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Automobile Accident: Claim vs Lawsuit

December 17, 2015/0 Comments/in Automobile & Motorcycle Accidents /by Jeff Davis Law
Car Accident Lawyer in North Miami

Things turn out best for people who make the best of the way things turn out.

Automobile Accident Lawyers North Miami

One of the most frequent questions I am asked during initial meetings with new clients is; “how long is my case going to take?” Fair question to which I never have the exact answer. A lot depends on what stage of the case a resolution is reached. Usually at this point in my new client discussion, I explain the difference between making a claim and filing a lawsuit.

Absent a stragic purpose or unusual set of circumstances, my firm usually sends a notice letter to the at-fault party, financially responsible (or vicariously liable) person or entity and their insurance company if known, upon assuming representation. This “notice of representation” letter requests the disclosure of insurance information. Florida has a specific law, Florida Statue 627.4137 that requires insurance companies to disclose information about the existence of insurance coverage.

The “claim” is the presentation of a case to an insurance company or defendant. Following receipt of a representation letter and request for coverage disclosure, an insurance adjuster or third party administrator is usually assigned to the case.

Many times, especially in cases involving automobile accidents, the amount of insurance coverage is not enough to cover the damage or injuries sustained. In these situations, frequently the insurance company will promptly surrender or pay the insurance limits in order to settle or resolve the claim.

Once a relationship is established with a particular insurance adjuster, all correspondence, medical documentation, bills or “specials” are forwarded to this adjuster. In my office, we believe that it is better to send the claims adjuster case materials as they are received rather than waiting until the conclusion of medical care treatment in order to present a demand and provide these materials for the first time. Our thinking is that by continuing to update the claims handler on the progression of our client’s case, they can set higher reserves for future settlement negotiations. Insurance companies try to project what a claim’s value will be at its inception in order to budget or manage their risk. By continually forwarding new case materials such as bills and office notes to an adjuster during the pendency of the claim, the adjuster knows about the nature of the claimant’s injuries and is able to forecast a more realistic case value when the time for negotiations come. It also lets the adjuster know that the law firm is on top of the case and actively handling it.

Automobile Accident Lawyers in North Miami

As North Miami Beach automobile accident lawyers, we are aware that Florida law requires proof of some measure of permanent injury in order to obtain full compensation for our clients. In fact, Florida Statute 627.737 (2) spells out the type of injury or damage that a person involved in an automobile accident needs to sustain in order to recover money damages for pain, suffering, mental anguish and inconvenience. They are as follows: (a) significant and permanent loss of an important bodily function; (b) permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement; (c) Significant and permanent scarring or disfigurement; [or] (d) death.

This “threshold” of injury or damage is needed to obtain non-economic damages as a result of a car crash. Frequently, it takes some six or more months of medical care, treatment and observation for an injured crash victim to reach maximum medical improvement. This means that before a physician can make a decision on whether or not a patient has sustained a permanent injury, it takes six or more months of care. Insurance companies understand this and typically keep claims files on a 60-90 day diary to update them for status. When the client is finally released from the doctor’s care, we request a final report asking the physician to specify the degree of permanent injury, if any. Upon receipt of the medical records, billing statements, PIP payout sheets, health insurance liens or payment documents, loss wage documentation and any other relevant expenses, we package the same, together with any other evidence in the case such as photographs, 911 recordings, property damage records or any other case materials and submit it to the insurance company adjuster with a settlement demand. Insurance companies like to try and settle claims for the lowest amount they can reasonably get away with.  While each case is unique and no two cases are exactly the same, there is often a generalized range of values that lawyers can agree on. It is important that your car accident attorney has an understanding of what your claim’s value range is. This information can be obtained from a variety of sources starting with case handling experience, jury verdict and settlement reports, discussions with other attorneys, list servs, seminars and reported decisions. The client should be made aware of all settlement offers promptly so that discussions can be had on how to proceed. If negotiations fail to reach a reasonable settlement offer and/or the insurance company denies the claim, a lawsuit is frequently the next step.

