Panama City Florida Injury Lawyer Blog

The 112th Congress has been in session for only a few weeks, but it seems intent upon changing medical malpractice liability laws. The House Judiciary Committee's first hearing was entitled "Oversight Hearing on Medical Liability Reform - Cutting Costs, Spurring Investment, Creating Jobs." And only a few days ago, Rep. Phil Gingrey, Republican from Georgia, introduced H.R. 5, the Health Act. This bill can be dangerous to all of us who consume medical services, because it is so broad. It applies to all health care providers, regardless of the theory of liability. It also applies to cases against the pharmaceutical, nursing home, and insurance industries. The bill preempts state law that is more protective of patients while keeping in place state law that favors medical providers.

H.R. 5 is on a fast track. Here are some of its major points. As I said, it is very broad. It covers not only doctors and hospitals but also nursing homes, the pharmaceutical industry, and insurance giants. It reduces the amount of time an injured patient has to file a lawsuit to just one year from the date an injury was discovered or should have been discovered. It limits the non-economic damages to $250,000 regardless of the amount of suffering inflicted on the injured person or a deceased patient's survivors. That might sound like a lot of money, but consider the type suffering that Rep. Gabrielle Giffords from Tucson has experienced and will continue to suffer during her coming months of rehabilitation and possibly the rest of her life. It is a pittance in comparison. Her circumstances happen to be from a bullet, but the same effects are seen every day from medical and nursing home malpractice.

The bill also completely eliminates joint liability where several defendants' poor judgment and substandard care contributes to an injury or death. This means that longstanding principles of fairness to the victim are sacrificed to the economic benefit of one or more perpetrators of the negligent care. The bill also limits punitive damages to $250,000 or two times the amount of economic damages, whichever is greater. Since punitive damages laws presently in place are thought to deter grossly negligent conduct by nursing homes, hospitals, and doctors, the new bill would make it more economically feasible for those defendants to engage in irresponsible conduct to the detriment of their patients, including you and me.

The bill also completely immunizes manufacturers of drugs and medical devices that are approved by the FDA from punitive damages. The FDA doesn't have the funding or the manpower to ensure the safety of drugs and devices, especially when a manufacturer covers up reports of adverse reactions of drugs or failures of medical devices. Nevertheless, under this bill, those manufacturers would be protected. The deterrent effect of punitive damages would be removed from the equation. We live in dangerous times, perhaps more so when legislatures and Congress are in session.

The federal government predicts that 1.5 million home foreclosures will occur in 2011. Banks pushing for foreclosure have received bad reviews in the last year because of their flawed foreclosure methods. Yet, law firms that have committed fraud while doing the banks bidding have been largely ignored. The firms doing these foreclosures tend to be big, and they do their work statewide. Expect them to be working here, and know what to look for, because Florida, Alabama, and Georgia are having a lot of foreclosures.

The issue is not whether the homeowner is late on his or her mortgage. It is whether the bank's attorney's fees and costs for the foreclosure, which are tacked onto a mortgage deficiency for the homeowner to pay, are fair. In a lot of cases, they are not. For example, in July 2010, the Fourth District Court of Appeal in Florida summarized a case against a south Florida law firm that worked throughout the state filing over 6,000 foreclosures a month for its banking clients. Property owners had filed claims against the law firm and the bank client based on letters the firm sent to them demanding payment for fees and costs. Those fees and costs were alleged to be unreasonable, excessive, or not even currently due for services. The property owners said that in instances where title examination fees were charged by the firm, the fees exceeded the out of pocket and overhead costs for the work. They said that the law firm even sent invoices showing that the title exam was conducted by a title and abstract company when in fact the exam was done by someone working in the firm. Other charges, fees, and costs were billed to the homeowners although the expenses had not been paid by the defendant firm or the defendant bank. On the facts alleged by the homeowners, the district court held that the allegations were more than sufficient for the case to proceed as a class action.

In another case, the Florida Supreme Court came to the same conclusion on nearly identical facts. In that case, the billings for some items of costs were alleged to be more than 5 times the actual costs paid by the firm. A federal bankruptcy court in Ft. Lauderdale sanctioned one firm, called the Florida Default Law Group, P.L., for filing false affidavits claiming penalty interest by assessing a huge fine against it.

The point is this. If a foreclosure action has been filed against you and you have questions about the amounts charged for legal fees or costs, bring your concerns to the attention of a lawyer who can answer your questions. It is unlikely that the scams being perpetrated are limited to just the 3 firms I mentioned. Where there is smoke, there is often fire.

