Miami Injury Lawyer Blawg

Its no secret that Impaired driving remains one of the biggest killers in the United States. In particular, drunk driving accidents in Miami and Miami Beach are a common occurrence.

The National Transportation Safety Board today recommended that all 50 states lower the benchmark for determining when a driver is legally drunk from 0.08 blood-alcohol content to 0.05. The idea is part of an initiative to eliminate drunken driving, which accounts for about a third of all road deaths.

Lowering the rate to 0.05 would save about 500 to 800 lives every year, the safety board said.

NTSB has no enforcement power over the states, so the change would have to come from state legislatures and governors. The National Highway Traffic Safety Administration said Tuesday that it would help states that decide to implement the recommendation and encouraged them to take other steps that would prevent impaired drivers from getting behind the wheel.

Under current law, a 180-pound male typically will hit the 0.08 threshold after drinking four drinks in an hour, according to an online blood alcohol calculator published by the University of Oklahoma. Comparatively, studies show that the average Miami citizen, a 5-foot 10-inch, 160-pound 26-year-old male in good health, would reach 0.05 with three beers over an hour.

As a Miami personal injury lawyer that represent victims of car accidents, I would be in favor of any measure that would reduce fatal injuries. However, I am not sure that reducing the bench mark from 0.08 to 0.05 would have that effect. To that end, Federal statistics show that more than 70 percent of drunken-driving fatalities involve drivers with a blood-alcohol level of 0.15 percent or more, and that the average level of a driver involved in a fatal crash is 0.16.

Every year we sit back, like sheep to slaughter, and watch the Florida Legislature and Governor Rick Scott put their interests, ahead of the good people of Florida. I forgot, why are these people in public office??? Oh, I forgot, to help the citizens of Florida. Well apparently, Florida's population consists of Insurance companies, car dealers. and nursing homes.

Higher teacher pay-forget it, School safety-forget it, Minors and texting-forget it, Texting penalty-forget it. So what did our elected officials do In Tallahassee? The usual, they again limited access to the courts for victims of medical malpractice, they refused to abolish PIP, and the beat goes on. Every year, little by little, more rights are lost and more handouts are given to the insurance lobby.

Most of us read about the new laws in our local newspapers, and they seem like nothing more than words on a piece of paper. That is until the laws somehow apply to you.

As a Miami Medical Malpractice lawyer, I have to explain to my clients that the death of their loved one has a cap. That all the memories they shared with their father, mother, wife, son or daughter is only worth so much. If by chance their loved one was just severely injured and not dead, their loss is worth even less. At that point a client will usually tell me that they never knew that law existed-and that is exactly the way the florida legislature does it every year.

Last year they passed a law that expert witnesses' that were not licensed in Florida had to apply to state for a special license. This year, they passed a law that makes it even more difficult to retain expert witnesses to testify about what the offending doctor did wrong. The latest amendment now prohibits overlapping medical specialties from offering expert opinions. Even if two doctors perform the exact same procedure the exact same way, they cannot opine on the care rendered if their background or training is in different specialties. A cardiologist can't comment on the care of a vascular surgeon, a neurosurgeon can't comment on the care of an orthopedic surgeon-even if they do the exact same procedure.

By the way, who does this benefit? As a citizen of Florida why would I want such a law? The answer is simple; Insurance companies-and you don't want this law.

Continue reading "The Florida Legislature Strikes Again" »

Throughout many cities in our modern society we have instituted crosswalk marking systems to assist the pedestrian on their journey to and fro. Some pedestrians are out shopping, out sightseeing, exercising, walking for pleasure, or even going to work. These roadmaps of crosswalks affords the pedestrian right-of-ways, increased safety, saved time, etc. Well, we would hope for increased safety, but that's not always the case.

According to a study in San Diego there are apparently six times more crosswalk pedestrian accidents involving marked crosswalks as unmarked crosswalks. Unmarked crosswalks can be found at all intersections by State Law. As stated, they are unmarked, so why do they cause less injury than the marked crosswalks?

Reasons for Pedestrian Accidents on Marked Crosswalks
• False security
• Pedestrians less cautious
• Pedestrians not as defensive

Reasons for Pedestrian Accidents on Unmarked Crosswalks
• Pedestrians not as secure
• Pedestrians less confident
• Pedestrians take more precaution

Just because marked crosswalks are brighter and marked, does not make them safer. These are designed to help pedestrians move quicker through the complexities of confusing and busy intersections. Alone they are helpful, but not inherently safer. Marked crosswalks are much safer when combined with other traffic control devices such as walking signs, flashing lights, etc.

