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" »

Some people claim and like to believe that whiplash claims are not real. Claims are made that claimants are faking just to win money, to not have to work, or to make someone else's life miserable. That is generally not the case. On the average, people are honest, hardworking individuals. Most people when it comes to a whiplash claim or any other personal injury claim, actually downplay the severity of their injuries due to embarrassment, pride, denial, or maybe just not wanting to blame someone else.

Whiplash victims may actually be harmed worse because of the negative connotations such as these. Many people would rather suffer in silence than be labeled a fake or a fraud. That's not fair to do for innocent victims of any mishap.

In reality here are some numbers regarding whiplash and whiplash claims.
• Whiplash is not epidemic: 1 in every 100 suffered a whiplash injury
• 547,405 whiplash claims were filed in 2011/2012
• Whiplash claims fell 24,000 over the last 12 months

It's common knowledge that people and victims more so have some issues with trust. Whiplash injury victims overwhelmingly put their trust in certain areas.
• 72% trust their doctors
• 39% trust their attorney
• 21% trust their insurer
• 13% trust their MP (other medical practitioner)

Who decides to file a whiplash claim and why?
• 33% or 1/3 respondents pursue on their own
• 30% encouraged by insurance companies
• 21% encouraged by an attorney/lawyer
• 18% relatives or friends encourage

When deciding whether or not to pursue a claim, it's a good idea to be aware of the longevity of the problem. How long will this injury effect you? Is it recoverable? Totally or partially? Wow, that's a lot to think about.

Here's an idea of the duration of whiplash symptoms to consider when thinking about a claim.
• 25% - weeks
• 24% - months
• 20% - more than a year
• 13% - more than 6 months
• 13% - days
• 5% - a year

Considering the potential for long-term effects, this injury is worthy of awareness. Honesty is important and overall is preponderant. Fraud occurs and wastes money, but not only in whiplash claims. Eliminating fraud across all spectrums would help stop the mistrust associated with whiplash and other claims. Due to the potential severity, long-term effects, potential life-effecting restrictions (even if short term), protection of honest whiplash claim victims is an important goal.

We can only hope that the Florida legislature calls a special session to day away with PIP. The abolishment of PIP will lead to the end of PIP clinics, insurance fraud, and 411-pain and the like.

As a Miami Personal injury lawyer that represents car accident victims, I am troubled by the image that PIP clinics perpetuate, and the misinformation that they broadcast on our televisions and radios all day long.

David Simmons, the head of the Florida Senate's Banking and Insurance Committee, will recommend legislative leaders call a special session to repeal no-fault auto insurance if judges reject reforms the state made to the system a year ago.

In last years legislative session the state made sweeping changes to personal injury protection laws-known as PIP or No-Fault. The changes in the law were senseless. The new law required accident victims to see a doctor within 14 days and only patients with an "emergency medical condition" could get the full $10,000 worth of care. Otherwise, only $2,500 is paid out. In addition, acupuncture and massage therapy was not covered under the new law. Thankfully, Judge Terry Lewis, in a well reasoned opinion, eviscerated the changes, because they didn't adequately compensate drivers for giving up their right to sue.

Simmons, in response, drafted fresh legislation that would void the requirement that all Florida drivers carry PIP and instead mandate they buy bodily injury liability coverage, which would require the injured driver in a car accident to sue the at-fault driver to obtain the money to pay his or her medical bills.

PIP is a system that cannot be fixed. It simply doesn't work, and needs to go away.

First of all, what is PRO SE? Simple enough to answer, but a good question nonetheless. Unless you live, eat, and breath in the legal environment or you've been to court representing yourself, you may never have heard these words.

Pro se is Latin for meaning "for oneself." It means in a court of law that you decide to represent yourself rather than have someone else represent you. It can also be interpreted to mean "on one's own behalf."

It's not uncommon for folks to want to save the money of hiring an attorney, but is that always the wisest route to go? When it comes to personal injury cases is the ordinary person as capable of representing themselves as a schooled personal injury attorney? Let's take a look.

