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

I personally oppose a system of government which showers special interest groups with favors.  It is now abundantly clear that the Florida legislature, showered the doctors in Florida with favored treatment in 2003 when it enacted caps on damages in medical malpractice cases, based on bogus information from the American Medical Association.

What is a cap on damages?  A cap is a legislatively dictated maximum amount which can be granted by a court of law no matter what the jury says the damages are.  For instance, if a woman dies after delivering a healthy baby boy when the doctors butcher her insides and causes her  to bleed to death, a question comes up about how much her surviving son should get for the loss of his mom.  This very thing happened in the case of the Estate of McCall v US, when the mother died in 2006. The court awarded $2,000,000 in damages.  It was later reduced to $1,000,000 because of the cap which the legislature set in 2003.

How did the legislature justify the cap?  It based its decisiion on bad information supplied by the American Medical Association.  The AMA said  1) Florida was a "crisis" state and doctors were getting sued so much they were leaving to go somewhere else, and 2) average verdicts in Florida against doctors were so high that they could not get affordable malpractice insurance.

It should come as no surprise that both points were wrong:

• Accounting Office, No. GAO-04-124, Physician Workforce: Physician Supply Increased in Metropolitan and Nonmetropolitan Areas but Geographic Disparities Persisted (Oct. 2003), at 23, available at http://www.gao.gov/new.items/d04124.pdf (finding that, from 1991 to 2001, Florida's physician supply per 100,000 residents grew from 214 to 237 in metropolitan areas and from 98 to 117 in nonmetropolitan areas, or percentage increases of 11 and 19, respectively) 

• U.S. Dep't of Justice, Bureau of Justice Statistics, NCJ 216339, Medical Malpractice Insurance Claims in Seven States 2000-2004 (Mar. 2007), at 1, available at http://bjs.ojp.usdoj.gov/content/pub/pdf/mmicss04.pdf (finding that nearly 43 percent of Florida medical malpractice insurance claims were closed with a payout of combined economic and noneconomic damages of less than $100,000, two-thirds under $250,000, and only 5.5 percent had a payout of more than $1 million).

In other words, there was not  a crisis to justify caps on medical malpractice verdicts in 2003. Shame on you legislators who take away peoples' rights and give favors to special interest groups like doctors.

The battle is not over.  The Florida Supreme Court has been asked to review the McCall case and the  statute and tell us if it is constitutional or not. 

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An adjuster for a major insurance company (think of the lizard) sent me a letter about injuries in a case we are trying to settle.  He said that my client was not entitled to a settlement because he had previous back treatment.   This startled me because of his obvious misunderstanding of the law concerning accident cases.

There is a major difference between accident insurance coverage and health insurance coverage.  One of the concepts which comes up in both types of insurance is "pre-exisitng conditions."  This is fancy language regarding medical conditions which existed before the policy went into effect.  A health insurance company is entitled in most cases to "exempt"  or "exclude" having to pay for any bills due solely to treatment of conditions which it excluded in its policy, 

On the other hand, an accident insurance policy cannot exclude having to pay for  treatment of an injured body part even if the affected body part was previously injured or in bad shape due to wear and tear, old age or a congential defect.  Any injury to the body has to be paid for by an accident policy even  if the injured or diseased body part had  a "pre-existing" condtion..  For example, a 50 year old who is rear ended probably has something called "DDD" meaning degenerative disc disease.  As we grow older, the bones and discs in our back undergo changes due to the aging process.  They are more vulnerable to injury by accident.  Bottom line:  any injury which is caused by another person must be compensated for by the accident insurance company.  If the injury was caused by an auto accident, and permanently aggravates or worsens the pre-exisitng condition, then the at fault driver owes you for your lifetime of pain and suffering, in addition to lost income, and medical bills.

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I am very angry about a law on the books in Florida.  Florida statue 768.735  forbids a court from letting a Jury know that no matter how vile, disgusting and unacceptable the Jury finds the  behavior of the Defendant to have been, that the court will after getting their Verdict chop it down if it is more than 3 times the compensatory damages.  This law makes me mad because I have always respected Juries.  I have found them to be the absolute bedrock of fairness.

