The first accident occurred at approximately 8:00 a.m.  This accident occurred at the intersection of southbound Highland Avenue and Sunset Point Boulevard.

While the information regarding this accident remains limited, early reports indicate that the pedestrian may have been struck while in the crosswalk.

The name and condition of that pedestrian has not yet been disclosed

The second accident occurred at 10:25 p.m.  This accident occurred on Belcher Road just past Cleveland Street in Clearwater.

According to police reports, a 57 year old woman was attempting to cross Belcher Road from west to east when she was struck by a Volkswagen driven by 34 year old Ryan Pasco.

Initial police reports seem to indicate that the woman, whose name has not yet been released, was attempting to cross Belcher Road and was in the middle lane when she was struck by Mr. Pasco’s vehicle.  Police do not believe that the woman was in the crosswalk at the time she was struck.

Police also indicated that at the time of the crash, visibility may have been somewhat limited due to rain and darkness.

The woman was transported from the scene of the accident to St. Joseph’s Hospital, where she was pronounced dead at 11:02 p.m.

Issues involving pedestrian and bicycle safety have been an interest of mine since I first began practicing law in 1987.  I carried that interest with me to Tallahassee passing the Senate Companion to my house bill, SB154 in 2008.

This bill amended Florida Statute 316.130, entitled Pedestrians; traffic regulations.

This statute is particularly relevant to the two accidents mentioned above, in that both pedestrians and drivers of motor vehicles have certain rights and obligation which are spelled out in this statute.

The sections of the statute that are most applicable to these cases are:

FS 316.130(2) which states that:

“Pedestrians shall be subject to traffic control signals at intersections as provided in s.316.075, but at all other places pedestrians shall be accorded the privileges and be subject to the restrictions stated in this chapter.” (emphasis added)

Section (7)(a) of this statute reads:

“The driver of a vehicle at an intersection that has a traffic control signal in place shall stop before entering the crosswalk and remain stopped to allow a pedestrian, with a permitted signal, to cross a roadway when the pedestrian is in the crosswalk or steps into the crosswalk and is upon the half of the roadway upon which the vehicle is traveling or when the pedestrian is approaching so closely from the opposite half of the roadway as to be in danger.” (emphasis added).

Section (8) says:

“No pedestrian shall suddenly leave a curb or other place of safety and walk or run into the path of a vehicle which is so close that it is impossible for the driver to yield.” (emphasis added)

Section (10) says that:

“Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles upon the roadway.” (emphasis added)

And finally, Section (15) of the statute reads:

“Notwithstanding other provisions of this chapter, every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian or any person propelling a human-powered vehicle and give warning when necessary and exercise proper precaution upon observing any child or any obviously confused or incapacitated person.” (emphasis added)

If, in the first accident on Thursday, the pedestrian had been struck while lawfully in the crosswalk, then it could argued that it was the driver who was at fault for this accident, as the driver of the vehicle would clearly be in violation of Section (7)(a).

However, for the second Thursday accident, if the pedestrian who was killed in the accident was NOT in the crosswalk at the time she was struck, then her actions may have placed her in violation of Florida law, specifically Sections 2, 8, and 10.  But, it is important to recognize that simply because the pedestrian may have violated Florida law does not release the driver of his or her responsibilities in this case.

Section 15 says that the driver is required to use due care to avoid colliding with any pedestrian.

Given that the reports in the second case indicate that the pedestrian was in the middle lane at the time she was struck, it could and should be argued that the driver of the vehicle should have had ample time to avoid the collision with the pedestrian.

As such, for the second accident, it appears that both parties bore some of the responsibility for the injuries sustained by all parties.

F.S. 316.1925, titled “Careless Driving” also states that

“Any person operating a vehicle upon the streets or highways within the state shall drive in a safe and careful prudent matter, having regard for the width, grade, curves, corners, traffic….and all other attendant circumstances, so as not to endanger life. Failure to drive in such a manner shall constitute careless driving…”

This section obviously applies to the facts of the first AND second case, as it could be argued that the drivers of the vehicles which struck the pedestrians were not driving their cars in a prudent manner, but instead, were driving the vehicle without regard for the weather conditions or any other attendant circumstances.

So please people, let’s remember.  When crossing the street, cross with the light AND while in a crosswalk.  Pedestrians also need to remember that they MUST follow the same traffic laws as does the driver of a motor vehicle.

Drivers, the law changed.  You HAVE to STOP when a pedestrian is properly in the crosswalk.  Even if the pedestrian is not properly in a crosswalk, you still must do everything you can to safely avoid the pedestrian.  Failure to do so not only could result in your receiving a ticket, but could also result in someone losing their life.

But what she didn’t count on, and reasonably couldn’t expect, was that 27 year old Matthew E. Cook, would be driving under the influence of various drugs and would be speeding, at as much as 80 mph in the 40 mph speed zone, eastbound on 1^st Avenue No.

St. Petersburg Police indicated that Cook may have been racing another car when he decided to attempt to pass a vehicle by pulling INTO the Bicycle lane, and in doing so, hitting Ms. Jones.

The force of the impact caused Ms. Jones to be thrown into Cook’s windshield and roof before she was flung to the street when Cook’s Honda Civic struck yet another vehicle.

Sadly, Ms. Jones passed away at the scene of the accident.

