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As Palm Beach medical malpractice lawyers, we know that some of the most common claims stem from diagnostic errors. These include situations like failure to identify a serious disease or diagnosing you with one condition when really you have something else. In these situations, a doctor’s deviation from the standard of care can cause a patient to lose critical time in treating the actual condition. Sometimes, these mistakes cost patients their lives. medical malpractice diagnosis error

But what if you’re diagnosed with something you never actually had? On one hand, you might be relieved to find out you’re disease-free. But on the other hand, you may have undergone numerous painful treatments – not to mention the emotional and mental anguish of such a diagnosis – only to find out it was all wholly unnecessary.

The trauma in that situation is valid. However, it might not be legally actionable. That’s because of the lack of permanent harm.

The reality is that medical malpractice lawsuits are very expensive. They require expensive expert witnesses, a lot of attorney time and energy, etc. And attorneys accept these cases on a contingency basis, meaning they aren’t paid unless and until the plaintiff wins. Even then, most are accepting a percentage of the overall damage award. If there’s no permanent harm suffered, that means the potential damage award dwindles substantially – and fewer attorneys are going to be willing to take the risk.

But we do recognize this is incredibly frustrating for patients who have had to endure these ordeals. The Tampa Bay Times recently delved into this issue, highlighting several cases of diagnostic errors that that led to patients believing they had a serious illness when they actually didn’t.

In one case, a woman was told two days before Christmas that laboratory tests confirmed a type of cancer in her lymphatic system that usually spreads fast to other organs. Her husband was devastated. They canceled holiday celebrations. They cried together a lot. They talked about the wife’s final wishes, and how the husband would manage – financially and otherwise – without her. They canceled an expensive, non-refundable, two-month vacation they had planned so they could focus on her treatment. She upgraded her medical insurance policy to one that was double what she’d previously had. She paid more than $4,000 in tests and consultations. Out of pocket, the couple estimates they were out about $20,000.

But then two months later, a new test result shocked them both: She was completely cancer-free. She’d been misdiagnosed, and as it turned out, she didn’t need any treatment at all.

When she contacted several injury lawyers to see about filing a medical malpractice claim, each turned her down. All cited the fact that she’s currently healthy and whatever damages she did collect probably wouldn’t cover the amount it would take to bring the case to court.

As medical malpractice attorneys, we do understand the deep anger and frustration and desire to hold medical providers accountable when they make major errors. But the reality of such a low damage award means the statutorily-required expert witness would get paid, the lawyer would get paid, but the client probably wouldn’t. Most medical malpractice lawyers would find taking such a case to be unethical. But neither can we agree to take less than our regular fee for our work – or ask the expert witness to do so. Continue reading

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Florida slip-and-fall lawsuits are not easy to win – especially since the state modified F.S. 768.0755, requiring plaintiffs to prove actual or constructive knowledge of the dangerous condition that led to the accident. But as a recent $8 million Florida slip-and-fall verdict proves, prevailing isn’t impossible. Florida slip-and-fall lawyer Palm Beach

According to media reports, the 48-year-old patron was in the bathroom at the rear of a Hollywood fast food restaurant in 2019 when he slipped and fell on a wet, foreign substance on the floor. The fall caused him to suffer serious injuries to his back, which required surgery. Then after undergoing surgery, he suffered a colon perforation. Not only were his medical bills sky-high, but he was forced to leave the workforce, walking away from a career that had been a major part of his personal identity.

He was awarded $7.8 million in damages, which includes compensation for medical expenses and lost earnings. The defendant in the case, a franchise owner, has filed a motion for a new trial, alleging there was no real evidence that the management team at the restaurant had been told or should have known about the slippery conditions on the bathroom floor.

What Exactly Must Be Proven in a Florida Slip-and-Fall Case?

In order to win a Florida slip-and-fall lawsuit, the person who is injured (or their surviving loved ones) must establish: Continue reading

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Winning a Florida motorcycle accident claim just got harder for helmetless riders – even when the crash isn’t their fault. This is thanks to a sweeping Florida tort reform measure that shifted the way our courts hold negligent drivers accountable. West Palm Beach motorcycle accident lawyer

To be clear, Florida’s motorcycle helmet law remains unchanged. F.S. 316.211 allows adults over 21 with at least $10,000 in medical insurance benefits for self-sustained injuries to operate or ride on a motorcycle without a helmet.

