Miami Accident Lawyer Blog

June 18, 2013

Study Published By Leading Research University Estimates Thousands Of Preventable Surgical Errors Occur Annually

According to a study released late last year by the Johns Hopkins School of Medicine, approximately four thousand surgical “never events” occur annually in the United States. The study defines “never events” as those incidents for which there is universal professional agreement that should never occur during a surgery. The study, run by associate professor of surgery Dr. Marty Makary, attempts to quantify the extent of medical malpractice that occurs on a weekly basis across America.

According to the study’s estimations, a foreign object is left inside a patient during an operation thirty-nine times every week, an incorrect procedure is performed twenty times every week, and the wrong body part is operated on twenty times every week. The study also approximates that a staggering 80,000 never events have taken place in hospitals from 1990 to 2010, however, the actual quantity of such occurrences is likely higher.

Using the National Practitioner Data Bank (“NPDB”), a federal database comprised of medical malpractice claims, the study analyzed nearly 10,000 medical malpractice judgments that were paid out between 1990 and 2010. With this data, the study was able to estimate that never events happen in the United States at a rate of 4,044 per year. The NPDB data compiled by researchers revealed that malpractice judgments and claims totaled $1.3 billion during the period covered by the study. In the cases studied, death occurred in 6.6% of patients, permanent injury in 32.9%, and temporary injury in 59.2%.

June 14, 2013

Shuckers Dock Collapses into Water Injuring Customers

by Gerson & Schwartz, P.A.

Local long time hang out, sports bar and restaurant, Shuckers, located on the 79th street Causeway in Miami Beach, became a scene of chaos and serious injuries. Last night, the entire dock where patrons were eating , drinking, and watching the NBA Miami Heat Play off game, collapsed, suddenly. Innocent victims, including children went plunging into Biscayne bay of North Bay Village, along with their tables, chairs , foods and beverages. In some cases, patrons were trapped in between the dock planks or received injuries from flying tables and chairs.

This scene quickly turned into a rescue mission. As, bar tenders, wait staff, and fellow customers jumped into the water to assist victims. Over 50 fire rescue vehicles were dispatched and the entire 79th street Causeway was closed down for an extended period of time. The deck collapsed just as the Miami Heat scored , causing customers to jump out of their seats with excitement. Reports indicate that 24 people were injured, including a mother and her baby.

Miami personal injury attorneys can bring legal action against establishments such as Shuckers in premises liability accidents such as in this case as it appears that the dock and supporting structures were either negligently constructed or negligently maintained. According to published reports, there is a debate as to whether or not Shuckers had its dock inspected, despite representing that a routine inspection took place just 6 months ago.
Incidents like this should never occur, clearly, the dock at Shuckers was unsafe and customers’ lives were put at serious risk. The individuals who were injured can file law suits on their own behalf for pain, and suffering due to serious injuries they have endured.

Property maintenance and upkeep of structures such as the dock used by Shucker’s customers for dining is a reasonable legal requirement. A qualified injury that specializes in premises liability accidents can assist injured parties collect money damages for clients who have been the victims of such incidents.Gerson & Schwartz,PA, has handled collapsing dock cases in the past. Several years ago, Gerson & Schwartz, PA received a 2 million dollar verdict in a similar case tried in Atlanta, Georgia.

If you or someone you know were injured in a premises liability accident, due to the negligence of contact the personal injury law offices of Gerson & Schwartz, PA today. Contact (877) 475-2905 today or info@gslawusa.com for a free consultation today.

June 8, 2013

Florida Ranked In Top Ten For Dog Bite Claims

by Gerson & Schwartz, P.A.

Recently, WFLA reported that, according to a report by insurance company State Farm, Florida ranks in the top ten states for dog bite claims. According the report, in 2012, Floridians made 123 dog bite claims which resulted in pay-outs of $7.1 million, ranking Florida eighth in the country. California was ranked number one, followed by Illinois and Texas at two and three. State Farm paid-out approximately $108 million for dog bite claims in 2012, and estimates there are more than 4.7 million dog bites each year.

Despite a common misconception to the contrary, dogs are not permitted one “free bite” under Florida law and, in fact, the law states quite the opposite. Florida Statutes Section 767.04 states in part:

The owner of any dog that bites any person while such person is on or in a public place, or lawfully on or in a private place, including the property of the owner of the dog, is liable for damages suffered by persons bitten, regardless of the former viciousness of the dog or the owners’ knowledge of such viciousness.

June 6, 2013

New Jersey Woman’s Federal Lawsuit Against Miami Beach Hotel Raises Premises Liability Questions

by Gerson & Schwartz, P.A.

