The Importance of Expert Guidelines in Health Care Associated Infection Litigation

In the year 2002 alone there were approximately 1.7 million health care associated infections (HAIs) in the United States and 98,987 associated deaths. In the subsequent decade substantial progress has since been made in preventing HAIs. However, the Centers for Disease Control (CDC) estimates that 1 in 20 patients still get an infection each year while receiving medical care. HAIs remain a threat to patients receiving medical care not only in traditional hospital settings but also in outpatient surgical centers, nursing homes, rehabilitation centers and community clinics.

Given the extent of the problem it is not surprising that personal injury firms receive many phone calls regarding potential HAI cases. Despite their prevalence these are not easy cases to litigate for a variety of reasons. It is often difficult to establish that the infection was actually acquired in the health care setting. Even when this can be proven most patients eventually recover from these infections. Consequently, the damages may not merit the substantial costs and uncertainty of litigation. Perhaps most important, it is often difficult to pinpoint specific negligent practices at the facility in question that likely caused the infection. HAI cases typically require aggressive discovery about facility practices and dogged investigation into lapses in compliance with safety protocols, tasks that are made all the more difficult by HIPAA confidentiality rules and the hurdles imposed by the statutory pre-suit process in medical negligence cases. Read more…

What Steps Should I Take To Protect My Legal Rights Following An Accident?

Make sure an officer is called to the scene
Florida law does not require an officer to be called to the scene of an accident without injuries. In a simple fender bender with no one hurt, each driver is simply required to stop and provide his or her name, address, registration number, and if requested, show the other driver his or her license. The risks of not calling an officer to the scene are fairly obvious, at least if the other driver is at fault. You may be provided with false information and if you do not have a police report you may be at a disadvantage in trying to negotiate your claim and establish the other driver’s liability. If you think the other driver is at fault, we therefore recommend that you call an officer to the scene of any accident in which you expect to make a property damage claim against the other driver or have the slightest suspicion that you or one of your passengers may be injured. If you do not call an officer to the scene, make sure that you get the aforementioned information from the other driver, as well as the name of his or her insurance provider, and ask to be shown a driver’s license to confirm the driver’s identity. If there are any witnesses, try to get their names and phones numbers. Read more…

What Additional Auto Insurance Should I Own?

The requirements for PIP and basic property damage insurance as set forth by the State of Florida are just the bare minimum that is mandatory under Florida law.  This coverage is by no means adequate or desirable to protect you from liability to others or to protect you in case you are injured by a driver who is uninsured or underinsured.  Set forth below are additional forms of insurance coverage which you should consider depending on your particular circumstances.

Comprehensive, Collision and Gap coverage
Collision insurance is property damage insurance that compensates you for damage to your own vehicle if you are in an accident and you are either at fault, or the other driver is at fault but has no property insurance to compensate you for the damages to your vehicle.  Comprehensive coverage provides an added layer of protection by insuring you vehicle against damage not caused by a collision, such as by severe weather damage, vandalism, etc.  Comprehensive and collision insurance are often bundled together by insurance companies. Read more…

What Auto Insurance am I Required to Own in Florida?

When we speak to new clients, we often find that they are uncertain about what automobile insurance they actually own. The client may have simply accepted an insurance agent’s recommendations or just asked for the minimum coverage necessary.  Your automobile insurance is expensive and potentially very important to you, so it is worthwhile to periodically review your coverage to determine whether it is necessary and sufficient.

The Florida Legislature recently enacted some major changes to Florida’ s motor vehicle insurance laws that will take effect on January 1, 2013. Set forth below are the types of coverage that are mandatory in Florida. Read more…

ERISA Plans – U.S. 9th Circuit weighs in on equitable limitations on ERISA Plan subrogation rights

A recent decision from the 9th U.S. Circuit Court of Appeals in CGI Technologies and Solutions, Inc. v. Rose, ___, F.3d ___ (9th Cir. 2012) provides much needed support for plaintiffs battling for equitable reductions from ERISA Plan subrogation claims.