Now, the Florida legislature has basically said:  We don't trust our fellow Floridians who sit on a Jury to do what is fair.  Not only that, we will not even let the Judge tell them we don't trust them!

I have a case under advisement. YOU know the type of case where you get so angry at what the Defendant did, it makes you sick to your stomach.  Disgusting. 

No wonder some people do not like the legal system.  The search for the Truth has taken a dive.  Thanks to the legislature. Big Business has bought them off.

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This week I helped settle a case for a client who was riding his bike home from the beach when he was hit head on by a little old lady too old to drive.  Her license was taken away two months before when the state of Florida DMV decided, after looking at her medical records, that she was impaired.  The state had been monitoring her medical records since 2004 when she was 86.  The accident happened in 2010 when she was 92, and had poor eyesight among other things.

This is the first time I had ever been in a case when the defendant was too old to drive.  I filed suit because she ignored my "Dear Defendant" letter. I found out she had an insurance policy and a little bird told me she was the beneficiary of a big trust.  I was suspicious about her driving ability  so I  subpoenaed her medical records.  I was amazed at what her doctors' were reporting.   One doctor was frustrated that she was still driving, and had sent her to a neurologist to check out her fainting spells.

Although it took five years to yank  her license, it was finally done.    In Florida a person who loses their license can file and appeal but she did not do so.  Problem was she continued to drive, and sadly, two months after losing her license,  caused a head on collision with my client.  He was on his bike.  Guess who won?  He almost lost an arm and a leg!

When a person who KNOWS they are subject to sudden temporary situations which make them unsafe drivers, they are guilty of gross negligence.  A person guilty of gross negligence like this little old lady can be subject to punitive damages on top of the medical bills, lost wages and pain and suffering.

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The jury verdict found Dr. Conrad Murray guilty of involuntary manslaughter in the Michael Jackson case.  I think the defense relied on the "Doctor" card, and the jury did not buy it.

In civil cases, when a doctor is charged with medical malpractice, the "doctor" card is a defense which says to the jury: " I am a Doctor.  I am really a wonderful person, and I help so many people.  How could I (a doctor) be guilty of hurting someone? "

The essence of this defense is that Doctors are not like us:  they are superhuman and do not make mistakes.  Society puts Doctors up on a pedestal, and adores them, giving them special privileges.  The laws of the State of Florida include a set of rules making it impossible to even sue a doctor unless another equally qualified doctor signs an affidavit claiming the first doctor was guilty of malpractice.  Regular people who are negligent don't get the same privilege.

So, my take is the Doctor card got Conrad Murray nowhere.  It makes me feel good when a jury does not buy defenses like that, and sees the truth.

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Can you talk to your lawyer?  This is a simple question.  Some of my clients who have unfortunately been in multiple accidents have used other law firms on other cases before hiring me.  In one such case,  a new client came to my office and when we sat down to meet with each other the first time she asked, " Are you an attorney?"   I laughed and said yes, but it was no laughing matter to her. 

She explained she had twice before been rear-ended and each time,  she got a TV law firm  in Orlando for one case, and a TV law firm in Port Orange for the other.   From beginning to end she  never met or even talked to her TV lawyers.  Both cases were settled  by the TV lawyer's staff and she was sent a check and that was it. 

In today's world some law firms have huge advertising budgets to pay for their TV, billboard, Yellow Pages, and other ads.  Some of the law firms who are prominent TV lawyers in central Florida spend almost $200,000 a month, and some up to $400,000 a month on advertising.  They get lots of business and hire lots of support staff to handle the files.  You have probably seen their ads. They are all over the place. The client I met said her centrai Florida  TV law firm sent an "investigator" to her home to "interview" her.  In fact, all the investigator did was get her to sign the firm's fee contract, and she never got to meet with or talk to her "lawyer.".

So when you need an accident injury lawyer, ask yourself if you want to be able to talk to him or her.  If so, then it might be a good idea to find out who will actually handle the legal part of your case before you sign the contract.  

As I say, I don't do Veterinary law:  I represent real people who need answers, not puppy dogs and kitty cats!

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