Bad enough that the actions of Mr. Cook, in driving under the influence took the life of Ms. Jones, but making matters worse was that inside Mr. Cook’s vehicle was his 3 year old daughter, who was not properly strapped into her seat, and who also sustained injuries in the accident.

Police have charged Mr. Cook with DUI manslaughter, vehicular homicide, and DUI involving serious injury.

This was not Mr. Cook’s first time being charged with a crime.  Mr. Cook has a history of both traffic and criminal offenses, ranging from aggravated assault with a motor vehicle and disorderly conduct, to avoiding a traffic control device, improper backing, and seat belt violations.

Aside from their loss, I suspect the family of Ms. Jones will have little success in making a civil claim against Mr. Cook, as it is doubtful that Mr. Cook carries bodily injury coverage, since that coverage is not required under Florida law and because Mr. Cook had not previously been convicted of DUI (back in 2007, I was successful in passing legislation (HB 359) which required mandatory BI coverage of $100,000.00 upon conviction for DUI).

For the sake of her family, we can only hope that she had uninsured motorist coverage.

Sebring Police reported that Fox, whose SUV was traveling southbound on U.S. 27 S. apparently lost control of his vehicle, struck a concrete drainage structure in the center median, then went across three northbound lanes of traffic.  Fox’s vehicle then struck the side of a Volvo tractor-trailer being driven by Walter Giovanni Aguilar, 46 of Los Angeles, CA, causing his SUV to land onto the hood of Ms. Roaf’s vehicle.

Sebring Police believe that Mr. Fox may have been under the influence of medication or drugs, as witnesses indicated that prior to the accident, Mr. Fox was driving his vehicle in a reckless and aggressive manner.

As a result of this accident, Ms. Roaf died at the scene.  Six passengers in the SUV were taken to Highlands Regional Medical Center.  Mr. Fox was transported to Tampa General Hospital.  Mr. Aguilar appeared to be uninjured.

While it was not reported whether Mr. Fox was charged with a crime, given the manner in which the accident occurred, it should only be a matter of time before Mr. Fox is charged with some crime.

Florida law is very specific when it comes to charges for driving a vehicle under the influence.

First it should be noted that even though it did not appear as if Mr. Fox had been drinking and driving, under Florida law, he may still be charged with driving under the influence.

FS 316.193 states that a person is guilty of the offense of driving under the influence if the person is driving or in actual physical control of a vehicle within the state and

“..is under the influence of alcoholic beverages, any chemical substance set forth in s. 877.111, or any substance controlled under chapter 893..”

As you can see, this statute does not require the influence to be alcohol.

In Section 3 of this same statute, it indicates that any person who is in violation of subsection (1), meaning, any person under the influence, who operated a vehicle and who, by reason of operating the vehicle causes or contributes to causing

“Serious bodily injury to another” commits a felony of the third degree, or causes “The death of any human being” commits DUI manslaughter, which constitutes a felony of the second degree.

Pretty clear cut.  Drive under the influence of drugs or alcohol, cause serious bodily injury or death, get charged with DUI manslaughter.

But what if Mr. Fox’s drug testing comes back negative.  Someone died.  Can’t the State Attorney charge Mr. Fox with some crime that would result in jail time?

The answer is yes. If the test came back negative, under Florida Statute 782.071, Mr. Fox could be charged with Vehicular homicide.

FS 782.071 defines “vehicular manslaughter as the killing of a human being

“..caused by the operation of a motor vehicle by another in a reckless manner likely to cause the death of, or great bodily harm to, another”

Violation of this statute constitutes a felony of the second degree UNLESS at the time of the accident,

“..the person knew or should have known, that the accident occurred; and the person failed to give information and render aid..”

At which time it becomes a felony of the first degree.

However, in order for the State Attorney to charge Mr. Fox with vehicular manslaughter, he or she would have to be able to prove that Mr. Fox was driving his vehicle in a reckless manner.  This calls FS 316.192 into question.

FS 316.192 is the Reckless Driving statute.  It defines reckless driving as

“Any person who drives any vehicle in willful or wanton disregard for the safety of persons or property is guilty of reckless driving.”

So before the State Attorney can get a conviction for vehicular manslaughter, he or she will first have to prove that Mr. Fox drove his vehicle in a reckless manner, meaning that he drove his vehicle in a wanton or willful manner disregarding the safety of others.

If the State Attorney proves this, he or she can then get the conviction for vehicular manslaughter.

Should Mr. Fox be convicted of either DUI manslaughter or vehicular manslaughter, he can expect to face enhanced penalties, as his traffic record reflects 2009 convictions for operating a vehicle without a valid driver’s license and for driving while license suspended or revoked.

The changes to PIP law as we know it will have far reaching effects, for attorneys, for medical providers, for insurance carriers, and most importantly, for those injured in an auto accident.

This article is intended to explain the impact of the new law, which, after being signed by the Governor, becomes effective on July 1, 2012.

In reviewing the legislation, we will go through the bill section by section.

Section 1 amends FS 316.066 to require, in instances where an accident results in the death of or personal injury to; or where there is an indication of complaints of pain and discomfort by any of the passengers involved in the crash; where the crash renders a vehicle inoperable to the point that a wrecker is required to remove it; or if a commercial vehicle is involved, that a long form traffic crash report be completed by the investigating law enforcement officer.