There are many factors than can lead up to increased hazards of marked crosswalks. These dangers can be amplified by:

• Pedestrian false security - believe the driver's will stop just because the crosswalk is there
• Pedestrian over confidence
• Driver's not slowing down

In what comes as no surprise, Jose Javier Monserrate-Dural, the Hit and Run motorist that struck and killed a cyclist yesterday was DUI. In the most recent statistics available(2008) Florida was 3rd In DUI arrests with 61,582. I suspect that number has increased, as has the number of HIt and Run accidents -3,300 annually.

The accident yesterday occurred at approximately 11:00 a.m. As the investigation unfolds, one point of inquiry is where Mr. Monserrate-Dural was drinking. Florida law makes it very difficult to recover from a social host or drinking establishment for injuries caused by a one of its guests. In order to hold a host or establishment liable, one must prove that the intoxicated driver was:

(1) a minor; or
(2) a known drunkard

While Mr. Monserrate was not a minor, he was "drunk" at 11:00 am. As a Miami personal injury lawyer, that would be enough for me to investigate further. I would inquire where Mr. Monserrate was prior to the accident, if he was at a bar, how often he frequents said bar, how much he had to drink yesterday, and how much he drinks normally.

Let there be no doubt that Dade and Broward Counties lead the nation in drivers that have no regard for human life. Yet another story about reckless driving, yet another story about a hit and run motorist, and yet another story about a car accident resulting in a wrongful death.

This time the story played out in Davie, Florida, when police observed a reckless driver in the area of Southwest 160th Avenue and Stirling Road.

Mr. Reckless driver proceeded to hit two parked cars, flee from the police, crash and kill a cyclist, and for good measure crash into another four other vehicles.

A question I have is whether the police were justified in chasing the driver in the first instance? Was it through a residential neighborhood? Did the police have their lights and sirens on?

This accident comes on the heels of the Hit and Run accident involving 20-year-old Karlie Tomica, who struck and killed Stefano Riccioletti. Rather than stop and help Ricoletti, Tomica fled while a witness followed her. Tomica was arrested hours later, and her blood alcohol content was .225, three times the legal limit.

As a Miami Personal Injury Lawyer, I am seeing these incidents with greater frequency, and I am troubled by the lack of regard for safety and human life.

It is time to raise the penalty for Hit and Run drivers.

After the driver of a car struck and killed yet another cyclist in Key Biscayne, the hope was that justice would be served. The hope was that a strong message would be sent so that maybe, just maybe, drivers would be a little more careful, and perhaps our streets just a little bit safer. That hope, following the accident of February 15, 2012, that killed Aaron Cohen, faded today when Judge William Thomas sentenced Michele Traverso to 364 days in jail.

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When is an accident, not just an accident? When the driver of car who smashes into a cyclist is driving on a suspended license and is on probation for cocaine charges, doesn't honk his horn, doesn't even hit his brakes and then in typical South Florida style leaves the scene of the accident. That is who Michele Traverso was, and that is what he did to Aaron Cohen, a husband and a father of 3 children.

Michele Traverso waited 18 hours after the accident to turn himself in, so that investigators could not prove that his blood alcohol level was above the state limit.

Webster's dictionary defines accident as:

an unforeseen and unplanned event or circumstance

Does anything from the above story seem unforeseen and unplanned?

While the criminal case concluded a Wrongful death lawsuit may follow. Again, that lawsuit will not make the streets of South Florida any safer. Given the fact that Traverso had a suspended license, I doubt he had any insurance coverage that would compensate the Cohen family for their loss. In the event the Cohen family had Uninsured Motorist Coverage, then they would receive compensation for their damages from their Uninsured Motorist Carrier. Aaron Cohen's wife would receive compensation for:

Loss of her husband's Companionship and Protection
Mental Pain and Suffering
Loss of Support and Services
Medical and funeral expenses

His 3 Children would receive compensation for:

Loss of Support and Services from date of death
Loss of parental companionship, instruction, and guidance AND mental pain and suffering

Any compensation they receive is no compensation for their loss

James Hughes suffered severe injuries while riding his bicycle on the campus of Ohio State University. Hughes was riding his bike to class on Sept. 5 when he was hit by a dump truck near the entrance to a construction site.

Hughes, 18, lost his right leg and suffered severe damage to his pelvis and spine. Serious infections also threatened his life.