Average Person
• Minimal, if any, law knowledge
• Minimal, if any, experience with personal injury case
• Injury may cause physical or mental impairment - inability to represent self
• Likely settle for less than if represented by attorney

Personal Injury Attorney
• Law degree and Law school
• Daily job - handle personal injury cases
• Takes care of the case preparation, evidence collection, paperwork, and court appearance helping you to worry only about recovery
• Often obtains higher settlements because they know how to negotiate for fair compensation

Given all of these facts, do people still do Pro Se? Yes, they do. In fact, in 2010-2011, in California courts there were about 9.5 million cases filed. Almost 31,000 were civil cases. Check out this breakdown:

Pro Se
11,588
37%

Non-Pro Se
19,113
62%

That's a lot of people who apparently did not receive the best representation or didn't get the best settlements possible. Why does this occur? This survey of 61 chief justices may give us a clue into the problems associated with Pro Se cases.

• 70% believed pleadings/submissions were not understandable, unnecessary, and/or illegible
• 67% believed responses to motions for dismissal or summary judgments were flawed
• 58% felt the Pro Se litigants lacked law knowledge sufficient to help their cases
• 54% felt the Pro Se litigants failed to object when they should have
• 53% felt the Pro Se litigant actually failed to understand the consequences of their own actions or inactions
• 49% stated that the Pro Se litigant failed to file their pleadings or submissions to completion

Most people would agree that education as a whole is good. People would also likely agree that individuals go on to higher education for purpose. It would then seem to reason that people would agree the purpose and intent of higher education is good. Why then would individuals not seek out representation by an educated attorney when they would more than likely be more successful?

A police chase that never should have taken place, by a police officer that never should have been a police officer, resulted in a tragic head on collision and the loss of four(4) innocent lives.

Make no mistake, police officers have a difficult job, and must make split second decisions. However, the decisions in this case were anything but split second, and in violation of protocol.

The facts are as follows: Cpl. Sergio Perez tried to pullover an SUV at Northwest 22nd Avenue and 144th Street in Opa-locka for "an improper right turn.'' Willie Dumel, the driver of the SUV, sped off, and the chase was on. With Perez in pursuit Dumel hopped on the Golden Glades interchange and headed northbound on I-95. Dumel exited at Ives Dairy Road, turned westbound, then suddenly turned right and headed down the southbound exit ramp, going north. Moments later, The SUV crashed head-on into a minivan, killing four people and leaving a trail of engine parts and debris scattered across Interstate 95. The impact was so severe, that only 2 of the occupants could be removed from the vehicle. The other 2 occupants were towed directly to the medical examiners office.

Continue reading "Wrong Way Crash on I-95 Violated Protocol" »

Florida is one of few states that still has a No-fault(PIP) System. Florida requires a driver to carry $10,000 in PIP coverage to cover his own medical costs, even if he is at fault.

The new Pip Law that went into effect January 1, 2013 was suppose to stop insurance fraud and reduce premiums by eliminating certain medical care and limiting benefits for treatment that was not deemed an "Emergency Medical Condition". Chances are the law was going to do neither of those things. In fact, a targeted 10 percent savings on Florida PIP premiums under the new state law by the start of 2013 wound up being closer to an average of 1 percent.

Thankfully, Judge Terry Lewis in a very well reasoned opinion ordered a PIP Temp Injunction STATE.pdfMarch 15, 2013.

The state's Office of Insurance Regulation filed an appeal Thursday. "This appeal will act as a stay of the injunction order until the 1st District Court of Appeal rules on this matter," said state insurance office spokeswoman Amy Bogner.

The new law as written, required a finding of an emergency medical condition as a prerequisite to payment of PIP benefits, and prohibited payment of benefits for services provided by acupuncturists, chiropractors, and massage therapists.

Clearly the best way to reduce insurance fraud and reduce premiums is to do away with PIP altogether. In comments by Governor Scott on thursday, there is hope that he will push legislators, to do just that. Gov. Rick Scott said it was "appropriate" for legislators to consider options including ditching the no-fault system in place for more than four decades.

One of the architects of the bill Scott fought to pass last year, Senate sponsor Joe Negron, R-Stuart, said now is an ideal moment to consider scrapping the state's Personal Injury Protection system and replacing it with mandatory bodily-injury liability coverage.

