May 2018 - Jeffrey R. Davis Law

High School Dance Horror

May 28, 2018/0 Comments/in Bad Faith /by Jeffrey R. Davis

We recently concluded a case involving high school senior that was injured at a school dance. The case took nearly 7 years to finally conclude. The claim began when our client, age 19 attended a high school dance in a large auditorium. Students were allowed to perform their own, freestyle dances. The school allowed the students to form a large circle and individuals or groups of students would enter the center of the circle in order to perform their various routines. The school had no plan for the dance, no rules and, virtually no supervision. Essentially, the students were allowed to perform any type of dance or maneuver they chose. Our client, an athletic gymnast, decided that he and his partner would perform a lift-assisted back flip. The stunt went horribly wrong when the airborne student failed to complete the rotation and smashed his head on the hardwood floor.

Fire rescue was called. The student was unresponsive, and when he did come to, became agitated and in distress. He was handcuffed to avoid further injury. At the hospital, he was diagnosed with a fractured skull and bleeding into his brain.

The hospital visit lasted more than 5 months. Our client developed a massive brain bleed over the days following the fall that required multiple brain surgeries. He was transferred to a rehabilitation facility for many months and has lived for more than 5 years in a nursing home where he repetitively counts playing cards as a daily activity.

The claims involved negligent supervision against the school, negligence against the fellow-student that launched him into the air and medical malpractice cases against the healthcare providers that failed to provide timely intervention, care and treatment. The added insult is this young man was here on a student visa – he is now subject to deportation. This complex negligence and medical malpractice claim was resolved in our client’s favor thereby providing him with the means to receive supervised care and attention for the remainder of his life. This tragedy has resulted in the school implementing significant changes in the protocols of their supervision to hopefully avoid another tragic injury.

Here at Jeffrey R. Davis, P.A. we work on significant personal injury claims on behalf of injured victims. If you have been injured due to negligent supervision, medical malpractice or any other injury claim, please call Jeffrey R. Davis, P.A. for a free consultation.

Five Tips to Avoid Semi-Truck Accidents

May 22, 2018/0 Comments/in Health Insurance & Life Insurance Denial /by Jeffrey R. Davis

Miami is a city full of sun, sand, beautiful beaches and semi-trucks. Residents of the city have become so immune to these giant motor vehicles, they do not realize that they have mastered an incredible skill. If you are new to the city and have yet to master it, the team at Jeffrey R. Davis, P.A. is happy to help.

Driving on unfamiliar roads is a hazard; driving on those same roads next to 18-wheelers is dangerous. These large semi-trucks and tour buses take longer to maneuver in critical phases of driving. Understanding how to avoid run-ins with these vehicles could be the difference between life and death. Follow our tips and stay safe while driving.

1.Know the Blind Spots

When you learned to drive, you were taught about blind spots that cars have. Every time a new car is purchased, we learn our new blind spots. They are usually to the right and left of our cars, and new cars are equipped with lane-sensing technology to prevent their drivers from merging into traffic.

Semi-trucks drivers have enormous gaps in their vision, including the majority of their container equipment. This means that it is not only to their immediate left or right, but the majority of the truck. It is best to stay in areas 20 feet from the truck’s cab or 30 feet behind the trailer. If you can’t see the driver and his eyes in the mirror, he can’t see you.

2. Pass the Trucks

Although passing a semi-truck may seem difficult at first, it is actually the most recommended method of avoiding them. This is much safer than riding alongside or behind it. It is also recommended that they are passed in a swift manner to avoid staying in a blind spot for too long.

Make sure that you are at a safe distance to merge in front of it, as it can take trucks about double the time of a car to come to a complete stop. It is not recommended to pass them on the right or downhill.

3. Be Mindful of Wide Turns

Semi-trucks and large vehicles must make wide turns. It is important to be mindful of them and leave them space if they would like to turn in to your lane. If you notice a truck attempting a turn in front of you, do not get in between them and the curve.

4. Be Alert

Many of the accidents between semi-trucks and cars happen because one or both of the drivers are not paying attention to their surroundings. It is very easy to get distracted in our world with cellular devices, GPS and friends or family.

It is critical to maintain your attention on the road, especially in the busy streets of South Florida. Distracted driving has become an epidemic throughout our nation, and can prove to be a costly mistake whether or not semi-trucks are involved.

5. Stay Awake

Summer is around the corner. Time spent outdoors at the beach and parks could fatigue you at an alarming rate. Make sure that you feel fit to drive before sitting behind the wheel. Remember, there are always rideshare options like Uber and Lyft to get us home.

Miami is a wonderful city to explore and whiz around, but we must always stay alert to our surroundings. If you or someone you know has been involved in an accident with a semi-truck or tour bus, contact the professionals at Jeffrey R. Davis, P.A. For an experienced lawyer that is ready to help, call Jeffrey R. Davis, P.A. to schedule a free case review.

Injury on Job

May 14, 2018/0 Comments/in Workplace Negligence /by Jeffrey R. Davis

Imagine you are working on a construction site and suffer a serious injury. You need to go to the hospital and have extensive medical care and treatment. Normally, your employer’s mandatory worker’s compensation insurance pays 100% of your medical bills. But, what happens if your employer failed to carry worker’s compensation insurance? Who is going to pay the bills? Who is going to pay for your lost wages? The answer is – your employer.

Florida law requires an employer to carry worker’s compensation insurance to assure the quick and efficient delivery of disability and medical benefits to an injured worker and to facilitate the worker’s return to gainful re-employment at reasonable cost to the employer. (Florida Statute 440.015). The worker’s compensation system was designed to take away the right of a worker to common law remedies such as a lawsuit against their employer when injured on the job in exchange for a guarantee of protection for expenses and loses. While the merits of the system and the failures and limitations are the subject of continual debate and litigation, the purpose of this blog post was to address the limited instance of when an employer does not have the required insurance.