The long form is to include the date, time and location of the crash, a description of the vehicles involved, the names and addresses of the parties involved, including all drivers AND passengers (specifically identifying the vehicle each passenger and driver were in), the names and addresses of any witnesses, the name, badge number and agency of the officer investigating the crash, and the names of the insurance companies of the parties involved.

If the accident does not qualify as one which requires a long form report, and the accident occurs on a public roadway (it is unclear what is required if the accident occurs on private property, like a mall parking lot) the law enforcement officer is to complete a short form report OR provide a driver exchange-of-information form, to be completed by all drivers AND PASSENGERS, and requires information similar to that required on the long form be provided.

It is worth noting that the language in the bill is silent on whether law enforcement is required to complete a long form report if the accident occurs on private property.

Both the long form and short form reports are to be submitted to the department, but are NOT required to be maintained by the law enforcement officer’s agency.

In an effort to prove that the legislature is actually concerned about addressing PIP fraud, the bill creates a direct-support organization known as the “Automobile Insurance Fraud Strike Force (strike force)”.

The purported purpose of the strike force is to support the prosecution, investigation, and prevention of motor vehicle insurance fraud.

The strike force is to be set up as a not-for-profit corporation incorporated under FS Chapter 617.  It is to be given a wide range of authority in which to operate and conduct business, however, all of the funds raised and expended are to be done solely for the purpose of “preventing and decreasing motor vehicle insurance fraud”…

The Board of Directors of this strike force is chaired by the state’s Chief Financial Officer, and is made up of two state attorneys, two representatives of motor vehicle insurers, two representatives of local law enforcement agencies, two representatives of health care providers who regularly make claims for PIP benefits, a private attorney who represents claimants, and an attorney who represents insurers.

Interestingly, the legislature provided NO funds for this strike force.  It did, however, provide that the strike force could accept contributions from insurance companies (like that doesn’t create a conflict of interest).

Once this legislation becomes effective (July 1, 2012), insurance carriers will not be required to amend their policies or to formally notify providers, claimants, or insureds of the change in law or of the change in the terms of their policy.

Probably the most significant change in the law involves the amount of benefits available to an insured injured in an accident.

Prior to this bill’s passage, each driver was required to carry $10,000.00 in PIP coverage.  Aside from payment of lost wages, this money was to cover the cost of all medical treatment received as a result of the injuries sustained in the accident, including treatment received from the injured party’s medical providers, for diagnostic testing (MRI, CT scan, etc.), and from those who provided massage therapy and acupuncture.

Under the new PIP law, effective January 1, 2013, $10,000.00 in medical benefits is ONLY available if the injured party sustained an “emergency medical condition”.

An “emergency medical condition” (EMC) is defined as a medical condition manifesting itself by acute symptoms of sufficient severity, which may include severe pain, such that the absence of immediate medical attention could reasonably be expected to result in any one of the following:

(a)  Serious jeopardy to patient health

(b)  Serious impairment to bodily functions

(c)  Serious dysfunction of any bodily organ or part.

None of these provisions are defined within the bill, nor are they defined in the American Medical Association’s Guidelines.

It is the AMA guidelines that are designed to assist physicians in objectively evaluating a claimant’s injuries and limitations.  Without a clear definition of what constitutes “Serious Jeopardy”, Serious Impairment” or Serious Dysfunction”, it will be up to physicians and insurance adjusters to make that determination, and as noted above, it is that determination that will decide whether the injured person is entitled to $10,000.00 or $2,500.00 in medical benefits.

It is expected that once this legislation becomes effective, doctors who are seeing an injured person for the first time will begin to incorporate these terms in their initial reports in an effort to make their patients eligible for the full benefits provided, relying upon the fact that the terms incorporated are very broad and subject to interpretation (for example, it could be argued that someone suffering from back pain, neck pain, TMJ or numbness in their extremities has suffered from an injury which poses serious jeopardy to the patient’s health).

The irony here is that one of the claims made for the cause of rising premiums has been PIP litigation.  Because of these new requirements for coverage, litigation will most certainly increase, as medical providers, patients, and insurance companies struggle to operate under these new provisions.

Like current law, medical benefits will continue to be paid at 80% of all reasonable expenses for medically necessary services.

However, if the initial services and care are not provided within 14 days after the accident, NO benefits will be provided.  Period.

This means that if a person is involved in an accident and decides to “tough it out” for two weeks, they will have waived their right to PIP coverage.  None of their medical treatment will be paid by their insurance.

Regarding those medical expenses paid at 80%, the insurer is only required to provide reimbursement for initial services provided by a physician at a hospital or in a facility that owns, or is wholly owned by a hospital, by a physician licensed under Chapter 458 or 459, by a dentist licensed under Chapter 466, or by a chiropractic physician licensed under Chapter 460, or for treatment provided by emergency transport.

For follow up treatment, upon referral by a recognized provider as set forth in the bill, follow up services and care CONSISTENT with the underlying medical diagnosis will be covered, including physical therapy upon referral by a provider as set forth in the bill.

Once again, this is another area where potential litigation could exist, as under the language of the bill, follow up services will only be covered if they are consistent with the underlying medical diagnosis.  That means that if, on initial examination, the insured only complained of neck pain, yet, after seeking treatment for neck pain, also received treatment for lower back pain, treatment related to the back may not be covered under the policy, nor will diagnostic tests which the carrier feels are unrelated to the initial complaints.

