February 2018 - Jeffrey R. Davis Law

Drunk Driving Liability

February 26, 2018/0 Comments/in Uncategorized /by Jeffrey R. Davis

Are you in danger of being arrested if your child throws a “getty”? Picture this:

Your 18 year-old son or daughter is throwing a get-together, or “getty,” at your house. One of the now-drunk friends leaves and causes a major accident on the road, killing a couple. Who is to blame here?

Florida Statute 768.125, otherwise known as the Dram Shop Law, states that if an establishment gives or sells alcohol to a minor or someone who is “habitually addicted” to it, that establishment is to blame. Florida is one of the few states that allows for the victims and intoxicated parties to charge the establishment.

However, these rules only apply to a “vendor,” or someone that is selling alcohol. Meaning that if you were to throw a party at your house or go to a get-together, the host that provides alcohol to someone that is underage or “habitually addicted,” is not responsible. He may be made responsible if the injury is obtained in the house in an “unreasonably dangerous” area.

While a social host may be shielded from liability for serving alcohol to a known alcoholic for injuries caused by his intoxication (Dowell v. Gracewood Fruit Co.,559 So. 2nd217 (Fla.1990) and from third-party injuries caused by serving alcohol to a minor (Kirkland v. Johnson,499 So.2nd 899 (Fla. 1st DCA 1986), Florida Statute 856.015(2), enacted in 1988 should be carefully considered. FS 856.015(2) , “OPEN HOUSE PARTY RULE” states; “No person having control of any residence shall allow an open house party to take place at said residence if any alcoholic beverage or drug is possessed or consumed at said residence by any minor where the person knows that an alcoholic beverage or drug is in the possession of or being consumed by a minor at said residence and where the person fails to take reasonable steps to prevent the possession or consumption of the alcoholic beverage or drug” This is a criminal statute . Violation of this statute could impose a civil cause of action against this social host (negligence per se)See Newsome v. Haffner,710 So. 2nd 184 (Fla. 1st DCA 1998).

This law is not crystal clear and is very delicate for all parties involved. It is suggested that if you are any of the parties involved in this type of accident, you should contact a lawyer immediately. The professionals at Jeff Davis Law are prepared to handle this case from any perspective, call us at (305)377-5777 or fill out our contact form for a prompt response from our team.

