RIP to PIP?

Florida is one of ten states that require drivers to carry personal injury protection auto insurance (PIP).  It can be argued that the basis for the insurance industry having lobbied for a system of “no fault” coverage was originally to restrict the number of claims for vehicular related negligence claims, fraudulent or righteous, however the opposite has clearly occurred.

The issue today is how to maintain a system of justice that allows for people to quickly and efficiently have access to needed compensation after they’ve been injured in a vehicular accident, especially one that wasn’t their fault, and need to pay for medical care as a result.  No matter what laws are on the books, there will always be a few who attempt to cheat the system (as we saw when some in both the legal and medical profession were recently arrested in a sting uncovering an alleged scheme of insurance fraud), but is it then fair to deprive the masses because our system might not be properly monitored and regulated?  And furthermore, is the insurance industry the innocent player it makes itself out to be in all of this?

Now, as calls for eliminating the PIP coverage requirement gain steam, we have to ask ourselves if that is the best course moving forward.  While PIP fraud may seem to be an issue, according to several sources, it appears to be trending downward, and with the passing of additional legislation in 2012 aimed at curbing PIP fraud, insurance premiums appear to be falling as well.

While both sides of this debate have merit, it is important to remember that the actions of some unscrupulous individuals and insurers (driven by greed instead of ethics) should not give momentum to an argument that wants take benefits away from people who truly need it.  And more importantly, those of us privileged to work in law or medicine should hold ourselves to a higher standard, and demand that our colleagues do the same.

If you’ve been involved in a car accident or know someone who has, please call us at (954) 349-3300 for a free consultation.

In Preventing Falls, Elder Care Facilities Struggle to Find Their Balance

Today, America is facing an aging population, and with the baby-boomer generation heading into retirement and beyond, the need for elder care and other related services is growing as well.  Not only will the next generation of seniors be larger in size, but because of the considerable advances made in health care, they will be living longer, too.

One of the most difficult issues facing elder care facilities in accommodating a growing elderly population, is finding a balance between providing a safe environment while allowing residents to maintain as much independence as possible.  As this segment of the population grows, the number of seniors who fall and suffer serious, or even fatal injuries, is growing rapidly.

As falls have increased, so to, has related litigation, and elder care facilities are now tasked with protecting residents to the best of their ability while protecting their bottom line, as well.  As the Centers for Disease Control and Prevention notes, in 2012, elderly adults were treated for 2.4 million nonfatal falls, of which more than one-third were hospitalized.  Moreover, between 20-30% of those people suffered moderate to severe injuries, and nearly 24,000 of those falls ultimately proved fatal.

As a result of this growing and dangerous trend, elder care facilities have been vigilant in making efforts to protect their residents, while allowing for residents to retain their lifestyle.  These facilities have turned to solutions that include automatic floor lighting that illuminates a path for a resident as soon as their feet touch the ground, energy-absorbing flooring to help soften the impact of a fall, lessons on preventing falls and also fitness classes to help improve strength and balance.  Other efforts like using contrasting colors on flooring, or even adding white stripes to the edge of stairs are helpful in making potential hazards more noticeable, even to someone with deteriorating vision.

The more that these facilities push, however, the more residents are inclined push back if they feel as though they are being too coddled.  Residents of these facilities spend exorbitant amounts of money to be well cared for, but also for the ability to retain a semblance of independence in their daily lives.  For elder care facilities, finding the balance between maintaining resident safety, improving independent lifestyles, and limiting liability is a difficult one, and makes the hard work they already do, even harder.

If you know someone who has been injured while under the care of a nursing home or assisted-living facility, please call us at (954) 349-3300 for a free consultation.

For more information on this topic visit the Centers for Disease Control and Prevention at:

http://www.cdc.gov/HomeandRecreationalSafety/Falls/index.html

 

Tip of the Caps: Tort Reform’s Real Impact on Health Care

A new study has revealed that legislatively imposed caps on damages in medical malpractice cases has a clear detrimental effect, not only on injured parties and their respective families, but on the quality of health care in general.