Massage therapy and acupuncture are also no longer covered by PIP, even if they are recommended by the treating physician or any other physicians.

The bill indicates that while Chiropractors are authorized to conduct the initial examination, if they do, the patient will no longer remain eligible for the full $10,000.00 in benefits available.

If a diagnosis of an EMC is made by an MD, who then authorizes follow up care with a Chiropractor, that Chiropractor may then provide treatment and receive up to the $10,000.00 in benefits available.

If an insured party does not receive an EMC diagnosis, then that insured will only receive $2,500.00 in medical benefits, no matter who they treat with, despite the fact that that person PAID for $10,000.00 in coverage.

How reimbursement for diagnostic testing occurs will depend on whether a diagnosis of EMC has been made.  If there is no EMC diagnosis, the injured party will be limited to $2,500.00 in available benefits for treatment AND for diagnostic testing, which means there will be very little benefits available for actual treatment.

If an insurance company only pays a portion of the claim submitted or rejects the claim, the carrier is required to provide an itemized explanation of benefits due.  Upon receiving the explanation, the person making the claim has 15 days to submit a revised claim in order for it to remain considered timely filed.

If the insurance company has reasonable grounds to believe that a fraudulent act has been committed, the insurer is required to notify the claimant in writing, within 30 days after submission of the claim, that the claim is being investigated for suspected fraud.

What the insurance carrier is NOT required to do under the bill is to specifically describe the alleged fraud or grounds for the belief that fraud was committed, nor is the insurance carrier required to make their allegation under oath or in the form of an affidavit.

Simply asserting that fraud has occurred provides the carrier with an additional 60 days before payment must be made.  No later than 90 days after the claim was submitted, it must be denied or paid, and if paid, the carrier is required to pay the claim with simple interest.

All claims for suspected fraud are to be reported to the Division of Insurance Fraud.

Under current law, if an insured, medical provider, or attorney representing the insured requests a PIP payout log, the carrier is required to provide the log to the requesting party.

This bill changes that.  Under the bill, while the insurer continues to be required to create and maintain  a log of benefits paid, it is not required to provide a copy of the log unless litigation is commenced, and then only within 30 days after receiving a request for a copy of the log.

A provision which will be of great interest to medical providers states that the carrier is not prohibited from using the Medicare coding policies and payment methodologies of the federal Centers for Medicare and Medicaid Services (CMS), including applicable modifiers, to determine the appropriate amount of reimbursement for medical services, as long as the coding policy or payment methodology does not constitute a utilization limit.

How the carrier treats its insured has always been a source of discussion between insureds (Plaintiffs) and insurers (Defendants).  Unfortunately, this bill gives even more power to insurers.  Under the language of the bill, the insured MUST COMPLY with a request from the carrier to submit to an examination under oath.

The scope of the examination is rather nebulous, with the language of the bill stating that it is “limited to relevant information or information that could reasonably be expected to lead to relevant information.”

Compliance with the request is a condition precedent to receiving benefits, meaning that if requested, the carrier does not have to pay benefits UNLESS the insured submits to the exam.

In an effort to attempt to look like this was a balanced bill, the bill does provide that an insurer that, as a general business practice, requests an examination under oath without a reasonable basis is subject to an action for unfair business practices.

Independent Medical Exams (IME’s) continue to be included in the law.  However, the bill states that the carrier is no longer liable to pay benefits on behalf of any person who unreasonably refuses to submit to an exam or “fails to appear” at an exam.  It goes on to state that the refusal to appear at two examinations raises a rebuttable presumption that the refusal was unreasonable.

This means that the burden of proof shifts to the insured to prove that his or her failure to attend two IME appointments was justified, as opposed to the carrier having to prove the failure to attend was unreasonable.

The ability to challenge a decision of the insurance company has also been impacted by the bill, as the bill will make it more difficult to obtain legal counsel based on the reduction in the amount of attorney fees which can be awarded.

Current law provided that in cases where the time and labor required, the novelty and difficulty of the question involved, and the skill requisite to perform the legal service properly was at issue, the attorney fees awarded received a “multiplier”, meaning that the amount awarded was multiplied by a “contingency risk” factor.

Under the bill, fee multipliers are no longer permitted.  Instead, the bill states that fees recovered must comply with the prevailing professional standards, cannot overstate the number of hours reasonably necessary to complete the case, and must represent legal services reasonably necessary to achieve the result obtained.

Additionally, either party may request the court issue a written finding, substantiated by evidence presented at trial that the attorney fee awarded complies with this new law.

Lastly, if there was any question that this bill is not, as claimed, about reducing fraud and thereby reducing the premiums paid by the public, the bill passed by the Legislature removed the requirement of a 25% rate reduction that was in the Senate version of the bill, opting for language that says that by October 1, 2012, if an insurance carrier requests rates which are NOT in excess of a 10% reduction, it must simply provide a detailed explanation of the reasons for the failure to achieve the 10% reduction.  The bill does not provide for any penalties for the insurance carrier for its failure to reduce the rates by more than 10%, nor does the bill provide direction to the Office of Insurance Regulation regarding what to do with the information provided or whether it has the authority to force a larger rate reduction from the carrier.

After reading this summary of the bill, it should be pretty clear that this bill could be called the Insurance Company Relief Act rather than an Act Relating to Motor vehicle Personal Injury Protection Insurance, as all of the personal injury protection that used to be in the law has been removed in favor and to the benefit of the insurance companies.

