Miami Accident Lawyer Blog

October 30, 2012

Gas Station Burn Victim Gets Go-Ahead to Press for Punitive Damages Against Circle K and Shell Oil

A Palm Beach Deputy Sheriff severely injured in a fuel fire that broke out at a Marathon, Florida Circle K gas station will now be able to pursue punitive damages against Circle K Stores and the Shell Oil Corporation. Upon careful review of pre-trial evidence gathered by burn victim Richard Ragali’s attorney, a Monroe County Circuit judge has found enough evidence of conscious disregard by the fuel companies for the life and safety of their customers to entitle Ragali to add a claim for punitive damages to the lawsuit he filed.

The October 2, 2012 Sun Sentinel recounted, the 2009 incident that disfigured and disabled Ragali: While motorcycling his way to Key West in the company of other off-duty police officers, Ragali stopped at a Circle K station at 11100 Overseas Highway in order to refuel. As Ragali pulled his motorcycle up to one of the station’s fuel pumps, his bike slid on a standing puddle of gasoline, and within seconds, Ragali’s body was engulfed in flames. Either the bike’s hot exhaust pipe, or fumes coming from the pipe, made contact with the gasoline, and the resulting flash of fire instantly incinerated Ragali’s trunk, buttocks, right arm, and right leg. Six weeks at Miami’s Jackson Memorial Hospital could not restore Ragali to function sufficient to enable him to return to duty, and Ragali currently remains disabled and unemployed.

October 25, 2012

Car Accident Killing One and Critically Injuring 4 Others while Waiting for a Bus

by Gerson & Schwartz, P.A.

According to the Miami Herald, a woman lost her life after a man recklessly drove his car into a Miami Gardens bus bench yesterday around 4 pm. 4 other people were seriously injured while waiting for the bus at Northwest 199th Street and Second Avenue. The driver who was speeding lost control of his vehicle and literally plummeted directly into the bus bench without even breaking.

One woman, Delia Tafur, wound up having both of her legs amputated. A second woman Wendy Vaszuez, 44, endured severe trauma to the head. Mary Smith, died at the scene, and two teenagers, ages 16, suffered fractures throughout their entire bodies. The name of this driver is still unknown and an investigation is pending. It will be interesting to find out if this driver was driving under the influence of drugs or alcohol or what is past driving record reveals about him.

Car accident attorneys are hired by victims’ families such as these to represent them in a court of law and to seek damages for their physical and emotional losses. Automobile collisions are one of the most common causes of personal injury and wrongful death in Florida. Car accidents can result in multiple kinds of injuries, leaving individuals disabled for a lifetime. Tragically, a car accident can result in the loss of life of a loved one.

October 16, 2012

Florida Lawsuit Highlights Dangers of Automatic Gates

by Gerson & Schwartz, P.A.

On the morning of April 11, seven-year-old Zhanaye Williams and her brother climbed aboard the automatic gate located at the entrance to their Tampa, Florida apartment complex, hoping to pass the time as they awaited their school bus. Suddenly, the gate began to topple, and unable to escape, Zhanaye suffered a crushing and fatal blow to her skull. According to tenants of the complex interviewed for the April 11 edition of the Tampa Bay Times, the enormously heavy gate had been broken for at least four years, and by the time of the fatal accident, it was attached to its frame by only a chain. Earlier this month, attorneys for Zhanaye’s parents filed suit against the apartment complex owner and its management company, seeking damages for Zhanaye’s death, along with damages for infliction of bodily injury and emotional distress on Zhanaye’s brother, who survived the accident and witnessed Zhanaye’s deeply disturbing ordeal.
In this instance, the grossly neglected condition of an automatic gate is the focus of legal action, but property owners have been held accountable for automatic gate-related injuries even in cases in which the care and maintenance of an automated gate have not been challenged. This is because automated entrance gates are potentially very dangerous simply by virtue of their design and function, and as a result, property owners who choose to install them expose anyone entering their property to very well established risks.
Preventable Injuries Continue Despite Safety Standards