Anesthesiologist Case May Lower Bar For Fla. Med Mal Suits

February 16, 2018/0 Comments/in Medical Malpractice /by Jeffrey R. Davis

Law360 (February 13, 2018, 3:20 PM EST) — If the Florida Supreme Court revives claims against an anesthesiologist whose quick clearance for surgery of a woman allegedly contributed to her death, experts say it could make it easier for medical malpractice plaintiffs in the state to allege causation, or that a health care provider proximately caused a person’s injuries.
The state’s highest court agreed in January to rule on whether Dr. Arturo Lorenzo was properly cut loose from a suit accusing health care providers including Hialeah Hospital of negligent treatment that caused the death of patient Maria Elena Espinosa just prior to brain surgery. Lorenzo, an anesthesiologist, is accused of improperly clearing the patient for surgery despite certain red flags, including an abnormal electrocardiogram and lab results.
The Third District Court of Appeal ruled 2-1 in August that the patient’s family failed to present evidence proving Lorenzo — who spent just three to five minutes conducting the initial portion of an anesthesia evaluation while the assigned anesthesiologist was running late to the surgery — played a causal role in Espinosa’s death, and issued a directed verdict in Lorenzo’s favor.
A well-respected judge, District Judge Kevin Emas, however, issued a lengthy dissent, arguing that the red flags were sufficient evidence to preclude a directed verdict.
At stake is Florida malpractice plaintiffs’ ability to assert claims against doctors who may have tangentially contributed to a patient’s injuries, so long as plaintiffs can prove they played some part, according to Andrew S. Bolin of Beytin McLaughlin McLaughlin O’Hara Bocchino & Bolin PA.
Bolin, a medical malpractice defense attorney, told Law360 that the current suit is a follow-on to Saunders v. Dickens, a 2014 Florida Supreme Court case that determined a subsequent treating physician’s negligence can’t insulate a prior physician’s alleged negligence.
Even though the subsequent treating physicians said they would have acted no differently despite a previous doctor’s alleged negligence, the Supreme Court concluded in Saunders that such evidence is inadmissible and irrelevant and shouldn’t be presented to a jury when determining causation.
The high court said the only issue was that, more likely than not, the defendant physician proximately caused the injury.
“When the Saunders case was handed down in 2014, it got a lot of attention from both the plaintiffs and defense bar — it was a case that certainly looked at causation in medical malpractice differently than anything we had seen in the past,” he said. “In the Ruiz case, the Florida Supreme Court is looking to revisit the Saunders decision to give further clarity on what they were communicating.”
The appeals court’s ruling in the instant case, Bolin said, determined that because Lorenzo only treated the patient for a brief period of time and early on, there was no competent evidence that subsequent physicians would have acted differently based upon the actions of Lorenzo.
“This is really a focus on causation and the way that causation is going to play a part in what the plaintiff has to prove,” he said.
Lani Dornfeld, a health law attorney with Brach Eichler LLC, said the case is difficult because there were multiple physicians responsible for Espinosa’s care and surgical procedures, and Lorenzo only served as a fill-in anesthesiologist for three to five minutes before handing off care to the other anesthesiologist.
“It would seem to be a logical conclusion that [he] is the anesthesiologist responsible, and not Dr. Lorenzo,” she said.
But the Florida Supreme Court is looking to make a distinction between simple cause-and-effect and causation, the latter which implies proximate cause and liability, according to medical malpractice defense attorney James J. Nosich of Nosich & Ganz Attorneys at Law.
“The plaintiffs are arguing ‘but for’ the anesthesiologist’s involvement or negligence, the patient would’ve never gotten into the operating room, so therefore anything that happened in the operating room is on the anesthesiologist,” he said, “While the defense is arguing more about proximate cause, or that there was nothing linked to [Lorenzo’s] alleged negligence.”
Nosich said he wouldn’t be surprised if the directed verdict is overturned, saying Judge Emas laid out a lengthy and logical dissenting opinion.
“You can certainly say that Emas took the time to really hash out his position. I thought it was lengthy and well-thought out; he went through testimony piece-by-piece,” said Nosich. “He’s a really smart judge, and he obviously feels strongly about it — it’s a well-written dissent.”
Personal injury plaintiffs attorney Jeffrey R. Davis said he, too, would not be surprised if the Florida Supreme Court revives the case and sends it back for a retrial on the issue of Lorenzo’s liability.
Davis said Judge Emas correctly states that the majority is looking at the evidence too narrowly and should have viewed the evidence in a light most favorable to the plaintiff.
“If you do that, there was enough evidence, [Emas] says. And by the way, the test is not what the judges think the outcome of the case should be — the judges are gatekeepers who have to decide whether there is a requisite offering of proof, not the weight of it — that’s the jury’s job,” he said.
“The [Court of Appeal] had this decision as a fait accompli and agreed with the trial court and crafted their opinion to support it.”
Given the current makeup of the Florida Supreme Court and its decisions in medical malpractice cases in recent years, Bolin said he believes there is a 60-40 chance that it revives the claims against Lorenzo.
“I think it is likely that we will see this decision overturned on the authority of the Saunders decision and perhaps even a greater highlighting of causation in that regard,” he said. “In my opinion, it would lower the bar significantly for causation and erode what has been the standard in Florida for a very long time. It would erode the basis for causation and the importance causation plays as an essential element in a medical malpractice case.”
Espinosa’s family is represented by Jorge P. Gutierrez Jr. of The Gutierrez Firm and Philip D. Parrish PA.
Lorenzo is represented by Jonathon P. Lynn of Chimpoulis Hunter & Lynn PA and Dinah Stein of Hicks Porter Ebenfeld & Stein PA.
The case is Ruiz v. Tenet Hialeah Healthsystem Inc. et al., case number SC17-1562, in the Supreme Court of Florida.
–Additional reporting by Carolina Bolado. Editing by Philip Shea and Kelly Duncan

https://www.law360.com/personal-injury-medical-malpractice/articles/1011378/anesthesiologist-case-may-lower-bar-for-fla-med-mal-suits

Practice Considerations – Personal Injury Lawyer – Miami, FL

February 16, 2018/0 Comments/in Amusement Park Injury /by Jeff Davis Law

For the injury lawyer handling a knee case, a working knowledge of the anatomy, terminology and basic pathology is essential.