Welcome to the State of Florida, a wholly owned subsidiary of the insurance industry.

Along with the investigation of the business practices of these corporations, Attorneys General in states all around this country have begun to look into the same business practices within their respective states.

As reported by Danny Weil, reporter for Truthout, on February 2, 2012, one of the Country’s largest unions, the Service Employees International Union (SEIU) sponsored a webinar titled “Good for Wall Street – Bad for Students”.

The purpose of this webinar was to study and discuss the growing problems associated with for-profits.

The webinar attracted a diverse group of speakers which included several former employees of EDMC (Education Management Corporation), the second largest of the for-profits, behind only Apollo Group (which owns the University of Phoenix).

The webinar opened with the panel first defining the differences which exist between public higher education institutions, non-profit higher Ed institutions, and for-profit higher Ed institutions, and then proving a historical background of how federal law changes set the stage for the creation and growth of for-profits.

Despite the creation of for-profit institutions, it wasn’t until Ron Paige, President Bush’s Education Secretary, that many of the regulations which restricted certain business practices of the for-profits were removed and for-profit institutions began their tremendous growth.

One of the most compelling of the speakers was Kathleen Bittel, former EDMC recruiter and career service employee.

Ms. Bittel detailed the “sales pitches” and sales tactics and techniques that she was instructed to employ in attempting to enroll students.

Former EDMC instructor Jeremy Dehn discussed the inner workings of the educational institutions, noting that none of the faculty were tenured and often taught more classes than would be traditionally taught by a professor in a state college or university.

Professor Dehn also spoke about a “corporate culture” at for-profits, a culture which emphasized attendance rather than instruction. While it was the job of the recruiter to get the “asses in the classes”, it was the job of the teacher to keep the “meat in the seat”. If a student dropped out too soon, the for-profit would lose the federal funds associated with that student.

Dehn also noted that in order to keep costs down, curriculum was standardized, meaning that teachers were instructed to teach only what was on paper. Their input was not required or requested.

Kevin Kinser, associate professor in the Department of Educational Administration and Policy Studies at SUNY-Albany talked about how many of the “adjunct” utilized by for-profits never had learned HOW to teach and were simply technicians in their field or occupation. These adjuncts had no commitment to either the school or students, as many were simply “moonlighting”.

Jose Cruz, Vice President for Higher Education Policy and Practice and the Education Trust discussed the difference in cost between public and non-profit institutions and for-profit institutions, noting that the cost of an undergrad degree at for-profits ranged from $35,000 to more than $80,000. He also noted that non-profits and public colleges and universities spend upwards of 35 times more money on instruction than for-profits.

Graduation rates were also discussed, with many of the panelists describing how rates were manipulated, and how for-profits would change their attendance policy so as to make it more difficult for students to drop classes, thereby resulting in the student being charged in full for the class and continuing to be listed as enrolled.

Mike DiGiacomo, a former student at EDMC’s New England Institute of Art told his story of how his attempts to drop classes were thwarted by school policy. He also stated that most students had no idea about the amount of debt they would incur nor did they understand the obligations that came with the debt.

The question of how and if credits earned at the for-profits could transfer was also raised during this webinar.

While no solutions came from this webinar, it is critical that discussions, like what occurred at this webinar, continue to occur and litigation, if necessary, also occur until such time as the for-profit college and university industry is cleaned up.

Today, Representative Gaetz filed a “Strike-All” amendment. A strike-all amendment removes all language of the bill after the title and replaces it with new language.

The new language in the strike-all removes all language relating to emergency room sovereign immunity, and replaces it with language which adds two provisions aimed at placing further restrictions on a person’s ability to bring a claim for medical malpractice.

The first part of the amendment changes the standard or burden of proof in a malpractice claim against a provider for failing to order a diagnostic test that he/she should have ordered.

The current law provides for a “preponderance of the evidence” standard of proof.

A preponderance of the evidence standard means a person alleging malpractice must prove that there is just enough evidence to make it more likely than not that the facts the person seeks to prove are true.

Rep. Gaetz’ proposed amendment changes the burden of proof to “clear and convincing”. US Legal.com defines a “clear and convincing” standard of proof as

“more than a mere preponderance but something just short of conclusive.”

It goes on to state that

““clear and convincing” burden of proof generally requires proof which leaves no reasonable doubt concerning the truth of the matters at issue.” (emphasis added)

The impact of this amendment means that in order to prove that a doctor was negligent in failing to order a test, the claimant will have to prove that the doctor purposely did not order the test. That the doctor acted in bad faith by not ordering the test. Because if the doctor acted in good faith by not ordering the test currently, he or she has not acted negligently. This creates a very high burden of proof on the claimant.

The second part of the amendment creates the ability for the defendant or defense counsel (the Defendant’s attorney) to interview the claimant’s treating health care providers without the presence of the claimant or claimant’s legal counsel (ex parte communications).

Claimant’s counsel would not be afforded the same opportunity to meet with the defendant’s medical expert witnesses in an ex parte fashion.

Additionally, without the claimant’s attorney being present, there would be nothing preventing defense counsel for coercing, threatening, or otherwise trying to intimidate the health care provider from testifying on behalf of the claimant.

While this amendment does one thing good – in removing the language creating sovereign immunity for ER doctors, it is still bad, in that in changes the claimant’s burden of proof and allows for ex parte communications.