The Employee Retirement Income Security Act of 1974, or ERISA, governs most employer funded health plans, with a few notable exceptions such as where the employer is governmental entity or a religious institution. ERISA plans typically provide that the plan has a right of reimbursement from a plan beneficiary who has made a recovery of plan paid medical costs from a tortfeasor, regardless of whether the plan beneficiary is made whole.  In other words, the plan’s recovery is not to be reduced by the allocable share of the plaintiff’s attorney’s fees and costs or by other limitations on recovery, such as limited insurance liability coverage.  This is a deviation from Florida’s treatment of collateral sources under Fla. Stat. § 768.78, but the U.S. 11th Circuit Court of Appeals has ruled that the “make whole” doctrine is inapplicable to ERISA plans if and to the extent that the plans explicitly and unambiguously so provide.  See Cagle v. Bruner, 112 F.3d 1510, 1522 (11th Cir. 1997); Zurich Am. Ins. Co. v. O’Hara, 604 F.3d 1232, 1238 (11th Cir. 2010); Johnson Controls, Inc, v. Flaherty, Metnick, et al., ___ F.3d ___ (11th Cir. 2011)(unpublished decision). Read more…

Presuit mediation in nursing home cases – is it a condition precedent to suit?

Section 400.0233, Florida Statutes, prescribes the mandatory presuit procedures in cases involving a claim for a violation of a nursing home resident’s rights or alleging negligence in a resident’s nursing home care.  Paragraph (11) of § 400.0233 provides that within 30 days of the claimant’s receipt of the defendant’s response to the claim, the parties or their designated representatives shall meet in mediation to discuss the issues of liability and damages in accordance with the mediation rules of practice and procedures adopted by the Supreme Court. Filing the presuit notice and waiting out the 75 presuit period is a condition precedent to filing suit (see § 400.0233(3)(a)).

Given that the presuit notice and ensuing presuit period is a statutory condition precedent to filing a nursing home lawsuit and that the presuit mediation is also statutorily mandated, what is the effect of a failure to conduct the presuit mediation?  Could it be a condition precedent as well?  Such a conclusion could lead to difficult collateral issues.  For example, would this mean that a defendant nursing home could frustrate any attempt by the plaintiff to schedule mediation and then turn around and use the failure as a ground for dismissing the subsequent lawsuit?  In order to prevent such a scenario, does the plaintiff need to seek presuit injunctive relief from the circuit court compelling the defendant to comply?  If the presuit is not accomplished because of a defendant’s obstructive efforts, would this constitute an equitable ground for denying a subsequent motion to dismiss by the defense? Read more…

Establishing Medical Causation and Permanency

Recently, I’ve seen a lot of discussion regarding the proof needed to establish causation in personal injury claims, mostly based on varied and sometimes confused interpretations of case law that has actually been around from some time.  In Gooding v. University Hospital Building, Inc., 445 So. 2d 1015, 1018, (Fla. 1984), the Florida Supreme Court acknowledged that Florida courts follow the “more likely than not” standard of causation and require proof that the negligence probably caused the plaintiff’s injuries.  See also Wroy v. North Miami Medical Center, Ltd., 937 So.2d 1116 (Fla. 3rd DCA 2006).  Despite this firmly settled legal doctrine, some practitioners continue to use confusing terminology when questioning medical providers about the cause of an injury.  One of the most common and over used terms is “reasonable degree of medical certainty”, as in, “Doctor, are these opinions held to within a reasonable degree of medical certainty?”   If the burden of proof is preponderance of the evidence, then the phrase “reasonable degree of medical certainty” should never have entered our legal lexicon.  It’s believed to be a phrase that started with Chicago attorneys in the 1940’s and, like some social disease, was passed from lawyer to lawyer through the years.  It may have been confused with the instruction that juries only award future damages that are reasonably certain to occur.  It even managed to infect our legislature when, in 1994, they included it in § 440.09(1) of the Workers’ Compensation law requiring occupational injuries to be proven within a reasonable degree of medical certainty.  Fortunately, it has been recognized that “reasonable degree of medical certainty” and “reasonable degree of medical probability” are merely different ways of expressing the same concept.  See, e.g.., Closet Maid v. Sykes, 763 So.2d 377 (Fla. 1st DCA 2000).  The Sykes Court concluded that the statutory use of the phrase “reasonable degree of medical certainty” did not reflect any departure from the established standard of proof. Read more…

Categories: Personal Injury
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