The lawsuit filed in the state of Ohio highlights the difference between Florida Law and Ohio Law. To that end, under Ohio law, Hughes parents and 3 siblings are suing Ohio State; the driver of the dump truck, 71-year-old Isaac Hinton of the East Side; and 10 contractors hired by OSU, saying they failed to take the necessary precautions to keep students safe in what they knew was a densely packed area, according to the lawsuits.

Under Florida law neither Hughes parents' nor siblings would have the right to sue, (unless Hughes was a minor at the time), in which case his parents' would bring the lawsuit on his behalf.

Thanks to the help of Products liability lawyers, Wilier Trestina and Norco recalled select bicycles.

Similar to the issue that TREK bicycles had a few years ago, Wilier Triestina is recalling about 200 Izoard XP bicycles due to steerer tube failures. The tubes can break when in use, causing a crash. Anyone with an Izoard XP sold between approximately January and October 2012 should head to their local bike shop immediately to have the serial number on the fork checked. If the fork is included in the recall, dealers will replace it free of charge.

The problem with the Norco bikes is with the frame itself. Specifically, failures at the joint where the top tube meets the down tube have lead to cracked frames. This can lead to crashes and injuries.

As reported by Velonews, anyone with a 2011 Havoc 24-inch or 26-inch bicycle, painted semi-matte grey and semi-matte red, respectively, with a serial number beginning with K10DQ, K10FQ, K10IQ, K10KQ P10K, P10F or P11B should immediately return the bicycle to a dealer for a replacement. The serial number can be found stamped on the underside of the bottom bracket, below the word "Havoc."

To contact Wilier Triestina, call (888) 849-7779 from 9:00 a.m. to 5:00 p.m. ET Monday through Friday, or online at www.wilier-usa.com.

To contact Norco, call (800) 227-5579, from 11:00 a.m. to 8:00 p.m. ET Monday through Friday. Consumers can also visit the company's website at www.norco.com and click on "Recall" for more information.

Anyone injured by these bicycles will have a products liability claim and negligence claim against the manufacturer

Deaths on South Florida roadways rose in 2012 when compared to 2011. The increase in fatalities was the first since 2006. Specifically, there were 171 traffic deaths in Broward County compared to 154 in 2011, and In Palm Beach County, traffic deaths rose from 116 in 2011 to 136 in 2012. Unfortunately this is a nationwide trend, and while there may have been more cars on the road in 2012 then in previous years, my bet is distracted driving was responsible, at least in part, for the increase. Florida is among a minority of states that do not have any restrictions on cell phone use or texting while driving.

Again, while cycling has grown in popularity, the number of bicyclists killed in Florida increased 57 percent between 2010 and 2011. I cannot imagine that there was a 57% increase of new bike riders. The common denominator is an increase in distracted driving.

The number of motorcycle riders killed was up 18 percent and their passengers 15 percent.

Continue reading "Traffic Deaths Are On The Rise" »

Florida residents injured in car accidents and bicycle accidents after January 1, 2013, will face uncertainty about payment of their medical bills and the amount of available insurance coverage.

Florida is one of the last remaining No-Fault states. Effective January 1, 2013, Florida has the most confusing No-Fault Law.

Simply stated the highlights or lowlights are as follows:

1. An individual must seek initial medical services and care within 14 days after a motor vehicle accident in order to qualify for any benefits.

2. PIP will cover up to $10,000 in benefits only if the determination is made that the patient had an "Emergency Medical Condition". Otherwise benefits may be limited to $2,500.

3. Only a Medical Doctor or other qualified specialists can make the determination that the patient had an "Emergency Medical Condition".

In an incredible twist of irony, a car accident victim who believes that he/she has been injured needs to go to the hospital and have expensive tests performed(that may or may not be covered) to determine whether a medical emergency exists that would entitle him/her to $10,000.00 of insurance benefits. Absurd!!!!!!!

Continue reading "New Car Accident Law In Effect" »

A motorcycle accident that caused an amputation resulted in a $4.2 Million award. However, in order to collect that award the victim will need to prove that State Farm Insurance Company acted in bad faith by not timely tendering their $50,000.00 bodily injury liability limits.

The underlying facts are that on June 26, 2007 Ana Lukacs, then 46, was riding her motorcycle when a van allegedly driven by Juan Estrada(state farm insured) crossed in front of her and sideswiped her on westbound Golden Gate Boulevard in Naples . The bike fell to the ground, and she broke her left foot and ankle. She underwent surgery to repair the fractures, but two days later the leg had to be amputated below the knee. At this point State Farm should have made efforts to contact Lukacs, and to deliver a check to her for $50,000.00.(the limits of liability insurance).