For those who are already victims of medical malpractice, you know how difficult it is to bring a medical malpractice claim here in Florida. Let’s not make it even harder.

The first crash, which occurred around 3:10 a.m., involved a Ford Expedition. The Expedition was headed north on U.S. 41 when the driver apparently lost control of the vehicle causing the vehicle to leave the road and overturn.

None of the three men in the vehicle were wearing their seatbelt, which might have prevent their ejection from the vehicle.

The three men, identified by Florida Highway Patrol as 29 year old Jesus Jaime, 27 year old Abdiel Cruz, and 29 year old Erick Venegas-Zuniga, all of Gibsonton, died at the scene of the accident. All three were fathers to young children.

Eight hours later, on S.R. 54 near Ernest Drive, a vehicle being driven by 22 year old Dustin Andrew Diaz failed to stop for traffic, resulting in a collision between his 2000 two-door Toyota and a 2008 four-door Volkswagen.

Unfortunately, Mr. Diaz’s vehicle, which, prior to the accident, had been traveling west on SR54, then veered into oncoming traffic where it collided with a 2002 four-door Toyota.

FHP indicated that all three people inside the 2002 Toyota – 90 year old Lavon Lakin Hartman of Zephyrhills, and 78 year old Charles W. Anken and his 77 year old wife, Georgianna L. Anken, of Holland Patent, NY, died at the scene of the accident.

Troopers reported that none of the three were wearing seat belts.

Mr. Diaz and the driver and passenger of the 2008 Volkswagen were all transported to area hospitals for treatment of injuries they sustained in the accident.

Over the years, Florida law regarding the use of seat belts has been significantly strengthened. What used to be a secondary violation (which means that the police could not stop you solely because you failed to wear your seat belt) has now become a primary violation (meaning the police can stop you solely because of your failure to wear a seat belt).

Florida Statute 316.614 says

“(4) It is unlawful for any person:

(a) To operate a motor vehicle in this state unless each passenger and the operator of the vehicle under the age of 18 years are restrained by a safety belt or by a child restraint device pursuant to s.316.613, if applicable; or

(b) To operate a motor vehicle in this state unless the person is restrained by a safety belt.

(5) It is unlawful for any person 18 years of age or older to be a passenger in the front seat of a motor vehicle unless such person is restrained by a safety belt when the vehicle is in motion.”

A violation of this statute constitutes a nonmoving violation.

Equally important, if you are ever involved in an auto accident in which you were injured and were not at fault, and you failed to wear your seatbelt at the time of the accident, your failure can be used against you in Court or for settlement purposes.

FS 316.614 Section 10 says that a violation of the provisions of this statute

“may be considered as evidence of comparative negligence, in any civil action.”

As such, a jury may reduce its verdict by whatever percentage it feels your injuries would have been reduced HAD you been wearing a seat belt.

Oh yea, one other thing. You stand a better chance of surviving the accident.

With the invention of “smart phones”, everybody isn’t just talking while on the phone. Now we see them texting, emailing, taking pictures, videos, surfing the internet or utilizing their phones as GPS’s.

While the benefits of this new technology are indisputable, there are some negatives which have accompanied this technology.

Because of this technology, we have seen a deterioration in the quality of and quantity of interpersonal communications.

We have also seen a dramatic rise in auto accidents caused by driver distraction resulting from cell phone use and the gamut of available smart phone uses.

In an effort to address the growing concern over accidents resulting from cell phone use while driving, several bills have been filed for this legislative session which, in their own manner, attempt to deal with this growing problem.

HB 39 by Representative John Patrick Julian, seeks to create a moving violation for using a “handheld mobile telecommunications device”. It allows a law enforcement officer to cite a person for using a handheld device while the officer observed that person committing a moving violation.

The bill defines a handheld mobile telecommunications device as a “wireless telephone or other device used to access the services of a commercial mobile radio service for the purpose of sending or receiving voice, text, or other data, including, but not limited to, computer data, electronic mail, electronic messages, games, music, images, and video.”

Finally, the bill provides for an enhanced penalty if the moving violation occurred within a school zone.

This bill was assigned to three House committees, and to date, has not received a hearing in any of the three committees.

The second bill filed was HB 187 by Representative Irv Slosberg. This bill does several things. First, it prohibits a person under the age of 18, from using any type of hand-held cellular telephone or other hand-held electronic communications device while in physical control of a motor vehicle.

The bill further provides that a person “in actual physical control of a school bus transporting any student” is prohibited from using any type of hand-held cellular telephone or other hand-held electronic communication device”

There are two exceptions to these two provisions. The first exception is if the device used is designed for hands-free use and the person is using it in that manner. The second exceptions occurs if the use occurs when the vehicle is stopped and the engine is not running.

Another significant portion of this bill requires minors to display a DOT issued placard, visible from the front and rear of the vehicle which bears a warning that the person must display the placard at all times while operating the motor vehicle.

Lastly, the bill prohibits a person under the age of 18 from operating a motor vehicle with more than one passenger under 18, unless those passengers are siblings or children of the driver.

This bill also was assigned to three House committees. To date, it too has not been heard in any of the assigned committees.

The last of the three bills addressing this issue was HB 299. This bill was sponsored by Representative Pilon. It contained the catchy title “Florida Ban on Texting While Driving Law.”

