flew off a DOT truck and hit her car; $1.25 million to compensate a man imprisoned 24 years for crimes he didn't commit.

According to the Miami Herald, 32 families are seeking a total of $42 million for claims either negotiated with a government or awarded by a jury. In 2005-06, then-Senate President Tom Lee and House Speaker Alan Bense balked at moving the claims bills. They blamed a flawed process and claimants' lobbyists and lawyers. Mr. Lee said that lawyers and lobbyists got too much of the settlements. He wanted to cap their fees at 25 percent of the settlement. Yet nothing was done. The former leaders' attitude has lingered. Claimants don't have much reason to hope this year.

We absolutely support the Miami Herald’s position that if the process is flawed, then it should be fixed so that those entitled to compensation get their due. Victims of government negligence or incompetence whose lives have been shattered by tragic and grievous mistakes deserve timely justice. Unfortunately, from past experience we do not see any quick fix or effective solution coming out of this year’s legislative session. Of course, for all those injured or to become future victims of governmental neglect, we hope we are wrong.

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Recently, Orlando medical malpractice lawyers filed a lawsuit against Orlando Regional Medical Center to find out what happened to their client. Almost nine months ago, Claudia Meja went into Orlando Regional South Seminole to give birth to her son Mathew. She was kept in the hospital for complications and, twelve days later, was moved to Orlando Regional Medical Center. After being moved, she underwent a quadruple amputation. The hospital told her she had a flesh eating bacteria, streptococcus, and toxic shock. But she wanted to know more specifics about what had happened, including how, exactly, she had caught streptococcus.

When the hospital wouldn’t give her any more info, she sought legal counsel who directed a letter to under Florida’s “The Patients Right to Know About Adverse Medical Incidents Act.” That would seem an appropriate course of action. Certainly, one would assume that becoming a quadruple amputee sure sounds like an adverse medical incident to me. And the hospital’s response?

A letter saying that “Ms. Mejia’s request may require legal resolution.” In other words, “sue us if you want to know.” So her counsel has now filed suit against the hospital to find out why she lost her limbs. This case should be monitored to determine whether Amendment 7 has any teeth. From our experience, hospitals are raising work-product privilege objections in an effort to deny discovery of adverse incident reports. The applicability of this privilege may need to be addressed by the Florida Supreme Court. As we understand the issues briefed in the Buster case presently before the Court, work product privilege was not relied upon in the trial court and therefore will not likely be addressed.

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Posted In: Medical Malpractice

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As Orlando injury lawyers our cases, like yours, likely include issues of insurer bad faith. Of course, how we respond is critical to our clients' ability to hold insurance companies accountable for their improper conduct. In the aftermath of Hurricane Katrina, litigation has emphasized the importance of e-mail correspondence in proving insurer misconduct in these cases.

In e-mails State Farm Insurance Company had threatened to fire a firm hired to inspect storm-damaged homes after Hurricane Katrina, and firm leaders suggested that the insurer was dissatisfied with how it was reporting damage. Attorneys for homeowners suing State Farm claim e-mails support their argument that the insurer pressured its engineers to alter their reports on storm-damaged homes so that policyholders' claims could be denied.

The e-mails indicate that State Farm was threatening to dismiss Raleigh, North Carolina-based Forensic Analysis & Engineering Corp. less than two months after Katrina hit on Aug. 29, 2005. In part the e-mails contain instructions from State Farm to stop using local engineers to inspect properties because they were "too emotionally involved" and were "working very hard to find justifications to call it wind damage when the facts only show water induced damage."

Of course, handling property damage claims, State Farm like many insurers post-hurricane point out that their homeowner policies cover damage from wind but not rising water, including wind-driven storm surge. That forms the basis for the insurer's efforts to deny coverage to hurricane victims.

