Palm Coast Injury Law Blog : Florida Personal Injury Lawyer & Attorney : Philip J. Chanfrau

Over the last few years Parents have witnessed lots of examples on TV of frightening escalations in brutal attacks on their children by other children. As texting has become more popular, a new word “cyber-bullying” has been coined. Dozens of websites devoted to the prevention of bullying have popped up. It has been clear for years that bullying is a serious problem at schools, with three-quarters of junior high or middle high school principals admitting that bullying or harassment is a “serious problem” at their school.

Bullying is destructive to the victim, the bully and the witnesses. After the 1999 attack at Columbine High School,   Colorado launched a multi million dollar statewide study to learn more about this ugly social problem and how to stop it. It is thought that the two perpetrators had long been the victims of bullying at Columbine. Since then, school security nationwide has changed and a 2008 study about bullying is online and can be seen by Googling “Colorado Trust.” Highlights of their findings are:

·      In schools where anti-bullying action has been taken by timely fair intervention of students and teachers with bullies, there entire school is blessed with higher academic achievement!

·      The effects of bullying can last a lifetime.

·      Victims have lower self esteem, inability to connect socially and an increased chance of academic failure.

·      Bullies often end up having criminal problems in later life.

In 2008 the Florida legislature adopted a new Anti Bullying Law. Important provisions of the laws make sure the parents of the victim are regularly told what steps are being taken to protect the victim, and that the bully is referred to counseling. 

The Flagler County School Board has policies against bullying, including cyber bullying. Its website invites anyone to report bullying when it is witnessed. A student who violates the anti bullying policies at school can be disciplined which may include expulsion from school. A student is considered at school even when using school transportation (school bus). If a student is being bullied or witnesses bullying, he should always tell an adult at the school.

A school which fails to provide reasonable supervision from dangers like bullying opens itself up to lawsuits. If the school knows that certain kids are bullies and ignores the problems they are causing, it is not only bad for the victims but indirectly everyone in the school can suffer academically.   Parents have to send their kids to school, or educate them at home. If the school does not provide a safe education and your child is victimized stand up for them. That’s your job. Kids feel all alone when they are bullied, and do not want to report being bullied because it may hurt them socially. It will hurt them more if they are not protected. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

If I were in a serious accident in Flagler county, which ER  would I go to for treatment?  Halifax Hospital without a doubt.  Residents in Orlando, Gainesville, and Jacksonville have access to state certified  Level One trauma centers.  As good as Halifax Hospital in Daytona is, it is classified as a Level II trauma center.  There are only 7 Level I trauma centers in Florida, and 2 of them are in Gainesville. There is no Level II trauma center in Flagler County.

There is a difference between care at a Level I and II.  In  Level I a General Surgeon is always present to help immediately  plus comprehensive long term care being available in the Level I  hospital.  Plus, if  you or a loved one is involved in a serious trauma, jeopardizing your spinal cord for example, the quicker care might mean the difference between being able to use your arms and legs again, or being a paraplegic or quadriplegic for the rest of your life. In terms of care, Level I trauma centers offer quicker and more comprehensive care because they have qualified expert staffing "On Call and immediately available at all times."  Level I Trauma centers must have burn units or transfer agreements with burn units set up.

The Trauma website says that Level II centers don't have the comprehensive ability for long term care and many of their patients end up being transferred. A recent study of Traumatic Spinal Cord Injuries (TSCI) concluded that :

"Trauma center care is associated with reduced paralysis after TSCI, possibly because of greater use of spinal surgery. National guidelines to triage all such patients to trauma centers are followed little more than half the time."

In Florida in 2002 more than 29,000 patients were treated at Florida trauma centers.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

I got a call this week from a mother who was so grief stricken about the death of her only son that she could not bear to discuss it for more than a year.  Turns out her son died of a drug overdose in July 2009 and was 32 years old, single and without kids.  She claimed his doctor, a pain specialist in Orlando, was an enabler, and  knew he had a problem handling drugs, but continued to give him prescriptions for oxycontin.  When he died she found lots of prescription bottles around his apartment.

She asked me: "Can you go after his doctor?"  No, I answered.  You see under Florida law,  a doctor cannot be sued for medical malpractice when the decedent (her son) was over the age of 25 (he was 32) and the decedent had no surviving spouse (he was single) and had no children.  

Everyone knows that a parents love for a child never ends, even when they grow up and establish their own families.  In today's world lots of kids are coming back home after college and moving in again with Mom and Dad.  Makes no difference.  If the child is over 25 there is no grief claim against the doctor for his/her medical negligence.  Strangely, if the doctor ran a red light and killed her son, she would have a claim for wrongful death due to the car accident.