The bill included language clearly stating its intent to “improve roadway safety”, “prevent crashes”, and “Reduce Injuries”.

It prohibited persons from operating a motor vehicle while “manually typing or entering multiple letters, numbers, symbols, or other characters into a wireless communication device or while sending or reading data in such a device for the purpose of non-voice interpersonal communications..”

The bill defined a “wireless communications device” as “any device that is designed or intended to receive or transmit text or character based messages, access or store data, or connect to the Internet….”

A motor vehicle parked and not being operated was not subject to this prohibition.
Additionally, this bill would not apply to a motor vehicle operator who was; performing official duties as an operator of an authorized emergency vehicle; reporting an emergency or criminal or suspicious activity; receiving messages that are related to the operation or navigation of the vehicle; safety related information; data used primarily by the vehicle; or radio broadcasts.

It authorized law enforcement officers to stop a motor vehicle and issue a citation as a secondary offense for persons texting while driving.

A user’s billing records can be admitted as evidence to determine whether a violation occurred.

Like the previous two bills, this bill was also referred to three committees and has not received a hearing in any of the referred committees.

As much as texting or talking without a hands-free device continues to be a safety issue here in Florida, it does not appear that any of these bills will become law during this legislative session.

I asked her if she knew what was causing the traffic delay. She indicated that there had been an accident somewhere north of where she was, and that traffic had been at a virtual standstill for hours.

After looking into the cause of the traffic backup, I learned that the accident in question was not merely some ordinary, run of the mill accident. No, this accident was much worse.

It occurred on a stretch of roadway that is normally serene, near the Paynes Prairie State Preserve.

This accident involved more than a dozen cars and six tractor trailers. It was clearly not a serene scene that afternoon.

This accident, which will go down in Florida history as one of the worst traffic accidents, took the lives of 10 people, with another 18 being hospitalized for their injuries.

According to reports by the Florida Highway Patrol, the multiple vehicle accident took place somewhere around four in the morning.

Officials blamed fog and smoke which had apparently reduced visibility on the road to practically nothing, for causing the massive pileup and loss of life.

According to the Tampa Bay Times, visibility before the accident had been so bad that the highway patrol had temporarily closed the road to traffic, but, sometime just prior to the accident, reopened the road.

Rescuers who first arrived at the scene of the accident indicated that they could not even see their own hands.

The northbound lanes of I-75 were not reopened until approximately 5:40 p.m.

When an accident this horrific occurs, people want to point the finger at someone. Someone had to be at fault for this accident.

Was it the Florida Highway Patrol, who reopened the road after closing it because of visibility problems?

Was it one or many of the drivers involved in the accident, for failing to pull off the road until the conditions improved?

Does the law help clarify who might have been at fault for causing the loss of lives and multiple injuries?

Let’s look at what Florida law says to see if it provides any clarification.

We start with Florida Statute 316.1925 – Careless Driving. This is a kind of catch-all statute that provides instruction when no specific statute applies. It says that

“(1) Any person operating a vehicle upon the streets or highways within the state shall drive the same in a careful and prudent manner, having regard for the width, grade, curves, corners, traffic, and all other attendant circumstances, so as not to endanger the life, limb, or property of any person. Failure to drive in such manner shall constitute careless driving and a violation of this section.”

The key language in this section which could be applied to this accident is the part that says “in a careful and prudent manner, having regard ….for all other attendant circumstances.”

Now I want you to think about this. It’s one thing to slow a car down when the conditions of the road quickly change. It’s a whole other ballgame to slow a semi-truck down quickly when road conditions suddenly change.

So under this statute, an argument could be made that in conditions which were as bad as these appeared to be, merely continuing to drive a truck might constitute careless driving.

Did all the vehicles on the road in the early morning hours have their lights on so that they could be seen? That is a fair question to ask. Florida Statute 316.217 defines when lighted lamps are required. Section (1) says that

“Every vehicle operated upon a highway within this state shall display lighted lamps and illuminating devices as herein respectively required for different classes of vehicles, subject to exceptions with respect to parked vehicles, under the following conditions;

(b) During any rain, smoke, or fog.”

Even if the sun had begun to come out that early morning, in conditions that included smoke AND fog, headlights should have been on each and every vehicle on the road. Failure to engage the headlights during these conditions could have contributed to the occurrence of the accident.

Then there’s Florida Statute 316.185, Special Hazards. This little known statute states that even if you are driving your car lower than the prescribed limits (meaning, on a 70 mph road, you are driving at 55 mph), this fact alone does not relieve you of your duty to further decrease your speed

“….when special hazards exist or may exist with respect to pedestrians or other traffic or by reason of weather or other roadway conditions, and speed shall be decreased as may be necessary to avoid colliding with any person, vehicle, or other conveyance on or entering the street in compliance with legal requirements and the duty of all persons to use due care.”

Therefore, under this statute, for those drivers who decided they were going to continue driving despite the conditions which existed, those drivers were required to reduce their speed down until they could continue on without causing or being involved in an accident.

So, based on these cited statutes, an argument can be made that some of the drivers involved in this accident may have caused or contributed to the accident’s occurrence.

But what about the Florida Highway Patrol? Do they have any responsibility for this accident, and if so, what are they obligated to pay?

Florida Statute 768.28 – waiver of sovereign immunity in tort actions, is the statute which governs governmental entities and their liability.