A lawsuit begins with a document known as a complaint. A complaint is filed against the at fault persons, firms or entities and is accompanied by the payment of a filing fee with the clerk of courts. Once a lawsuit is filed, it is served upon the defendants by a process server.  Once served, the defendant has 20 days in which to file a response or answer. Now the case is in “litigation”. Discovery is exchanged between the parties in order to gather information. Discovery consists of interrogatories (written questions answered under oath), requests for production (written requests for documents and other materials relating to the case or claim), requests for admissions, requests for inspections or entry upon land, request for examination and depositions to name a few types of discovery. The discovery process can take months or years. Although a case can be “noticed for trial” twenty days after the filing of an answer or last pleading, most cases take longer to get ready. Even when a case is placed on the court’s trial docket, it is frequently not reached or called for trial on the first time up. Court dockets are busy and usually judges schedule trial dockets on 2 or 3 week calendars. Courts try to give older cases priority over newer cases however there are exceptions. Litigation is much more time consuming and expensive than the claims process. Once a case is placed in litigation a judge often dictates the pace at which the case gets resolved. In federal court, judges are far more strict with their time constraints than in state court.

Contact an Automobile Accident Attorney in North Miami

The difference between a claim versus a lawsuit is vast. It is important that a lawyer and  client discuss exactly what the client can expect to happen once the case goes into litigation. For any questions or additional information on claims or lawsuits following car accidents involving personal injury, please contact Jeffrey R. Davis, P.A. for a free consultation. We are car accident lawyers in North Miami and car accident lawyers in North Miami Beach, however we handle all types of claims throughout Florida.

Florida Supreme Court Rules: Car Owners are Liable

April 11, 2014/0 Comments/in Amusement Park Injury /by Jeff Davis Law

On April 10, 2014 the Florida Supreme Court ruled in Christensen v. Bowen that an individual who has his/her name on the title of a vehicle as co-owner is vicariously liable under the dangerous instrumentality doctrine even though he/she never intended to be the car owner and claimed to giving up control of the car to another co-owner. Simply, if your name is on the title and even though you :1) do not have access to the car where it is parked; 2) you do not have keys to the car; 3) you simply intended the car as a gift; and 4) you did not drive the car, you will be found (liable) for any negligence committed by the driver of said car. In the Christensen case, Mr. Christensen the Defendant and Petitioner (the co-owner named on the title) was in divorce proceedings at the time of the accident.  Note to the wise:  Make sure if you are getting divorced that you transfer the interest to the person that will be driving the car.  If you keep the interest in the car, i.e., your name on the title, you could be held liable for any car accidents that the driver causes.

If you or a loved one is injured or is a victim of a  car accident, it is important to seek legal counsel as soon as possible. A personal injury attorney will be able to document and preserve evidence that will support your potential claim. A car accident lawyer will also be able to request documents such as a your medical records, police records, and court records which will all potential help your future case.  Jeffrey R. Davis, P.A., has a vast experience representing injured victims in personal injury and car accident matters. Jeffrey Davis has represented hundred of individuals as a result of the careless driving of others. Jeffrey Davis, car accident attorney, may be able to help you obtain the justice you deserve.

It is important that if you or a loved one is injured in a car accident, you obtain as much information that you can regarding the other driver/party (insurance information, tag, name, address, etc.). You should also make sure that you tell police a simple and concise explanation of how the accident happened. Make sure that you do not accept money or sign any type of release at the scene of the accident. Also, do not get into a fight or an argument with the other driver. Make sure that you do not speak to anyone at the scene other than the police. Many times, an insurance company will send out an immediate response team.  They are not on your side. In addition, your insurance may come out to the scene to prove that the accident was your fault or that you were not injured. Olga Porven, Esq., an attorney with Jeffrey R. Davis, P.A., is a former insurance defense attorney. She is well aware of what the insurance companies are capable of and has the experience in dealing with insurance companies to help you obtain potential compensation in your case.