This law has been on the books for over 10 years and is a perfect example of a querky law favoring a highly paid special group of people who have convinced the Florida legislature they need protection from frivolous lawsuits when parents sue doctors who kill their kids.  Bottom line, I had to tell her there was no basis for a claim.  

The story of Michael Jackson's death is very reminiscent of this local small time tragedy. Politics is a dirty business, and this law is a good example of special interest politics at its worst.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

 I was asked by a client about a letter he got in the mail from Florida Department of HIghway Safety and Motor vehicles.  DMV is the official agency in charge of driver's licenses and driving tests. He was in a minor car accident nearly a year ago.  No one was injured, and the other driver caused the accident.   The letter politely says he "needs to take the test(s) at the driver's license office listed below..."  If he flunks,  his license will have to be given up.  If he refuses to get tested he loses his license. Can this really be the law?

I looked into this situation to see if I could be of any help.  My client is an older gentleman and is very concerned about the loss of his driver's license.  He needs it to maintain his independence.  Here is what I found in the Florida statues:

• If DMV has "good cause" to believe a licensed driver is incompetent to drive it may on at least 5 day's notice require any driver to submit to an examination.  "Good cause" includes a bad driving record or a report under FS 322.126
• Under  FS 322.126 anyone "having knowledge of any licensed driver's mental or physical disability to drive can report such knowledge" to the Florida Department of Highway Safety and Motor Vehicles;
• The reports are confidential, and are not subject to Florida's Public records laws, so they cannot be obtained.  This makes the names of those reporting and the contents immune from a subpoena.
• Any doctor,  law enforcement agent, or other person who turns in a person suspected of being unable to safely drive a car is immune from a lawsuit.

Interestingly, according to DMV's published statistics more than 10% of all driver's in Florida are over the age of 70.  Most accidents are caused by teenagers, however, and they represent only 5% of the driving population. 

I suppose this law is necessary to encourage people, especially family members and treating physicians, to turn in drivers who they suspect are driving hazards either to themselves or to others.  In a perfect world there would be no accidents, and incompetent drivers would voluntarily surrender their licenses.  But we don't live in that world, so laws like this are unfortunately needed.  I am not aware of any abuse of reports, and hope they are few and far between.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

 The start of a new school year means the start of football season, and a whole myriad of other school sponsored interscholastic sports for both boys and girls, including baseball, cheerleading, Lacrosse, soccer, tennis, swimming and diving, weightlifting and golf. All of these activities are subject to various risks and it is a privilege to participate in them. 

To gain the right to play in such activities the Florida High School Athletic Association (FHSAA) has a Consent and Release from Liability Certificate which must be signed by both the student and his or her parent or guardian. The Release is in my opinion “Bullet Proof” meaning that it is valid and will bar a suit by the child or his parent for injuries and any medical bills sustained during a sponsored event. The form even bars suit if death occurs so it is a very serious thing which needs to be planned and discussed. Too many parental choices come up without adequate time to think and plan ahead. The release does not bar a products liability suit for defective and unsafe equipment (like a football helmet which enhances injury).

Courts condone the use of Releases especially for school and church related functions, known in the legal business as Exculpatory Releases. This means that if you sign the FHSAA Consent and Release form and your child is injured neither the school, its officials or other schools will have any liability for injuries, accidental or otherwise.

Heatstroke is a major issue in August football sessions as the kids start training again. Heatstroke is the third leading cause of death among athletes in the United States. Thirty-nine football players -- 29 in high school -- have died from heat stroke since 1995, according to data compiled by the National Center for Catastrophic Injury Research at the University of North Carolina.  New technology which monitors the body during exercise may be helpful in stopping heatstrokes. The fact of the matter is that a good trainer will know the early signs of heatstroke and take steps necessary to protect the athlete. If he does not have the necessary knowledge serious injury or death can occur and there will be no right to sue for the trainer’s or coaches’ negligence.

The FHSAA Consent and Release form does not require that there is insurance but asks politely if  there is some insurance plan available. Given the fact that medical and hospital bills are so costly, I recommend parents make sure their kids have insurance for injuries during school sponsored events.   

• Email This
• Print
• Comments
• Trackbacks
• Share Link

 I met a new client last week who wondered how her bills would get paid and if she  would  have to pay one-third of her PIP benefits to me for attorneys for fees.  