The issue is the passage of Florida HB 837 and companion bill SB 236, which changed Florida from a state that follows a fault system of pure comparative negligence to one of modified comparative negligence with a 51 percent bar.

In layman’s terms: More than one person can be at-fault for an accident that results in personal injuries. A pure comparative negligence is a system of fault whereby everyone is financially responsible for their own share of the blame in an accident. So if you’re 35 percent at-fault for your own injuries, you can still sue the other person at-fault to collect on the remaining 65 percent. With pure comparative fault, you can be 99 percent liable/legally responsible for your own injuries, and still collect the remaining 1 percent from the other at-fault party. (That’s an extreme case that certainly isn’t ideal, but you aren’t prohibited from collecting damages inflicted by someone else’s wrongdoing just because you were also responsible.) Florida – up until March 2023 – adhered to a system of pure comparative fault for accidents and personal injuries.

HB 837 transformed Florida into a state that adheres to a system of modified comparative fault with a 51 percent fault. This means you can still hold the other negligent person accountable for their share of fault, even if you’re to blame – but only if your percentage of the fault doesn’t exceed 50 percent. If your share of legal responsibility is 51 percent or higher, you are not able to collect anything at all – even if they are 49 percent responsible.

Now, this impacts ALL motorists in Florida. However, it will have an outsized impact on motorcyclists who don’t wear helmets. The reason? Continue reading

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If a school principal opened the doors to adult sexual predators and gave them the means and access to regularly communicate with students on school grounds – there would be no question of legal liability for whatever harm was inflicted on those children as a result. But what if the means and access was via a school laptop? Do schools bear a legal duty to monitor district-owned electronic devices to prevent predators from using them to gain access to kids?Florida sexual abuse lawsuit school district laptops

Plaintiffs in a newly-filed Florida sexual abuse lawsuit against a county school board say: Yes.

According to the Miami Herald, a mother is suing a Florida school district because she said her daughter met a predator online while using a school-issued laptop. The 11-year-old was allegedly groomed, kidnapped, and sexually assaulted by the man who first made contact with her through a social media app that she used regularly on her school laptop. The laptops were issued when the school district shifted to remote learning during the pandemic. During this time, there were reportedly on protections to block social media on the devices.

Early into the start of the 2020-2021 school year, the girl was contacted by a 26-year-old man on social media. According to the civil complaint, the man expressed a desire to have a romantic/sexual relationship with her, said he wanted her to move into his home, and he planned to tell everyone that she was a young relative of his. On more than one occasion, he tried to get her to leave home, promised to buy her a new phone, and asked her to provide illicit photographs of herself. Again – all of this was done on her school-issued laptop, on school days, and during school hours. Continue reading

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“How much is my Florida injury case worth?”Palm Beach personal injury lawyer

It is probably one of the top three questions our Palm Beach personal injury lawyers get asked right off the bat – and it’s not always a simple thing to answer.

As experienced civil trial lawyers, we can typically provide a general ballpark estimate of case value based on certain elements we’ll want to explore as soon as we start investigating. That said, it’s only an estimate, and there’s a lot of room for that figure to fluctuate higher or lower depending on what’s revealed during the discovery phase.

But here are some of the basic aspects we investigate before giving a cursory answer to that question: Continue reading

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A state bill that would have all but eliminated most Florida nursing home wrongful death claims has (thankfully) died in committee. However, our West Palm Beach nursing home injury lawyers wouldn’t put it past the insurance and nursing home industries to push lawmakers to pick up the torch again in another future session.Palm Beach nursing home abuse lawyer

State lawmakers recently prevailed in a series of heavy-handed tort reform efforts – passing laws for shorter personal injury case statutes of limitations, reduced damages and attorney fee coverage for injured claimants, higher than ever proof burdens, and less accountability for insurers acting in bad faith. All of this, of course, makes it harder for those seriously injured as a result of another’s negligence to obtain fair compensation, and is unlikely to do much in the way of lowering insurance premiums (the justification given for many of these measures).