According to a recent federal civil lawsuit filed by New Jersey resident Anna Burgese, she was attacked by prostitutes in the lobby of Miami Beach’s the W Hotel earlier this year. The suit claims that Burgese was “grabbed from behind and thrown with great force into a stone wall head-first” and “tackled to the ground and struck” by a group of prostitutes that had mistaken Burgese for their competition.Burgese, along with her husband Joseph Burgese, are suing Starwood Hotels and Resorts, the parent company of the W Hotel, for negligence, premises liability, assault, civil liability for criminal activity, and loss of consortium. According to the complaint, the W Hotel “fosters a prostitute-friendly environment” and Miami Beach Police informed the Burgeses that the attackers “may have been under the influence of alcohol and/or drugs and confused plaintiff Anna Burgese as competition, i.e., another prostitute who was capturing business at the hotel.”

The suit has also named several Jane Does as defendants, a legal tactic commonly used as a placeholder when the identities of defendants are unknown. The yet unidentified Jane Does include the individual that actually attacked Burgese, a group of women that was allegedly encouraging the attack, and another person that hailed a taxi for the attacker after the incident.

One claim of particular interest in the Burgeses’ lawsuit is that for premises liability against the hotel. As this blog has discussed before, premises liability refers to a legal duty that property owners have to maintain their premises in a reasonably safe manner. The extent of the duty owed will depend on the type of relationship between the owner and the injured party, specifically, whether the person was a: (1) invitee (individual who enters a property for business purposes); (2) licensee (individual who enters a property for social purposes); or (3) trespasser (individual without permission to enter onto a property).

May 23, 2013

Florida Court of Appeals Declares That Permanency Of Car Accident Injuries Is A Decision For The Jury

by Gerson & Schwartz, P.A.

This past March, Florida’s Second District Court of Appeals tackled an important issue in the case of Smith v. Llamas, addressing the inquiry as to whether a Florida car accident victim’s injuries are temporary or permanent and if this question should be answered by a jury. The Court ultimately held that the permanency of injuries is a question of fact, and, as such, is the sole province of the jury.

In Smith, Fernando Llamas was injured in car accident when his vehicle collided with that of Shana Smith. Llamas sued Smith for negligence, claiming that that he had suffered significant injuries to his neck and knee in the accident. Smith maintained that she was only partially responsible for the collision and, pursuant to Florida’s comparative negligence doctrine, her liability must be reduced by the proportion of Llamas’ liability.

At trial, Llamas presented expert testimony by a neurosurgeon stating that Llamas’ neck injury was permanent due to the fact that surgery could not completely eliminate the injury. In rebuttal, Smith’s expert, an orthopedic surgeon, testified that Llamas’ neck injury was not permanent and was not caused by the accident.

May 22, 2013

Florida Court Holds That Co-Owners Of A Vehicle Are Liable For Each Other’s Negligence

by Gerson & Schwartz, P.A.

Earlier this year, Florida’s Second District Court of Appeals addressed the question as to liability of a co-owner of a vehicle for injuries caused by the negligent driving of the car’s other owner. In Ortiz v. Regalado, Andy Ortiz (“Andy”) was driving a car which he co-owned with his father when he collided with the vehicle of Lourdes Falcon, killing Ms. Falcon’s daughter who was a passenger.

Ms. Falcon filed a lawsuit, claiming that Andy was negligent in causing the accident and that his father was vicariously liable for Andy’s negligence as joint owner of the vehicle. As this blog has discussed before, vicarious liability, or respondeat superior, is a legal theory under which the superior, in this case Andy’s father, is held liable for the acts of his or her subordinate, in this case Andy.

After a trial, a jury found that Andy and Ms. Falcon were each 50% at fault for the accident and awarded Ms. Falcon a judgment for approximately $1.4 million in damages. Under Florida’s comparative negligence law, each party to an accident is held proportionately liable for damages resulting from his or her negligence. Accordingly, the court ordered Andy and his father jointly liable to pay half of the $1.4 million judgment.

May 21, 2013

What Consumers Need To Know About Class Actions Lawsuits As They Relate To Product Liability Claims

by Gerson & Schwartz, P.A.

Previously, this blog discussed the elements of product liability claims as they relate to recalls by the U.S. Consumer Product Safety Commission (“USPSC”) of various defective consumer products. Many times the circumstances associated with product liability claims spur attorneys to use a unique legal device to obtain recovery when multiple individuals have been injured.

When a sufficiently large number of people are injured by a product that was defectively manufactured or designed, the group’s legal claims may be pursued by means of a “class action” lawsuit.

A class action lawsuit is a type of legal claim that groups multiple individuals together so they can litigate their claims as one. In order to commence such an action, however, the class must first be certified by the court in which the lawsuit is filed. To be certified by the Court a class must possess four qualities:

May 13, 2013

3 Crime Victims of Horrific Physical Abuse, Kidnapping, and Heinous Sexual Crimes, Found Alive After Nearly 10 years

by Gerson & Schwartz, P.A.