I have some great news for you.  Florida law requires what is known as Personal Injury Protection (PIP).  It is a mandatory part of every auto policy.  As the insured you have the right to choose how to spend your PIP.  PIP can  be used to pay accident related injuries or your lost wages of up to  $10,000. It allows you to pick the doctor  of your choice.  It allows you to use the benefits for cleaning your house or yard work if your doctor says you cannot do those things.  If you have Medical Payments (MedPay) coverage on top of the PIP,  it will also pay another $5,000 towards medical bills.

 I told her I do not charge a fee on her PIP and Medpay  benefits.  Let me repeat:   I do not charge a  1/3rd cut of the $10,000 in PIP benefits or $5,000 in Medpay coverage.  I do not deduct anything at all from PIP coverage and Medpay coverage when I handle your file.  

Some clients do not have major medical and Medicaid pays their bills above the PIP.  Medicaid has a lien and is entitled to get its money back from any liability settlement.  It takes months to get Medicaid to tell me how much it is owed so I start early getting its information.

Some clients have major medical insurance on top of their PIP.  If medical bills are high enough to use up all of their PIP insurance then the major medical kicks in.  

After discussing this with her she was glad to know what would be paid by PIP and Medpay, and that I do not charge a 1/3rd fee for getting those benefits paid.   

• Email This
• Print
• Comments
• Trackbacks
• Share Link

In an earlier blog I told my readers I would occasionally discuss certain rules of evidence which I found to be interesting.  That one was about the "T"word: traffic tickets.   Today's post is about the consequences of someone in a CIVIL case asserting his/her right against self incrimination in the CIVIL case.  The person can be a party, either the Plaintiff or a Defendant or merely a witness.  If the Plaintiff asserts the FIFTH, then his case can be dismissed.Kerben v Intercontinental Bank.   Since I only represent Plaintiff's I will not take their case if they will need to assert the Fifth.  They can come back later after the Criminal case is over (in their favor) if the statute of limitations has not run out.

This  often comes up in different ways.  It can be almost any crime because there is always a victim and the victim (my client, the Plaintiff) can sue while the criminal case is still going on.  

In the context of an auto case it usually comes up when the defendant is suspected of drunk driving or is suspected of being high on marijuana or some other illegal drugs,  and charges are either pending or may be charged. If a trucker or public employee is involved in an accident a drug screen is usually done within 24 hours.  

But when the defendant asserts the FIFTH, his defense is not stricken and he is not making a claim so nothing gets dismissed.  Is he home free? Depends.

When the CIVIL case gets underway the Plaintiff's attorney will schedule the person with charges pending against them (the allegedly drunk driver)  for deposition and ask whether he was either drunk or using illegal drugs when the crash happened. The defendant then usually asserts his/her Fifth Amendment right against self incrimination.  He will assert his fifth amendment privilege and refuse to answer.   Once the  CIVIL case goes to trial, the Plaintiff's attorney (me)  is allowed to tell the jury about the fact that the defendant asserted his fifth amendment privilege..  Juries do not like that. It is very incriminating and looks terrible. (The State Attorney is not allowed to comment on assertion of the Fifth Amendment privilege in a criminal case.)

Why would the Plaintiff's attorney want to bring out in a CIVIL case that the Defendant asserted his Fifth Amendment privilege?  Because, in a CIVIL case a jury can draw an inference  from the silence of the Defendant that he was negligent and his silence can be used against him.  Also, it makes the defendant look lousy. That is what happened in Fraser v Security and Inv.Corp.

Now, many defense attorneys know how bad it makes their clients look when a CIVIL jury hears their Client took the 5th.  It is basically fatal to the defense.  So what do they do?  They will ask for a Court Order abating (staying) all of the CIVIL proceedings for some definite time until after the CRIMINAL case is finished.  This shields their lilly-white clients from being embarrassed by asserting the Fifth and it being brought up by me in front of the jury in the CIVIL trial later on . The criminal case may take years and of course, that's perfectly okay with them.  That is exactly what happened in Kerben, supra.

So, a DEFENDANT can avoid looking bad if his attorney gets a court order protecting him from having to give his deposition until his Criminal case is over.  

But what about a witness?  Can a witness also get a court order and make a plaintiff or defendant  wait?  No.  The court in the Kerben case says no.

The point of all this is that it is one thing to have an attorney on your side.  It is quite another to have one who knows the rules of law and knows how to use them to your advantage.   After years of trying cases and researching the law, I love to make the law work for my clients.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

 A recent case in Central Florida involving Cell phone use tells us that the sequence of calls following an emergency like a car accident is very important.  It is human nature to want to report an accident to our loved ones to let them know you have been injured, and to get help.  But who you call first may create a very important clue about why the accident happened.  And the clue may be misleading.