In fact, the authors of this study claim that these reforms even lead to increased medical errors and health care costs. The essence of this allegation is that because providers are aware of these caps, and know that they will act as a backstop against substantial sums of money being awarded, that there is a relaxation in the care provided.

Furthermore, health care costs in states that have enacted such caps on damages have largely seen no reduction in such costs, but alternatively, have even seen an increase in spending, including Medicare Parts A & B. The reason behind this jump in costs is related to physicians having a greater willingness to provide riskier or unnecessary procedures, which under normal circumstances these physicians would avoid.

It is evident that there are certain purported benefits of Tort Reform that are trumpeted to both lawmakers and the public in an effort to garner wide support for such measures. However, the reality of these benefits, as well as the intent behind trying to enact them, is far more nefarious.  It appears that the victims of medical malpractice are not the only ones harmed by these reforms, because at some point, we may all feel the impact of this destructive, and self-serving, legislation.

For more information you can view the study directly here:

http://centerjd.org/content/fact-sheet-new-studies-show-caps-damages-ruin-health-care

Veterans and Families Unable to Bring Claim against Camp Lejeune

A North Carolina federal court handed down a ruling this week impacting thousands of Floridians currently attempting to bring a case alleging injuries linked to their exposure to various carcinogens found in the drinking water at Marine Corps Base, Camp Lejeune. The group of Floridians was compiled by the Marine Corps, and exposures to the cancer-causing agents may reach back as far as 1953.

Unfortunately for the plaintiffs here, North Carolina has a statute of repose that puts a 10-year limit on the ability to bring claims and seek damages stemming from exposure to contaminants. However, plaintiffs assert that the North Carolina statute of repose cannot pre-empt current federal environmental law, and thus, should not be barred by the statute of repose.

Unfortunately with statutes of repose, unlike statutes of limitation, there is a much more difficult burden to bring claims, such as this one, despite the potentiality for devastating and deadly injuries which, from a gut-level assessment, should make one’s blood boil. Just how is it that someone is supposed to bring a claim within a statutorily mandated time period even though they might not experience any detrimental effects for years, even decades, after the statute has voided their ability to bring such a claim?

At this point, there is no way to definitively determine just how many people may have been exposed to this contamination. Some estimates put the number at over one million.  That means that possibly more than one million people, including veterans and their families who lived on the base from the 1950’s all the way through 1987, were exposed to chemical agents that cause cancers of the cervix, esophagus, kidney and liver, and Hodgkin’s lymphoma, among others.  Not that it solves the problem, but at least those who actually served could have their medical expenses covered by the Department of Veterans’ Affairs, but for those who didn’t, almost all civil remedies at their disposal have been voided.

From a legal standpoint, the ruling on the statute of repose is sound, however, this isn’t a victory that the government should be celebrating.

Are Enacting Helmet Laws Just a Matter of Using our Heads?

Earlier this month, a 24-year-old man suffered a serious (thankfully not fatal) head injury after rear-ending an automobile in Dania Beach.  According to the driver of the scooter, the vehicle pulled out in front of him, making the collision unavoidable.  As the driver of the scooter was taken to the hospital, a spokesman for the Broward Sheriff Fire Rescue noted, “A helmet would probably have saved him a trip to the hospital.”

The question of whether a motorist using a motorcycle or scooter should wear a helmet is one that seems to be split throughout the country. At the moment, only nineteen states have enacted universal helmet laws, requiring helmets for all riders.  Twenty-eight states currently have partial laws on the books, those which require riders or drivers meeting specific criteria to be helmeted.  That leaves three states, Illinois, Iowa, and New Hampshire, as the only states nationwide that have no motorcycle helmet laws at all.

Florida, a state that has enacted a partial law, requires those under 21 years of age, or those with less than $10,000 in medical coverage for motorcycle-related injuries to strap on a helmet. At one point the Sunshine State did have a universal law, though it was repealed in 2000.