The law allows an employee to directly sue the employer under such circumstances. In fact, Florida law removes the ability of an employer to raise various defenses including efforts to blame other employees, to accuse the injured employee of assuming the risk of injury or blaming the injured employee for his or her own carelessness. (Florida Statute 440.06).

The law specifically allows an employee to directly sue an employer that does not secure payment of worker’s compensation for all damages that occur as a result of such injury (or death).

Many times, employers hire employee leasing companies in order to provide such benefits as worker’s compensation, payroll, tax management and other human resource type functions. Regardless of such outsourcing, it remains the employer’s responsibility to ensure that all necessary benefits are in place to protect the employee in the event of injury or accident.

At Jeffrey R. Davis, P.A. we are presently working on several cases where employees were injured while in the course of their employment where the employer failed to provide worker’s compensation benefits. The employer becomes directly responsible for damages that exceed the limited benefits provided by worker’s compensation. For instance, worker’s compensation coverage provides an injured employee with a portion of the average weekly wages of the injured employee on the date of the accident. If the employer fails to have worker’s compensation insurance, the employee can sue the uninsured employer for the full amount of their lost wages, not the limited amount available under worker’s compensation insurance. Additionally, the employee can sue the uninsured employer for the full amount of the medical bills without regard to the schedule or limitations that the worker’s compensation regulations provide for. Most important, is the right of the injured employee to seek compensation for items specifically excluded by worker’s compensation such as pain and suffering, mental anguish, shame, humiliation, scarring and loss of the capacity for the enjoyment of life. Additionally, a spouse will also have what is called a consortium or derivative claim against an uninsured employer – something they would not have had worker’s compensation been in place.

If you have been injured on the job and your employer has failed to provide the required worker’s compensation benefits, you do have rights. In fact, your rights may be greater in terms of compensation and damages awards then if you were limited to the worker’s compensation system. Jeffrey R. Davis, P.A. handles cases against uninsured employers who fail to provide their injured workers the required benefits under Florida law. If you have such an injury and your employer is uninsured or fails to provide the required coverage under the worker’s compensation scheme, please call Jeffrey R. Davis, P.A. for a free consultation.

Avoiding Loss of Medicaid Benefits from a Personal Injury Settlement-
The Special Needs Trust

May 11, 2018/0 Comments/in Uncategorized /by Jeffrey R. Davis

Jeffrey R. Davis, P.A. has obtained a 7-figure result for the family of an injured baby resulting from a crash involving a tractor trailer. The injured baby is facing a lifetime of medical care and currently has Medicaid benefits.

The Affordable Care Act established a new methodology for determining income eligibility for Medicaid, which is based on modified adjusted gross income. Modified adjusted gross income is used to determine financial eligibility for Medicaid and/or government benefits.

Modified adjusted gross income or MAGI based methodology considers taxable income and tax filing relationships to determine financial eligibility for Medicaid. MAGI replaced the former process for calculating Medicaid eligibility, which was based on the methodologies of the AID TO FAMILIES WITH DEPENDENT CHILDREN (AFDC) PROGRAM that ended in 1996. The MAGI based methodology does not allow for income disregards that vary by state or by eligibility group, and does not allow for an asset or resource test. Typically, Florida residents can have a maximum income level per year of $15,800. Additionally, gross monthly income cannot exceed $2,250. In addition to an “income test” there is also an “asset test”. Applicants for Medicaid cannot own countable assets in excess of $2,000 ($5,000 if income is under $885 per month) in addition to certain exempt and non-countable assets.

So how can a victim of an accident successfully make a claim for damages or receive settlement or judgment without losing their Medicaid benefits? The answer lies in a Special Needs Trust.

A special needs trust qualifies as an exception to the rules normally counting trusts as resources for disabled individuals for SSI and Medicaid purposes pursuant to Social Security Administration’s Program Operations Manual section SI 01120.203B.1 and pursuant to the Florida Department of Children’s and Families ACCESS Florida Program Policy Manual §1640.0576.09, referred to as Qualified Disabled Trusts. Special needs trusts are authorized to be created pursuant to 42 U.S.C. §1396p(d)(4)(A) which states:

A Trust containing the assets of an individual under age 65 who is disabled (as defined in section 1614(a)(3)) and which is established for the benefit of such individual by a parent, grandparent, legal guardian of the individual, or a court if the State will receive all amounts remaining in the trust upon the death of such individual up to an amount equal to the total medical assistance paid on behalf of the individual under a State plan under this title (emphasis added).

Funds held in such a Special Needs Trust will be used to supplement the injured party’s care while preserving future eligibility for public assistance benefits. A Special Needs Trust is used to avoid depletion of the settlement proceeds. Typically, an institutional Trustee is named to administer the benefits. A Special Needs Trust allows certain items and expenses that are not covered by Medicaid to be provided to the injured party without risk of jeopardizing the Medicaid benefits.

Financial instruments such as trusts need to be established by sophisticated attorneys and advisors that specialize in this highly technical field.

At Jeffrey R. Davis, P.A. we work with guardianship, probate and trust attorneys and organizations that administer and manage these complex financial arrangements to protect our client’s settlement proceeds, avoid unnecessary tax ramifications and preserve all insurance and governmental benefits. If you have been injured in an accident or other event and are in need of legal assistance but are afraid that making a claim will result in the loss of benefits, please contact Jeffrey R. Davis, P.A. for a free consultation. Our law firm has experience in protecting the rights of our clients to ensure they are made whole without risking the loss of their insurance benefits, Medicaid benefits or other governmental programs.