Specifically, this statute provides that the state, for itself and its agencies (like FHP), waives its sovereign immunity for liability for torts caused by the negligent or wrongful act or omission of any employee of the agency while acting within the scope of the employee’s office.

Therefore, under this statute, if one of the persons injured in this accident were able to prove that the Deputy who made the decision to reopen the roadway prior to the accident did so wrongfully or negligently, then an action could be brought against the agency the Deputy worked for (in this case, the FHP).

BUT, that same statute SIGNIFICANTLY limits the amount that can be recovered by an injured party against the agency. Section 5 of FS 768.28 says:

“ Neither the state nor its agencies or subdivisions shall be liable to pay a claim or a judgment by any one person which exceeds the sum of $200,000 or any claim or judgment, or portions thereof, which, when totaled with all other claims or judgments paid by the state or its agencies or subdivisions arising out of the same incident or occurrence, exceeds the sum of $300,000.”

This means that IF an action is brought against FHP, and IF a jury were to determine that the Deputy was, in fact, negligent in reopening the road, the MAXIMUM all of the Plaintiffs could recover from the state is $300,000.00. The only way to recover an amount in excess of $300,000.00 would be if the jury awarded a verdict in excess of that amount and the Legislature appropriate the excess judgment to the Plaintiffs.

Under this same statute, no action can be brought against the individual Deputy unless he/she acted in bad faith or with “malicious purpose or in a manner exhibiting wanton and willful disregard for human rights, safety, or property”. A high burden to prove.

For those who were injured or who lost a loved one in this tragic accident, our thoughts and prayers go out to them, as they deal with their pain, suffering and grief while they wait for the full results of the investigation.

Most provide quality health care. Unfortunately, not ALL do. There are those hospitals and ER physicians who, for whatever reason, do not provide the level or quality of care that falls within the acceptable medical standards.

Dr. Frank Lender is involved in an accident and sustains serious injuries. As a result of this injuries, he is transported from the scene of the accident to the emergency room at Parott General Hospital for treatment of his injuries.

Upon Dr. Lender’s arrival at the emergency room of Parott General Hospital, he is met by a nurse who places him in an room, closes the door to the room, and tells him that someone will be in to see him momentarily.

Little does Dr. Lender know that on the day and time of his arrival at the hospital,, the emergency room at Parott General is understaffed, as several doctors and nurses are out with illnesses.

After waiting for an hour in excruciating pain, someone finally comes in to examine Dr. Lender. Despite his complaints about the pain in his neck and back, because the ER was so busy, x-rays were only taken of Dr. Lender’s neck, not his lower back.

Because the x-rays of Dr. Lender’s neck came back negative, he was discharged with a recommendation to rest and follow up with his primary care physician.

His wife, who by now had arrived at the ER, drove Dr. Lender home where he attempted to follow ER orders by resting. Unfortunately, while simply sitting on his couch resting, his left leg started to go numb. The numbness got increasingly worse to the point where he could no longer even walk.

His wife immediately drove him back to the ER, this time, at Central Hospital. After x-rays of his low back are taken, Dr. Lender learns that he has a lumbar disc which has completely blown, and worse, the physicians have told him that his failure to receive treatment at Parott General has caused the paralysis he is experiencing, and that the paralysis will become permanent.

What are Dr. Lender’s legal rights in this circumstances? Does he have the right to file suit against Parott General Hospital and the doctors and nurses who treated him, and if so, are there any limitations on those rights?

The answer is yes, Dr. Lender does have the right to file suit.

However, in order to bring an action against the doctor and hospital, Dr. Lender will have to prove that they acted with “a reckless disregard for the consequences so as to affect the life or health of another.” That is a VERY difficult burden to prove and to meet.

Assuming Dr. Lender is able to prove that the ER physician acted with reckless disregard, Florida law will limit the amount he can recover in noneconomic damages to $150,000.00 per claimant, $300,000.00 per incident (noneconomic damages are damages for pain and suffering, loss of enjoyment of life, etc.) is $150,000.00.

At least, under current law, Dr. Lender will still be entitled to recover all of his medical bills, which totaled $350,000.00 and are expected, over his lifetime, to cost him an additional $2,500,000.00, and the loss of income he will sustain because he is no longer able to work, which is estimated at $5,000.000.00 over his lifetime..

So how could things possibly get worse if something in the ER goes wrong?

Because of HB385. This bill, filed by Representative Matt Gaetz, makes a formal legislative finding that ER physicians are agents of the government performing a government duty. By making this formal finding, ER physicians will have state sovereign immunity.

Sovereign immunity protects governments from being sued without their consent and imposes a $200,000.00 limit on the government’s liability to a single person ($300,000.00 total liability on claims from a single incident). That limitation isn’t just for non-economic damages, it is a cap on ALL damages.

So in the case of Dr. Lender, if he received the negligent care at Parott General after Rep. Gaetz’ bill passed, the maximum recovery Dr. Lender would receive for his injuries, for his medical bills (current and future), for his lost wages (current and future), and for his pain and suffering is $200,000.00. That’s it.

It doesn’t matter that over his lifetime he will lose $5,000,000.00 in lost wages because he can’t work due to his injuries. It doesn’t matter that his medical bills totaled more than $350,000.00 and are expected, over his lifetime, to exceed $2,000,000.00.

HB385 will limit his recover to $200,000.00. Period.

Better hope that no mistakes happen if you’re ever in the ER.