Contact Jeffrey R. Davis, P.A. for a free consultation. One of our attorneys will gladly speak to you regarding your personal injury matter.

 

 

 

Knowing Too Much Can Be Bad For Your Health – Patient Knowledge in Medical Malpractice Cases

April 9, 2013/0 Comments/in General Negligence, Medical Malpractice, Wrongful Death /by Jeff Davis Law

“You have terminal cancer”

Words that would make any patient develop instant and profound perspective into how important they consider their lives to be. When a patient is faced with a diagnosis such as this, they often go through what is considered the Five Stages of Death – Denial, Anger, Bargaining, Depression, and Acceptance. As a coping mechanism, many patients in the Bargaining stage attempt to look for an answer to their problems. Some turn to religious support while others turn to uncovering everything humanly possible about their disease and “bargaining” ways in which they can defeat it.

For some, it might seem unimaginable that trying to understand and attempting to learn everything about your disease could end up hurting you. Yet, the dark truth is that what you know CAN be used against you. In fact, it’s occurring right now inside Florida courtrooms. Courts have started to hold patients more accountable for their medical care. Some people feel that educated patients have been penalized for their knowledge, with medical malpractice cases arguing that these patients failed to adequately care for themselves throughout the treatment process. The rationale behind this is that technology and the advancement of education has made the public more savvy to medical issues, thus the public bears a share of the responsibility for their treatments. Countless medical malpractice suits have resulted in reduced liability for practitioners and increased expectations for educated patients.

In a medical malpractice suit, patients sue medical practitioners, such as doctors, for any medical malpractice that the doctor committed – malpractice such as failing to take adequate care of the patient or failing to prescribe the patient the necessary medications. However, courts have recently held that since patients are now more knowledge about their condition or diagnosis, they should be charged with more responsibility and less should be placed on the medical professional. Therefore, in a medical malpractice action where a doctor did something wrong in the medical procedure, the patient may not have sufficient remedy if the doctor can prove that the patient did or did not do something he knew he should or should not have done, but something the doctor might have neglected to explain thoroughly.

So is Florida medical malpractice law sufficiently protecting patients now? Has precedent tipped the scales in favor of doctors too much now and neglected unaware patients?

The “Traditional” Relationship of Trust

Traditionally, courts assumed that in doctor-patient relationships, the physician had superior knowledge while the patient had little experience and information in regards to any health issues. As such, patients placed great trust in a physician’s decision-making ability and authority. Because of this, physicians were held to a higher standard of care. The traditional physician-patient relationship was based on the patient’s “blind faith” and the physician’s expert and superior guidance.

The New Relationship in the Age of the Internet

The traditional physician patient relationship was based on faith and trust. Unfortunately, the increasing number of medical malpractice cases coupled with the dawning societal realization that doctors can be wrong has led patients to find, explore, and educate themselves with all of the relevant and expert information available via the internet. Patients have started to arm themselves with knowledge about their illness and the steps they must take to better themselves. With the growth of easily accessible scientific knowledge and higher levels of education among the public, many physicians have difficulty maintaining credible claims of special status and judgment. Patients have removed the blindfolds of trust they placed on themselves for their doctors and have instead started to complement doctor information with information they acquire from medical journals, condition-specific books, and the vast, knowledge-rich world of the Internet.

The Ugly Result of Patient Education

In the past, courts were less likely to hold patients responsible for their own care in a medical malpractice action because practitioners had vastly superior knowledge. Physicians had a difficult burden in demonstrating that a patient was negligent with his own care. Now, with the evolution of the doctor-patient relationships, courts have begun to hold that patients are no longer presumed oblivious and unaware of health care needs. Thus, patient negligence that occurs after physician negligence can, in some cases, be used against the patient.