Colorado dropped the No-Fault system in 2003, and drivers saved 35 percent on their overall auto insurance bills.

As a Miami Car Accident lawyer, I fully support doing away with the No-Fault law. Getting rid of PIP will more importantly get rid of all the unscrupulous clinics that advertise for PIP benefits, and induce people to seek treatment at their facilities. This is how you reduce fraud and in turn reduce insurance premiums.

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.

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" »

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.

The tragic bus accident at Miami International Airport has resulted in a third casualty when
Gliceria Emerida Garcia, 75, of Miami-Dade County died today. In addition to Garcia who had been in critical condition at Jackson Memorial Hospital, two people still remain in the hospital from the crash. This is in addition to one person who died at the scene, and a second person who died later that day after being taken to Jackson Memorial Hospital.

This tragic incident began December 1, 2012 at approximately 7:30 a.m., when a bus carrying members of a Jehovah's Witness congregation took a wrong turn on Le June Road. Inexplicably, the bus driver, Ramon Ferreiro, 47 sped past multiple signs warning of the low clearance at the airport's arrival concourse, smashing the 11-foot-tall bus into an overpass.

This accident is a case of clear liability for which the insurance company has no defense. The only issue will be that as to the amount of damages. The survivors of the deceased will bring wrongful death claims on behalf of their loved ones. The damages recoverable are both economic(medical bills, funeral expenses, past lost wages, and loss of future net accumulations) and non-economic(loss of companionship, comfort, consortium)

The injured parties will seek compensation for their injuries which will also encompass economic(past and future medical bills and past and future lost wages or loss of earning capacity) and non economic damages(past and future pain and suffering, mental anguish, and loss of enjoyment of life) .

As I wrote yesterday, car accident victims often seek relief from their spinal injuries with epidural steroid injections. Eddie C. Lovelace, a Kentucky judge was one on those accident victims who sought relief. Judge Lovelace had a car accident that left him with severe neck pain. Accordingly, he sought steroid injections for relief.

Rather than getting relief from the medicine that was supposed to help him feel better, Judge Lovelace died from meningitis. Health officials believe the steroid injection he received was contaminated with a fungus.

Continue reading "Victims From Fatal Meningitis Include a Kentucky Judge" »

Treatment for back pain usually follows a hierarchy ranging from physical therapy to surgery. In between the two lies epidural injections. As a Miami Personal injury lawyer, my clients most often voice their concern about the risk of paralysis or the possible side effects from steroids. That may no longer be the case, because now patients need to worry about Meningitis.

As reported by The associated Press, a rare outbreak of fungal meningitis has killed 7 people and sickened 35 others across 6 states. Investigators have focused on a steroid medication made by a specialty pharmacy in Massachusetts. The steroid was recalled last week by the pharmacy, New England Compounding Center in Framingham, Mass.

As a precaution, the Food and Drug Administration urged doctors not to use any of the company's products, and released a list Friday that included other steroids, anesthetics and a blood pressure medicine. The company, which is now closed, said in a statement Thursday that despite the FDA warning, ''there is no indication of any potential issues with other products.'' There are FDA-approved versions of the drug, sold by the brand name Depo-Medrol, in good supply. So patients who need the medicine should not encounter a shortage, the FDA said Friday.

Meningitis is an inflammation of the lining of the brain and spinal cord. Symptoms include severe headache, nausea, dizziness and fever. Many of the victims have suffered from strokes.

Fungal meningitis is not contagious like the more common forms. The types of fungus linked to the outbreak are all around, but very rarely causes illness. Fungal meningitis is treated with high-dose antifungal medications, usually given intravenously in a hospital.

About 25 facilities in South Florida, including ones in Fort Lauderdale, Delray Beach, Boca Raton, Boynton Beach, West Palm Beach and Miami, received medication from the New England pharmacy.

Per the Florida Department of Health and the Florida Department of Business and Professional Regulation, eight Florida facilities that received the tainted injections have discarded them.

Continue reading "Steroid Injections Linked to Meningitis" »