There is a delicate balance between the government’s responsibility to ensure the safety of its citizens while also affording its citizens the freedom to make voluntary decisions in their personal lives, and is probably a driving factor (no pun intended) as to why the states are nearly split on this issue.

Proponents of universal helmet laws claim that such laws not only promote safety, but also save states substantial amounts of money in both the areas of taxpayer covered medical costs, as well as lost productivity of those who are injured. Thomas R. Frieden of the Center for Disease Control states that “In 2010, more than $3 billion in economic costs were saved due to helmet use in the United States.  Another $1.4 billion could have been saved if all motorcyclists had worn helmets.”  Now while it may be difficult to pin down precisely how “economic costs” are calculated, or moreover, how accurate that actual number is, it would be even more difficult to argue that wearing a helmet doesn’t diminish the chance of suffering a head injury in an accident.

However, there are those that are willing to make that argument. The American Motorcyclist Association (“AMA”) believes that adults should be able to voluntarily make the choice whether or not to wear a helmet when riding.  The AMA responds to claims that helmet laws save money by citing studies purporting to show that the rate of injured motorcyclists actually rely on public funds at a lower percentage than that of the general public and only represent a fraction of healthcare costs overall.  Further, they say that drivers of automobiles and motorcyclists are covered by insurance at a nearly identical rate.  In addition, the AMA notes that mandatory helmet laws do nothing to prevent accidents and it supports increased motorcycle safety and education programs as a more effective alternative.

It seems that there is merit to both arguments when it comes to the debate surrounding motorcycle helmet laws. Perhaps Florida, and states like it, have the right idea.  While requiring minors or even passengers in general to be helmeted is smart, also requiring riders who decide to go without a helmet to carry enough insurance where an injury won’t necessitate taxpayer funds could alleviate concerns on both sides.  Because in all honesty, if a rider wants to have the freedom to go without a helmet, he should also have the responsibility of bearing any consequences that come with that risk.

 

 

Tracy Morgan, Wal-Mart, and Litigating in the Court of Public Opinion

By now, you’ve undoubtedly heard the news surrounding Tracy Morgan and Wal-Mart. To recap, on June 7 of this year, a Wal-Mart tractor-trailer struck a limousine bus on the New Jersey Turnpike, killing one and severely injuring others on board including comedian, Tracy Morgan. According to reports, Morgan’s limo was at a “dead stop” when it was struck by the Wal-Mart truck, which was estimated to have been traveling as much as twenty miles per hour over the posted speed limit (65mph in a 45mph zone) for at least sixty seconds before the collision.

In fact, the driver of the Wal-Mart truck is alleged to have been asleep at the time of the accident. According to reports, the driver had not only spent almost fourteen hours behind the wheel of the Wal-Mart rig, but his shift was immediately preceded by a drive from his home in Jonesboro, Georgia, to the Wal-Mart facility in Smyrna, Delaware, roughly a 750 mile trek.

Taking all of this into consideration, Morgan is well within his rights to pursue compensation from any and all available sources for what almost certainly amounts to negligence on the part of Wal-Mart. It stands to reason, as it is alleged by Morgan, that Wal-Mart clearly knew, or should have known, that requiring one of their drivers to log a fourteen-hour shift after driving most of the Atlantic coast is unreasonable at the very least. And after hearing this news, most of the circulating feedback was somewhat critical of Wal-Mart, and most seemed to acknowledge that Morgan was the victim.

Herein lies the issue with being the largest retail company in the world embroiled in litigation with a famous, and very well-liked comedian: the public is going to take an interest. Litigating a suit against a former Saturday Night Live star who still needs a wheelchair three months after this accident could result in a devastating impact on Wal-Mart’s image, and more importantly, its bottom line.

Indeed, Wal-Mart learned this lesson the hard way. In an effort to limit fault and mitigate its damages, Wal-Mart attempted to shift at least a portion of liability to Morgan. They claimed that he was negligent in not wearing a seat belt, and that negligence, in turn, was a major contributing factor in causing his injuries, which, let’s be honest, is a smart approach and just plain competent lawyering.