In the Katrina cases, the engineering firm sent a reply to State Farm which questioned the insurer's motivations and questioned if there was an ethical problem with State Farm telling the firm what to put in reports. Certainly, this would prove important and quite damaging should these e-mails ever be presented to a jury considering the relevant issues. Obviously, these e-mails provide clear evidence of the independent engineers hired by State Farm expressing concern about being pressured to change reports. As in many insurer bad faith cases, e-mails should be considered when formulating discovery requests.

By the way, in response to suggestions that State Farm acted in bad faith, its representatives recently told the media, that State Farm is committed to conducting itself in an ethical and appropriate manner and any suggestions to the contrary are simply wrong. Does that surprise you?

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Posted In: Litigation Strategy

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As Orlando medical malpractice lawyers we often find surgical and anesthesia cases involving terrible neglect and significant damages. However, the doctors or surgeons involved possess inadequate insurance coverage. Is there any opportunity for you to provide your injured medical malpractice client with full compensation?

Every Florida medical malpractice lawyers should consider the applicability of the hospital's non-delegable duty to provide competent medical care to its patients. While hospitals have strenuously fought liability for the actions of its staff doctors, plaintiff medical malpractice lawyers have had some success. Recently, in an anesthesia malpractice case, Florida medical malpractice lawyers have received additional ammunition to hold hospitals responsible for negligent provision of medical care and services in their facility.

In Judith Wax v.Tenet Health System Hospitals, Inc. et.al.32 Fla. L. Weekly D641(March 16, 2007) the Fourth District addressed hospital liability for an anesthesiologist's negligence. In this wrongful death, medical malpractice case the court undertakes a great analysis of the doctrine of non-delegable duty. Looking to common law, contract law and Florida statutes, the court held that the hospital involved may well have assumed the non-delegable duty to provide anesthesia services. The court went on to rule that if the hospital did assume such a duty then such services must be performed in a competent manner. Refreshingly, the court announced that patients should expect to receive careful and non-negligent services in Florida hospitals.

This is a must read for every Florida medical malpractice lawyer. We have for too long been fighting an uphill battle to obtain justice for our clients. With arbitrary limitations now in place, being able to hold hospitals responsible for anesthesia, surgical and pathology services should at least be considered in every case. As you will see by reviewing this decision and the Fifth District's opinion in Pope v. Winter Park Healthcare Group, Ltd, 939 So. 2d 185(Fla. 5th DCA 2006) discussed at length by the Wax court, the hospital consent form may provide the contractual basis for hospital liability. Indeed, as the Wax court stated in a footnote holding hospitals to a non-delegable duty to provide adequate radiology departments, pathology laboratories and emergency rooms "makes sense as an aspiration for the evolution of Florida law."

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Posted In: Medical Malpractice

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Having handled Florida medical malpractice cases, it is always difficult to have to explain to potential clients that the statute of limitations bars otherwise meritorious claims. This is even more tragic when the claim involves a minor child. Recently, the Ohio Supreme Court rendered a decision which gives parents more time to file medical malpractice lawsuits against doctors for injury to their children. The ruling extends the window in which parents can file lawsuits from one year up to the child's 19th birthday.

The unanimous decision was based on claims brought by the parents of 17-year-old Tara Fehrenbach of Loveland. Tara suffered permanent injuries as a result of bacterial meningitis that she contracted as an infant in 1990. The meningitis was not diagnosed timely and led to severe brain damage. Of course, as you would expect, Tara’s parents were all consumed with the medical needs of their daughter and they did not think about potential medical malpractice claims.

Tara's parents eventually filed a lawsuit on behalf of their daughter and themselves in 1997 against her pediatrician, and the pediatric group. They claimed negligence because the defendants failed to diagnose and treat the meningitis that led to Tara's health problems. However, due to Ohio’s very short statute of limitations, the Fehrenbachs' case was dismissed as being time-barred. Now this draconian result has been remedied.

While Florida and most states often talk about putting children’s interests first, it seems that in reality, too little is done. Here, the Ohio state supreme court has advanced the interest of child victims of medical malpractice and should be applauded.

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Posted In: Medical Malpractice

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