The power of automatic gates to cause serious injury and death has been recognized for many years. In March, 2000, the U.S. Consumer Product Safety Commission, in consultation with Underwriters Laboratories, developed specific standards aimed at reducing the risk of entrapment by automatic gates, basing this effort on documentation of approximately 25,000 gate-related injuries (9,000 of these involving children below the age of 15) during the ten-year period just prior to implementation of the new standards. The standards called for installation of both internal sensors, to reverse gate motion if the sensor directly encounters an object, and external sensors (such as electronic eyes), to reverse gate motion upon remote detection of an obstruction. The Commission also urged that gate controls, such as keypads, be positioned sufficiently far from gates so that users would not have to make contact with a gate while operating its controls.
The promulgation of these standards did not, unfortunately, put an end to maimings and deaths by automatic gates, in Florida or elsewhere. In September, 2000, a Miami woman coming to view a Coconut Grove condominium for possible purchase died from asphyxia after she operated the keypad of the automatic gate to the condo building by reaching through the gate’s bars, and got trapped in the moving gate before she had the chance to retract her arm. Zhanaye Williams’s fatal encounter with an inherently dangerous and poorly maintained automatic gate came over 12 years after gate safety standards were tightened; and less than a month after Zhanaye Williams was killed, a 12-year-old died when he got dragged into a vertical-rising, roll-up-style automatic gate at a Brooklyn, New York apartment complex.

October 11, 2012

New Studies of Child Abuse Reveal Serious Personal Injuries Increasing in Children Under the Age of One

by Gerson & Schwartz, P.A.

A national study by Yale University doctors, John Leventhal and Julie Gaither of New Haven, Connecticut contradicts the previous reports and findings by Child Protective Services regarding the number of child abuse cases in the US. This new report demonstrates why the previous reports by Child Protective Services were inaccurate and unsubstantiated. This new study documents the number of physical injuries resulting from child abuse which indicates an upward trend in very young victims who have sustained physical injuries by parents or care givers. http://abcnews.go.com/Health/Wellness/child-abuse-injuries-rise/story?id=17364578

Previously, the number of child abuse victims was inaccurately presumed to be declining according to the Child Protective Services study. Actually, this was a misrepresentation based on one single data source that was incomplete. Unfortunately, the devastating truth is that there is actually an increase in child abuse cases documented by hospitals, wherein children under the age of one year old account for the majority of all abuse cases reported.

According to Med Page and ABCNEWS.COM, the current Yale University study indicates that children under the age of 1 make up for 54 percent of cases in the hospitalization data, for child victims of physical abuse. Thus, the number of physical injuries inflicted upon very young children is increasing while those injuries inflicted upon older children are decreasing. The Kids’ Inpatient Database reflects , that assault and battery, of extremely young infants and children are resulting in injuries such as traumatic brain injuries, broken bones, serious burns, abdominal injuries, just to name a few. Alarmingly, the incidence of death in children who were physically abused over a period of 12 years rose from .25 to .36 per 100,000 children. Child victims are innocent victims and, they cannot defend themselves.

October 2, 2012

Abuses at Florida Nursing Homes Continue

by Gerson & Schwartz, P.A.

The spotlight was once again on Florida’s nursing homes last month when WFTV 9 exposed the battering of a Southern Oaks Health Care Facility Alzheimer’s patient by one of the St. Cloud facility’s nurses. The nurse was arrested on felony abuse charges when police acted on an eyewitness account of the nurse delivering a belly blow to the helpless female patient. In its investigative reporting, WFTV uncovered a long history of patient-care and safety violations at this facility, some of which had resulted in a fine exceeding $25,000.