The Medical Malpractice Action

For a patient to effectively assert a medical malpractice action, the patient must show that the physician had a duty, the physician breached that duty, the physician was the cause of the harm, and that an actual harm occurred. The burden to prove this falls on the patient as the party seeking relief.  The duty must be based on a physician-patient relationship, and sometimes a recognized standard of care in the medical community is used to determine whether the doctor had a duty or not. To prove that the doctor breached the duty, the doctor must have failed to comply with that standard in the care of the patient. Lastly, the cause of the harm must result from a casual connection between the breach of duty and the injury sustained by the patient. To succeed the patient must prove all of these elements.

However, in Miami, Broward, West Palm, and other Florida courts, physicians are more often asserting the affirmative defense of comparative negligence – a defense that allows physicians to show that the patient’s negligence, rather than or in addition to the physician’s negligence, was the cause of the patient’s injury. Traditionally, a defense of comparative negligence in a medical malpractice action was often unsuccessful due to the unique characteristics of the physician-patient relationship – the physician’s superior knowledge, the patient’s inexperience, and the high standard of care demanded of the physician. All that has changed.

Comparative Negligence – Did the Patient Breach His Own Duty of Care?

When a physician is sued for medical malpractice, a physician can assert comparative negligence – a defense that reduces the patient’s recovery in the medical malpractice action. The defense ascribes negligence of the patient as a contributing cause to the damages that are being claimed.

To establish the defense of comparative negligence in a medical malpractice action, a physician must prove each of the following elements of negligence:

  1. The patient owes himself or herself a duty of care
  2. The patient breaches that duty; and
  3. The breach of the duty is proximately connected to the damages the patient sustains.

A doctor would have to prove that the patient was well-informed regarding the severity of their condition and the significance of the treatment of the condition. In addition, to establish that the patient had a duty of care for themselves, there is a requirement that a patient exercise the degree of care expected of a reasonable person under similar circumstances. This standard of care can be modified depending on the pain, disability, medication, the effects a disease has on the patient, and the difference in levels of knowledge between the doctor and patient.

Proximate cause in comparative negligence in a malpractice law suit occurs where the patient’s action was the natural, direct, and continuous sequence between the negligent act of the patient and the injury that it caused. Common instance of where courts have held that comparative negligence occurs is where a patient fails, disobeys, or delays to follow a physician’s advice. The result is that since patients have become more knowledgeable about medical issues, a patient’s refusal or inability to exercise due care to protect his own health needs is more likely found to be the proximate cause of the harm to the patient. Therefore, no longer is it just the doctor who is the target for the negligence in a medical malpractice action – the patient is now partially at risk.

What is the Modern Patient Left To Do?

No one expects patients to stop informing themselves about their diseases, diagnosis, or general health issues, especially when so much information is so readily available. Therefore, as an informed modern patient, it is necessary to understand that a patient’s role in understanding the nature of their care has increased. Consequently, patients have much greater responsibility in the eyes of the courts than in the past.

To have a viable claim for medical malpractice and to make sure that doctors do not transfer responsibility to patients, it is important that patients:

  • Follow the directions and prescription instructions provided by their doctors. Patients must follow doctor directives as best as possible in order to minimize the likelihood of a comparative negligence defense undermining the ability of the patient to seek full damages
  • Ask their doctors additional questions if they feel that the directions or prescriptions are not accurate due to their prior information on a health issue. If a patient is still uneasy, get in writing the reasons why a specific instruction or prescription has been given.

Are the courts fairly holding patients more accountable for their own standard of care? Are patients partially negligent in instances they fail or disobey instructions by a medical practitioner? Tell us what you think in the comments below.

 

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Jeff Davis Law P.A.

jeffPersonal injury law is our main practice. Personal injury cases arise when the tortious action or inaction of a person or corporate entity causes harm to another individual. “Tortious” acts may be based on negligence, recklessness, intentional acts, or even strict liability in certain cases (such as abnormally dangerous activities and defective products).

Accordingly, the firm handles a wide range of cases involving accidents, medical malpractice, insurance disputes, products liability, and premises defects. For specific areas please browse our complete list of practice areas.

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