A couple days ago, I was thinking about the recent fire at the landfill at County Road 390 and Pipeline Road in Bay County. It was a nuisance to many who lived in the area. They became sickened by the smoke from the fire that burned for weeks from below tons of debris. I didn't use the word "nuisance" lightly. One of the legal theories under which cases can be brought against individuals and corporations is called nuisance. In the landfill matter, suit was impractical since the owner of the landfill had died, but in other instances, suits can be highly successful to obtain compensation for harm that results from another's interference with property or health rights. I'll give you some examples of claims that have been made.

In 2002, two property owners in Connecticut brought a nuisance action against operators of a dairy farm located less than a third of a mile from their property. They claimed that the decline in the value of their property was due to the offensive odors produced by the operators' dairy farm. In 1990, the owners of the dairy farm built a forty-two thousand square foot barn and milking parlor on their land to house a herd of dairy cows and a pit in which to store the manure from the herd. The plaintiffs noticed odors from the farm in early 1991, but they were nothing more than typical odors generated on a livestock farm. With time, however, the odors became overpowering. They awoke the plaintiffs from their sleep and forced them to close the windows of their home. They sued, alleging that "the defendants' dairy farm generated offensive odors that unreasonably interfered with their use and enjoyment of their property." An important part of their allegations was that the odors could have been reduced or eliminated if the defendants had used reasonably priced technology that was readily available to them. The jury found that the dairy's operators had been negligent, so the landowners were compensated for the diminished value of their property.

Other cases are also typical of nuisance claims such as claims against the owners of landfills for locating them near housing projects and then permitting hazardous waste to be dumped in them; claims against factories for creating soot, smoke, and odors that interfere with the enjoyment of nearby private property; cases against various industries for causing so much noise that nearby residents cannot sleep; claims against paper companies for emissions of smoke that is alleged to be harmful to the lungs, to cause cancer, or to damage the paint on vehicles.

A comment by the court in the dairy farm case provides some guidance to anyone who is thinking about bringing such a case. The court said, "It is the duty of every person to make a reasonable use of his own property so as to occasion no unnecessary damage or annoyance to his neighbor." I hope that today's discussion will be useful in some way instead of being, well, a nuisance.

Would you know what to do if you were driving and another vehicle hit you? It's equally important to know what NOT to do in those circumstances. I'll share a couple things I've learned from handling thousands of accident cases successfully over the years. A lot of people who are hurt in accidents become victims for a second time by making the wrong decisions. First, they are the victims of a bad driver. By making bad decisions after the wreck, they become victims again, typically of the insurance companies.

Here's a scenario that's become an epidemic. The wreck happens and the hurt person goes to the emergency room. The doctor decides to either treat and release or admit for a hospital stay. Within hours at either place, a telephone call comes. It's from an insurance adjuster for the guy who hit you. He talks nice and friendly and says how sorry he is that you were hurt and that he's there to help. To become a victim twice from the wreck, go ahead and talk to him. Let him take the recorded statement he'll ask for, as he'll say, "just so I can document my file." You'll be his at that point. Then, it's easy to be led down the path by the adjuster intent upon manipulating you into giving up your case for pennies on the dollar, because by then he will have gained your confidence through the sales techniques adjusters are taught.

State insurance regulations require an adjuster to be fair, but what's written on paper and what actually happens are vastly different things. Why are adjusters suddenly beating a path to injured people's doors? Because we're in an economic downturn. Insurance companies are hurting, too. They know with certainty, like the gambling casinos know the odds are stacked in their favor, that if they can keep wreck victims from getting professional help, they will save a bundle of money, all at injured peoples' expense. The claims manual for one of America's biggest auto insurance companies tells its adjusters to get there fast, before the victim has a chance to call an attorney, and to get the confidence of that victim. The manual tells them why this is important for the insurance company: the company on average will pay only one-third of the value of the injuries if the adjuster can prevent the hurt person from hiring an experienced injury attorney.

Another mistake, this one occurring minutes after a wreck, leads again to legal troubles after the wreck. The careless driver or the police officer asks, "Are you hurt," and in the confusion of the moment, standing on the side of the highway, you say, "Oh, no, I'm fine." That seemingly innocent statement can immeasurably complicate a legal case when in a few hours or a few days pain begins and gets worse from injuries that were unknown at the scene. A true response to the question would have been, "I'm not sure."

The moral of the story is, (1) at the accident scene, don't assume that you haven't been injured, and (2) get professional help with the complexities of an accident case. Don't become a victim the second time.