The AAOS reports in 2010 there were about 10.4 million patient visits to doctor’s offices because of common knee injuries such as fractures, dislocations, sprains and ligament tears. “Knee injury is one of the most common reasons people see their doctors”.

It’s the largest joint in the body – if you are going to represent a client with a knee injury, learn the anatomy – what the component parts are and how they work.

The simple and most cost effective way to learn about your client’s knee injury is to start with the first responder’s records. Pay careful attention to the history, complaints and physical examination findings. Was swelling or effusion documented? Was there a description of redness, bruising or contusion? Look for the term “hematoma”. Was decreased range of motion or “ROM” documented? Did your client require assistance ambulating or were they placed on a stretcher.

The next source of information is the emergency room records. Patient complaints, history and physical findings must be carefully reviewed. X-rays reports, doctor’s notes and discharge instructions are also important points of information.

The initial treatment records with the PCP, family doctor or internist should be carefully examined for knee complaints and findings. Your knowledge of all of these materials in a thorough, comprehensive and chronological order will truly benefit your case presentation to the treating orthopaedic surgeon, claims adjuster and defense counsel.

All doctors, especially orthopaedic surgeons are busy people. When you meet with your client’s treating orthopaedic surgeon, physiatrist or neurologist, knowledge of the minute details contained in the medical records is essential. They will not know as much about these facts as you do! This is how you get their attention and how you get the most out of the brief conference they will give you. Use this time wisely – go in with a goal oriented plan.

I like to have my client’s doctors, especially in knee cases, give me answers to these topics:

1. What is the injury?

2. Is it traumatic, and if so, how can we prove that?

3. What was pre-existing and what was new?

4. What is the treatment plan: cost, length of time, rate of success?

5. What effects or limitations will be permanent and can that be proven? (we live in a Daubert world- remember to get your doctor to think in terms of that level of proof).

Remember, timing of the conference with the treating doctor is important. Too soon and many of the inquiries will go unanswered: too late and all the documentation will have already been created.

If the case warrants it, hire a medical illustrator or visual presentation company. It pays to have your AV person meet with the treating doctor to prepare and later review your exhibits, especially if they are to be used in trial.

Have your client take the time to explain how their knee injury has affected their lives. These details are important to your jury. While the average juror may not appreciate the significance of anterior cruciate ligament instability, they will understand the difficulty associated with knee pain that prevents your client from getting out of their car.

To do the best possible job for your client in a knee injury case, know more about your clients’ knee injury than everyone else involved in the case. Know all the complaints, the documented findings, the dates of treatment, complaints on those dates, doctor’s opinions, treatment and results. Know the knee inside and out. You will be surprised how this body of knowledge will enhance the valve of the case and improve the result for your client.

Good Luck!

Medical Records Rip Off

February 6, 2018/0 Comments/in Medical Malpractice /by Jeffrey R. Davis

Until 1997, a monster of a “medical transcription” industry was developing right under the United States’ nose. A medical copy would cost one dollar per page to third parties that represented a patient- we’re talking lawyers, insurance companies, etc. These companies turned the copies for an incredible amount of profit until HIPAA regulations required doctors and medical establishments to transfer all paper records to a digital format.

Now, 21 years later, these companies are still charging an insane amount of money for a copy of a medical record. However, all it takes is a few clicks and a couple seconds to download these documents onto a USB. No paper, no ink.

Lawyers and insurance companies must pay thousands of dollars to a medical transcription company to have your records released to whomever you choose… in the age of technology! Companies like CIOX, that took over the medical transcription industry, are claiming that if third parties do not pay them for patient medical records, they acquire a “tremendous financial burden.”

This creates a large financial toll on the third party that needs access to those files. This means the cost of your representation can be directly affected. There has been a lawsuit filed in relation to this matter- let’s hope that we don’t continue to get ripped off by medical transcription companies.