Violent criminals belong behind bars and their innocent victims need professional help. A qualified victims’ rights lawyer can assist. The world has been watching as the lives of 3 women have been revealed, after being abducted and held against their will for almost 10 years, by an alleged perpetrator in Cleveland, Ohio. The crimes committed against these women are unthinkable and devastating to their families and to the world at large. Justice must be served. The alleged perpetrator, 52 year old, Ariel Castro, is facing possible death penalty charges, and at the very least life in prison for his crimes of sexual violence and kidnapping against 3 innocent women. Castro is also being charged for the kidnapping of his own 6 year old child who was conceived as a result of the rape he committed against one of his kidnapping victims, Amanda Berry.

The crimes committed against these 3 innocent women include kidnapping, sexual assault and rape, as well as physical and psychological abuse. Castro may even face murder charges for the murder of 5 unborn fetuses, after he allegedly physically starved and beat one of his captives who became pregnant 5 times due to his raping her. Michelle Knight is thought to have suffered 5 miscarriages, due to Castro’s beatings and imposed starvation on the pregnant woman. Since, the death penalty is legal in the state of Ohio, where the crimes were committed, it is possible that Castro will in fact, face the death penalty, eventually.

Crime victim attorneys at Gerson & Schwartz PA have been handling cases of traumatic physical, sexual abuse and rape for victims alike and are experienced representing crime victims and their families and recovering civil awards for them through the Florida Justice System. The crime victims’ rights lawyers at Gerson & Schwartz are experienced at handling cases of a personal and sensitive nature making them among the most qualified, crime victim attorneys in the state of Florida. Gerson & Schwartz knows how to effectively bring claims against all negligible parties who may have contributed to the duress and permanent scars that crime victims like these 3 women in Ohio have endured.

May 2, 2013

No Texting While Driving Passes in Florida Senate

by Gerson & Schwartz, P.A.

Texting while driving is a rampant problem across the US, which often times leads to catastrophic car accidents. The state of Florida is one of the only remaining states who had not yet passed a law banning texting while driving, until now. The senate has approved and passed Bill 52 making texting a secondary violation for drivers, who are cited for a primary driving infraction. If it is discovered, that a driver is typing on any device whatsoever, he or she will receive an additional citation for this, now illegal activity.

Statistics indicate that thousands of teens and adults are killed each year due to texting and driving. Miami auto accident attorneys, as well as law enforcement deal with these critical cases on a regular basis. The dangers of distracted driving have been proven over and over again throughout the world. According to Distraction.Gov, drivers who use a hand held device are 4 times more likely to get into life threatening car accidents. Sending a text or an email can take a driver’s eyes of the road for an average of 4.6 seconds, resulting in serious car accidents that cause injury to drivers, passengers and pedestrians, alike.

Personal injury attorneys Nicholas and Philip Gerson have seen firsthand what can happen when a careless driver is holding the wheel and a hand held device at the same time. They have handled numerous cases in which a driver who sent a quick text or email caused serious harm to their clients. Wrongful death cases or cases of catastrophic injuries are the result of driver negligence.

If drivers were not otherwise distracted, they would have been paying closer attention to the road. Texting or sending emails while driving takes the driver out of the moment and away from noticing the street signs, lights, or innocent pedestrians. Frequently, teen agers who are new drivers are easily distracted by texting while driving. Due to their young age and inexperience, children’s slower reflexes become a handicap for them while navigating the road. 11 teenage drivers die every day in the US due to texting and driving.

April 22, 2013

What Constitutes Bad Faith On The Part Of An Insurance Company Under Florida Law?

by Gerson & Schwartz, P.A.

Typically, when a person is injured in a car accident, the insurance company of the at-fault party will step in and attempt to settle the dispute on behalf of its insured. Sometimes, however, the insurance company is unable or unwilling to settle the claim, forcing the injured party to sue. The injured party may later receive a judgment against the insured party that exceeds the amount of the insured’s coverage, leaving him or her on the hook to the injured person for the full amount of the award less what was covered by under the insurance policy.

Under Florida law, bad faith claims allow the insured to sue his or her insurance company to recover the difference between the limit of coverage and the amount of the judgment if the insurance company acted in “bad faith” in attempting to settle the injured party’s claims. Last month, the United States District Court for the Middle District of Florida, issued an opinion in the case of Markel American Insurance Company v. Flugga discussing the elements of a bad faith claim and the elements necessary to establish such a cause of action.

In Flugga, Mark Flugga was found to be at fault for a 2010 motor vehicle accident in which he, his passenger, and two individuals in another vehicle were injured. Flugga’s insurance company, Markel American Insurance Company, was notified of the accident four days after it occurred.