The Florida nursing home wrongful death bill would have been one of the most extreme changes. For the sake of the well-being of all nursing home residents in this state, we’re very glad that it did not pass. But given the momentum of this latest session, we’re not so sure we won’t see this issue resurrected.

House Bill 1029 and its companion Senate Bill 1304 would have significantly raised the bar for nursing home wrongful death cases – to those required of medical malpractice wrongful death cases. Specifically, it would limit claimants in nursing home wrongful death lawsuits in Florida solely to surviving spouses and/or surviving children under the age of 25.

Now, this standard is problematic for medical malpractice cases too, and our civil trial lawyers have voiced our dismay with this too. Existing medical malpractice law that significantly restricts claimants essentially means there is no consequence for medical negligence resulting in a patient’s death if the person who died isn’t married or doesn’t have kids younger than 25.

This same standard applied to nursing home cases would have been disastrous, all but wiping out most claims.

Think about it: Continue reading

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Over the past several years, numerous high-profile sexual assault and sexual abuse lawsuits have raised public awareness about both the realities and long-term consequences of this trauma. It’s part of the reason so many states have passed look-back laws or lifted the statute of limitations for claims stemming from alleged child sex abuse. The recent liability verdict in a civil case sex abuse lawsuit against former President Donald Trump by prominent writer/advice columnist E. Jean Carroll after a decades-old dressing room encounter has raised a lot of questions about why this claim was filed now, the grounds on which Carroll prevailed, and what it means for other alleged victims of sexual assault and abuse – particularly those whose abuse happened decades ago. sex abuse lawyer West Palm Beach

For those who are unfamiliar with the case, Carroll alleges Trump raped her in a department store dressing room in the mid 1990s. She first spoke out about what happened in 2019, while Trump was president. (Prior to his election, dozens of women accused him of sexual harassment and/or assault occurring over decades, but none had resulted in criminal charges or a civil liability verdict.)

Trump denied her claims, said he’d never met her, did not find her attractive, and called her a liar. She sued him for defamation. When New York state passed the Adult Survivors Act, giving sex abuse victims a one-year window to sue attacker for assaults that took place years ago, Carroll filed a second claim accusing Trump of rape, sexual abuse, and defamation. (Her claim, filed 30 minutes after the law went into effect, was the first under the law to go to trial.)

At trial, other women testified to similar assaults by Trump around the same time frame. A jury ultimately found him liable for sexual abuse and defamation, and ordered Trump to pay both compensatory and punitive damages of $5 million.

As longtime West Palm Beach civil trial lawyers representing survivors of sexual assault and abuse, it’s important to address some of those issues that appear to be causing some confusion in public discussions on these types of cases.

Let’s start with one of the most pervasive questions:

Why now?

Continue reading

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Florida personal injury claims for premises liability – that is, the duty owed by property owners to those who enter – often hinge on the role of the claimant. That is, were they invited as a member of the public or for the financial benefit of the property owner? They’re invitees, owed the highest duty of care. Were they welcomed or allowed onsite as a social guest or of their own volition for their own convenience? They’re licensees, owed a moderate duty of care. Or were they trespassers? With the exception of some situations involving children, these individuals are owed the lowest degree of care. Florida premises liability lawyer

So while property owners do have a responsibility to keep their site reasonably safe, measuring the reasonableness of their actions (or lack thereof) usually comes down to what the injured party was doing there in the first place.

Invitees would include shoppers at a grocery store, fans at a rock concert, a package delivery person, or residents attending a city council meeting. The specific duty of care owed to invitees in Florida is to maintain the property in reasonably safe condition AND to warn of any known hazards that could cause harm. This includes taking reasonable steps to discover and fix any dangerous conditions on the property. As our West Palm Beach injury lawyers can explain, property owners are expected to exercise ordinary care in maintaining the premises, which means acting in a reasonably prudent manner to prevent foreseeable injuries to invitees.

Licensees are those who enter a property with the owner’s permission, but for their own purposes. As noted in the 1953 Florida Supreme Court ruling in Stewart v. Texas Co., the owner owes no duty to licensees beyond not willfully or wantonly causing harm or setting traps or intentionally expose them to danger. Property owners do not have a duty to keep the premises safe for those who come there solely for their own convenience or pleasure, yet aren’t expressly invited or induced – even though entry is permitted. Active vigilance to keep the property safe isn’t required of property owners for licensees.