However, this approach gave Morgan’s attorney immediate leverage, allowing him to publicly bemoan that the retail giant was skirting responsibility by asserting that the faultless victim was responsible for his own injuries. This should have been anticipated by both the legal and PR teams at Wal-Mart, but apparently wasn’t. In a move that made them look flat-footed and unprepared, they went back on their position and publicly stated only one day later they wanted to settle the case as quickly as possible. While settling this case is probably the prudent strategy for Wal-Mart, taking a legal position, and a reasonable one at that, and then running from it because they were caught off guard makes them look much worse.

Again, there is a lesson to be learned here. Finding yourself involved in a high-profile case can be a great opportunity in terms of favorable publicity and establishing a reputation, but if mishandled, can quickly diminish credibility and provide opposing counsel with leverage they haven’t earned. It is important to weigh all sides of an issue and not be blinded by the desire to win, because in the long run, it may not be considered a victory at all.

For more info the case is Morgan v. Wal-Mart Stores Inc., 14-cv-4388, U.S. District Court, District of New Jersey (Trenton).

For further discussion regarding this topic, or if you or someone you know has been involved in a similar incident please contact the Attorneys at the Schulman Law Group at 954-349-3300, 1-877-529-0444 or at info@schulaw.com

Millions Awarded For Texting While Driving Lawsuit

A Florida Court awarded over 4 million dollars to a brain injury victim of a car accident caused by an individual who was texting while driving.  The victim was 26 years of age.  The Florida Highway patrol testified that the victim was a passenger in a vehicle being operated by her then boyfriend.  The vehicle the victim was in vehicle that failed to stop for a stop sign and collided with a tractor trailer.  The driver of the victim’s car was texting which prevented him from observing the stop sign or the fact that a tractor trailer was in its’ path.

Accidents caused by texting are occurring everyday throughout Florida cities like Weston, Fort Lauderdale, Davie, and Pembroke Pines. For instance,  Sunrise, Florida residents are coming upon many intersectional accidents that occur near Sawgrass Mills Mall because someone is too busy texting while driving.

In the case which was decided in Flagler County, the victim remained in a coma for weeks and yet still requires assistance to ambulate.  In that case the party at fault was uninsured and yet the victim still wanted her day in court.   The case was tried solely before a Circuit Court Judge and no jury.

We now know that texting while driving is many times more dangerous than driving drunk.  There are texting and driving simulators that are being used in schools throughout Florida to demonstrate how serious it is.

Unfortunately, Florida’s legislature has failed to make texting while driving a criminal offense, and in fact, the fine is only $30.00 if you are caught texting while driving anywhere including Fort Lauderdale, Florida.

For further information or discussion on this topic feel free to contact the Weston, Fort Lauderdale Accident Attorneys at the Schulman Law Group at 954-349-3300, 1-877-529-0444 or at info@schulaw.com

Is Your Weston, Fort Lauderdale, Florida Smoke Detector Protecting You?

ESL, and INTERLOGIX hard wired smoke alarms are being recalled.  Apparently the Interlogix brand 400/500 series smoke detectors are experiencing radio frequency interference that can cause the units to fail to warn occupants in a room of detected smoke.

Anyone with such a smoke detector in Weston, Fort Lauderdale, Pembroke Pines, Florida or any other installed location, should immediately get in touch with their security system provider to determine if these recalled unit are part of their fire prevention system.   Consumers will receive a free replacement if their Davie, Fort Lauderdale Florida units have ESL/ INTERLOGIX 400/500 series smoke detectors.  There is a complete descriptions of both of these models by each manufacturer in the warning that is attached to this article.

These units were designed to be installed professionally in homes, college dormitories, apartments, commercial buildings, hotels, and the like.  If you review the warning from the manufacturer you will be able to determine whether your particular series number is involved in this recall for any of the units that may be installed in a Sunrise, Weston, or Fort Lauderdale, Florida dwelling are listed in the corporate recall notice.