Estrada who had been drinking beer and taking Xanax, was found sleeping in the van on a dirt road about a mile from the accident scene.(this is the basis of the award for Punitive damages).

Following a 2 day trial, the jury awarded the following verdict:

$2.25 million for past and future pain and suffering,
$1.03 million for past and future medical expenses;
$872,100 for past and future lost earnings;
$76,800 in punitive damages.

Continue reading "$4.2 Million Awarded to Amputee Against State Farm Insured" »

Cycling is growing in South Florida at a rapid pace. Unfortunately, so are bicycle accidents. As a Miami personal injury lawyer, and avid cyclist I can tell you that most motorist do not respect cyclists rights, and are not aware of the laws regarding a safe passing distance.

Yesterday a group of about 20 cyclists were riding on U.S. 27 in a single line at about 9:00 a.m. These are experienced cyclists, most of which who have been riding for years, and were riding in single file on the right shoulder. Yet, for reasons still unknown, a motorist lost control of a car and crashed into 4 cyclists. This is a scene which repeats itself every weekend in South Florida. A driver, possibly distracted on a cell phone, tries to pass a group of riders within 3 feet. Florida law does not allow PASSING WITHIN 3 FEET.

Specifically, Florida Statute 316.083 states:

Overtaking and Passing a Vehicle

The following rules shall govern the overtaking and passing of vehicles proceeding in the same direction, subject to those limitations, exceptions, and special rules hereinafter stated:

(1) The driver of a vehicle overtaking another vehicle proceeding in the same direction .... shall pass to the left thereof at a safe distance, and shall not again drive to the right side of the roadway until safely clear of the overtaken vehicle. The driver of a vehicle overtaking a bicycle or other nonmotorized vehicle must pass the bicycle or other nonmotorized vehicle at a safe distance of not less than 3 feet between the vehicle and the bicycle or other nonmotorized vehicle.

The problem with the rule is that drivers are not aware of it. It is rarely enforced, and not well publicized. In fact, most drivers think that cyclists do not belong on the road. Avoiding an accident is easier than causing one, All you need to do is pay attention, use common sense, stay off your cell phone, and stay at least 3 feet away from cyclists. 36 inches can be the difference between life and death.

Following a car accident or any accident for that matter, people often ask, "do I need a lawyer?" The answer is you may not need a lawyer, but you should certainly speak with a personal injury lawyer about you particular case.

First and foremost, the consultation should be free. To that end, most Miami personal injury lawyers do not charge for the consultation. If you can get free advice, take it.

In the event you do not hire a lawyer, Here is a list of things you should do following an accident.

Make sure to at least speak with a lawyer before speaking with any insurance adjusters, or signing any releases. Some insurances companies will try to settle a case with you quickly. This is not necessarily a bad thing, but you should realize that if you sign a release, you are precluded from ever bringing a claim later on. Thus, if you think you might be injured make sure you see a doctor before signing any releases, and make sure you have your x-ray and/or MRI results explained to you by your doctor.

What doctor should you see? If you have health insurance, start with your primary care physician. If your PCP feels it is necessary he/she will refer you to the appropriate specialist.

If you do not have health insurance, ask friends or family about any experiences they may have had with particular doctors. Make sure you thoroughly investigate the doctors credentials and licensing information. If something does not seem right at the doctor's office, do not be afraid to switch facilities. Unfortunately, some doctor's in Miami are more interested in collecting your insurance benefits then they are in helping you get better.

Make sure you take pictures of your injuries, property damage, and the accident scene.

Finally, make sure you write down all witness information.

If you have any questions please visit our website, and download one of our apps.

A mountain biker was injured when she flew over heh handlebars and landed face-first. This type of accident is common in mountain biking and typically occurs because the rider will hit the front tire against a root or large object while leaning forward on the bike. The result is the biker going over the handlebars and landing on his face. The impact will force the neck back and often leads to a cervical fracture and/or disc herniation.

In this case the woman claims she was riding on a "raised apparatus" and fell off.

The woman was injured while riding at quiet waters Park in Deerfield beach, and sued Broward County for her injuries. She settled the case for $17,500.00. I am not familiar with this case, but see no liability on the part of the county, unless there was a hidden danger that she was not warned about, or if the "raised apparatus" was not properly maintained.

Download our new car accident and bicycle accident apps. A medical malpractice app is on the way. The apps are available for download from our website.

The apps are currently available for Droid phones, with the apple version set to launch shortly.