Trespassers, similarly, are not owed a duty of care beyond not being intentionally exposed to harm. (The exception is young children under the attractive nuisance doctrine, occurring when a feature of the site is attractive to youths who don’t fully understand the danger.)

It’s important to note that the specific circumstances of each case can affect the application of the duty of care. Different types of properties, such as residential, commercial, or recreational, may have varying standards of care depending on the nature of the premises and the activities taking place. Continue reading

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The injuries one sustains as a result of South Florida medical malpractice may last forever – but the time window in which you must initiate legal action does not. West Palm Beach medical malpractice lawyer

As our Palm Beach medical malpractice attorneys can explain, there is generally a two-year statute of limitations for Florida medical malpractice claims. Generally, if you do not file your lawsuit within this window, your claim may be time-barred. These limits are set forth in F.S. 95.11(4)(b).

Although it’s true that often these cases are resolved through settlement negotiation, they are more complex than other types of personal injury claims. They require expert witnesses, extensive evidence, and a great deal of preparation. It’s often necessary to file a lawsuit just to preserve the claim so that we can continue negotiations. Settlements can often be beneficial to claimants because they can lead to faster resolutions and save the time/expense/emotional toll of a trial. Still, it’s important when hiring a Florida medical malpractice lawyer that you choose one with extensive experience, a track record of success in similar cases, and who is unafraid to take a case all the way to trial if necessary.

Note that the statute of limitations varies from state-to-state, so if you recently moved here from elsewhere, the time limits and requirements were probably different.

Are There Any Exceptions to the Two-Year Limit?

There are exceptions to the two-year statute of limitations for Florida medical malpractice claims, but they are limited in scope.

The clock starts ticking usually on the date of the incident. However, it might not start until the date you discovered or should have discovered the incident through the exercise of due diligence. So perhaps you were harmed by medical malpractice, but you didn’t know – and couldn’t have known – that was the cause right away. In those situations, the court will ask at what point you reasonably should have become aware there was an issue.

Despite this, there is a hard stop of four years from the date the incident occurred. This is referred to as the statute of repose. So let’s say you don’t discover your injuries or that the source of your injuries was medical malpractice until three years after it happened. In that situation, you would have just one year in which to file your claim.

To file any Florida medical malpractice case beyond four years, the fact pattern needs to reflect one of the following situations: Continue reading

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If you’re ever in a South Florida bicycle accident with someone driving a car, one avenue through which you might obtain compensation is through your own personal injury protection (PIP) insurance that you purchase as part of your regular car insurance. As our Palm Beach personal injury lawyers can explain, PIP can be applied in bicycle accidents – even if you weren’t driving – so long as the incident occurred in traffic. Technically, bicyclists aren’t required to carry any insurance at all in Florida. However, it’s a good idea – particularly if you enjoy road cycling. And if you have a car, it’s easy, as PIP (which can be paid regardless of fault in the accident) is already required coverage for registered motor vehicles in the state. However, any PIP claims must be accurately and timely filed. Palm Beach injury lawyer

Underscoring this point was a case last year before Florida’s 5th District Court of Appeals.

In the matter of USAA Casualty Insurance Co. v. Mikrogiannakis, a bicyclist was struck by a car in Seminole County (Central Florida), and sought medical treatment for his injuries. During that initial visit, his registration form listed his contact information and the name of his personal injury lawyer – but not the name and address for a PIP insurer. That field had been left blank. Over the course of several months, he continued to receive medical treatment from that same provider.

Roughly 18 months after administering these treatments, the medical provider began submitting claims to USAA, the bicyclist’s PIP insurer. However, USAA denied the payments, citing failure to comply with F.S. 627.736(5)(c). The statute is extensive (which is why we recommend consulting with a personal injury lawyer if you aren’t sure of your rights), but that provision in particular refers to the requirement that any bills for emergency services or care must be submitted to the PIP carrier within 35 days (possibly for treatment rendered up to 75 days). The bills in this case weren’t submitted for a full 18 months. Continue reading

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