While the corporate warnings claim that there have been no incidents of injury, needless to say, the more information concerning the potential for harm that is disseminated to the Weston, Pembroke Pines, Sunrise, Florida public the safer it will be for the ultimate intended user.

For further information or discussion on this topic feel free to contact the Weston, Fort Lauderdale Products Liability Attorneys at the Schulman Law Group at 954-349-3300, 1-877-529-0444 or at info@schulaw.com

Faulty Hip Transplants Lead To A Multi-Million Dollar Group Settlement

Biomet Inc., has agreed to pay over $50 million dollars to settle lawsuits filed with regards to defective hip prosthesis designed and manufactured by them.  The particular device that was part of the failures and litigation are known as M2a Magnum.  There are hundreds of reports of failures of these prosthesis that have led to injuries.

As a condition of the settlement the manufacturer has to escrow $50 million dollars plus.  All recipients (including Weston and Fort Lauderdale, Florida residents) of either the Biomet M2a 38 or M2a Magnum hip prosthesis are scheduled to receive at least $200,000 dollars.  Claimants throughout Weston and Fort Lauderdale Florida are entitled to receive a minimum of $200,000.00 depending on whether or not the operative reports and pathology reports demonstrate ALVAL (aseptic lymphocyte-dominated vasculitis-associated lesion).

Apparently, the metal in these prosthesis enters into the blood and hip compartment, causing significant injury to the hip joint.   If one chooses to opt out of the settlement then that case would head to mediation and then if it cannot be resolved in a Fort Lauderdale or South Florida mediation then the case would continue in the Florida, Federal Court system.  The claims are predicated upon a determination that the claimant required surgical revision due to a condition named Metallosis.  Metallosis is caused by chromium and cobalt leaking from the prosthesis.  A South Florida, Weston or Davie or Fort Lauderdale claimant can either qualify for the $200,000.00 settlement amount or attempt to seek more if they can demonstrate unusual related infections, long term disabilities or other long term impairments as a result of the revision surgeries.

For further information or discussion on this serious topic feel free to contact the Fort Lauderdale Product Liability Attorneys at the Schulman Law Group at 954-349-3300, 1-877-529-0444 or at info@schulaw.com

 

Who Remains Silent about Alleged Sexual Abuse as a Boy Scout?

On Wednesday, July 23, 2014 a man in his fifties filed a very serious lawsuit against the Boy Scouts of America.  Unfortunately, the basis of this suit is founded upon alleged scout leader sexual misconduct.  The suit also identifies this scout leader as having been previously banned for providing alcohol to underage individuals.  The suit claims that the BSA allowed the particular branch of the Boy Scouts of America to hire Calvin Malone in the 1970’s, despite having been previously banned for intoxicating young boys. The lawsuit claims in part that the Boy Scouts of America failed to provide proper warnings to the parents, or the young boys in the scout group regarding this alleged predator.  Of course the suit against scouting is centered upon the perceived high moral level of trust that scouting functions upon and how that trust, at least in this particular instance, had been breached.  In this lawsuit, records have been allegedly uncovered that the Boy Scouts of America had a file on this particular scout leader establishing that they were aware that he had sexually abused a child previously, as well as they knew of his propensity to serve alcoholic drinks to minors.  The suit discloses that Malone apparently had a method of encouraging his scouts to get so drunk until many of them passed out. Since these alleged acts occurred in the mid 1970’s the Plaintiff (who is undisclosed in this case at this time, and appears as “Jim Smith”) is currently in his 50’s.  Of course the Boy Scouts of America refuse to comment on the litigation just filed but, issued a statement that this form of abuse is contrary to everything that the Boy Scouts of America stands for. I submit to you that the reason why this particular suit is of significance is that it raises the important question of how many other ex-scouts may be out there who may have been subjected to similar misconduct, and have sat silently still, suffering this long? For further information or discussion on this serious topic feel free to contact the Victim’s Rights Attorneys at the Schulman Law Group at 954-349-3300, 1-877-529-0444 or at info@schulaw.com