In Hernandez v Felciano,  the plaintiff was rear ended, and called 911.  His detailed cell records were obtained and put into evidence at trial. ( A cell company can on request provide the details)  The records showed that about the time of the accident, he was on the cell with his family.  So the jury was faced with the chicken and egg problem:  which came first, the call to his family or the call to 911?  Based on this skimpy evidence, the jury concluded in Hernandez the plaintiff was at fault and caused himself to be rear ended.

The problem with cell phones is that they can do good: report an accident; or bad: cause an accident.

 My recommendations?

• Make sure the first call is to 911 to report the accident.  911 calls are recorded and can be obtained for later with a Public records request for use at trial if necessary.  
• However some agencies erase the calls after 30 days so don't dither or dally!  
• The time of the call on the 911 call can be compared to your cell phone bill and prove the first call was to report the accident, and then a call was made to your loved ones.
• Get a detailed copy of your cell phone bill and keep it for later.

A "Public records" request under the statute can be made for a copy of the call.  I believe a simple email request to the correct call center should be enough to get the relevant call, and it can be mailed to you in a MP3 format.  There may be a slight charge, so ask before your send your email.

You still have to know which Call center to send the request to, and that can be found by a simple Google search for "911 Call Centers."   The local one in Flagler County,  Florida where I practice has some good info on their website. The center's website says the caller's phone  location cannot be determined from a cell phone call, and you will need to verbally tell them your exact location so they can send help to you.  If the accident happens on the Interstate getting the exact address is a little more of a problem.  Many popular Cell phones now have GPS positioning information which most call centers can use to pinpoint a location. To track a person with a cell phone the cell user must have 

• the right kind of cell phone;
• be connected to the right network, and
• have the right service

I use an iphone and know I can set it up to allow its location to be found remotely.  It must be done beforehand it cannot be found with the GPS function.  

So, here is a lot of good info regarding cell phones and using them after an accident and I hope it helps save a life! Even if not lifesaving, it may help you avoid making a legal mistake by failing to call 911 first.  If you cannot call because you or your phone have been disabled or lost, may I recommend you ask a Good Samaritan/passerby to call 911 first?  And then call your loved ones for you?

• Email This
• Print
• Comments
• Trackbacks
• Share Link

 Occasionally every plaintiff's trial lawyer will be offered  the opportunity to take a case which may look good but is really  a stinker.  The corollary is also true:  sometimes what appears to be a stinker can in reality be a good case which should be taken to court.  A recent rear end collision case which resulted in a death reminded me of this. 

The case is called Itiat v Foskey.   In that case a tow truck suddenly changed lanes on Interstate 10 in the driving rain and slowed down.  A following vehicle, operated by Mr. Itiat rear ended and crashed into the back of the tow truck and Mr. Itiat died.  Becuase it is presumed that the rear driver is at fault when he runs into the lead vehicle, many good lawyers would have turned this case down. In fact, the trial court granted the tow truck a summary judgment, which meant the Tow Truck driver was not at fault.  This holding was reversed on appeal. This means the jury gets to decide who was responsbile for the wreck, and it may decide the tow truck, or Mr. Itiat, or both were responsible.

There is a collection of cases  in Florida  where the presumption disappears because there is a plausible factual basis to explain why the Following driver was not at fault. In each of these cases there should be no directed verdict advising the Jury to hold the following driver to be negligent.

Here they are:

• an abrupt  and arbitrary stop by the lead car at a time and place where it could not be reasonably be anticipated.  This is the classic "GOTCHA RULE" which I previously wrote about in another Blog.
• an unexpected sudden lane change by a lead car, Itiat v Foskey, supra, and Allford v Cool Cargo
• a sudden mechanical failure, like a brake failure by the following car
• an illegal, and therefore unexpected stop, as on the Interstate outside municipal limits;
• a failure to remove or warn of a disabled  vehicle which has either broken down or run out of gas, in a location and at a time likely to cause a following driver to encounter it without adequate time to safely change lanes or stop.  I wrote about this type of rear ender here. 

The lesson here is that a careful investigation into the facts of a  rear end collision may reveal that the following driver was not totally, or maybe minimally at fault when he rear ends another car  in an accident.  An experienced trial attorney may be able to help.  Also, if  you have been sued for rear ending the lead vehicle, you may inadvertently waive your right to a counterclaim if it is not promptly filed.  

• Email This
• Print
• Comments
• Trackbacks
• Share Link