A disturbing case of extreme Florida nursing home neglect came to light in December, 2011, when the nursing director and a registered nurse at the Clermont Health & Rehabilitation Center were arrested on charges of failing to follow doctors’ orders for the care of an elderly patient who was recovering from a hip fracture. Regulatory enforcement documents in that case identified failures to treat ulcers over the patient’s limbs and tailbone as factors contributing to the patient’s ultimate death at the Clermont facility.

Last month, long-investigated conditions at the Ocoee Health Care Center finally became the subject of fines and a licensing downgrade after the Florida Agency for Health Care Administration documented that the facility had failed to ensure adequate and appropriate health care, protection, and support services to residents, breaching standards for provision of pain management, infection control, and wound care. Staff at the facility was found, among other infractions, to have disregarded a patient’s report of severe pain from both a fractured femur and pressure ulcers, and to have sloughed and bandaged this same patient’s wounds without maintaining sterile conditions, and without regard for procedure-related pain.

The Many Faces of Long-Term Facility Abuse

There are, very sadly, all too many ways in which a resident of a skilled nursing facility may be neglected or abused. The media-catching cases described here are examples of obvious intentional and negligent misconduct, but there are more subtle ways in which residents may suffer harm. Gradual malnourishment of a patient through failure to provide him or her with needed feeding assistance may not make the news, but it nonetheless constitutes a life-threatening form of nursing home neglect that must be redressed. Similarly, depriving a nursing home resident of devices he or she needs in order to maintain mobility may not produce bodily injuries, but this sort of misconduct constitutes a type of false imprisonment for which a facility must be held accountable.

September 24, 2012

Florida A&M Moves to Dismiss Hazing Death Suit. Sovereign Immunity a Problem for Injured Victims in Florida

by Gerson & Schwartz, P.A.

Florida A&M University responded last week to the wrongful death suit filed against it by the parents of Robert Champion, the young drum major who died at the hands of fellow marching band members during a notorious hazing incident that took place in Orlando last November. Triggering a tide of national media criticism, FAMU asked the Orange County Circuit Court to dismiss claims against it on grounds that Mr. Champion’s submission to hazing was itself an illegal act, and that, in any case, the University did all that it was required to do in the way of discouraging hazing practices.

According to a September 11, 2012 Orlando Sentinel report, the attorney for Mr. Champion’s family was shocked by FAMU’s blame-the-victim defense strategy, and he continues to maintain that FAMU is liable in damages because it failed to take available measures to end the culture of hazing that influenced members of its famous Marching 100 band, including Mr. Champion, to perform the “gauntlet” ritual that ended Champion’s life.

Civil Claim For Events That Included Alleged Criminal Activity by Others

FAMU’s court filing includes an alternative request that draws attention to another dimension of this case, which is the alleged criminal nature of the beatings that led to Mr. Champion’s death. The University is asking that if the lawsuit is not dismissed outright, then it be postponed until criminal prosecutions of band members charged in the hazing have been concluded. Twelve marching band members are currently fighting felony charges brought against them under Florida’s anti-hazing law. FAMU is apparently hoping that convictions of the band members will somehow reduce or erase its own liability for the activities that caused student Champion’s death. This, however, is not the way things are likely to work, because Florida’s anti-hazing law, and a body of court decisions that have addressed hazing, quite clearly impose on universities responsibilities that are not negated by the criminal acts of others.

September 24, 2012

Day Care Abuse Results in the Death of a Four Year Old

by Gerson & Schwartz, P.A.

Three Miami Herald articles, posted since August 2, 2012, confirm Broward authorities determined the cause of death of a 4 year old child named Jordan Coleman. Little Jordan, was left to die of heat exhaustion in a Toyota SUV, while his caregivers took other children inside an apartment building for a nap. They forgot about Jordan who was sprawled across the back seat of the car, asleep. He was not even in a child safety seat. Instead, nobody noticed he was missing.

Nearly 3 hours later, he was found breathless by 3C’s Academy day care workers. Paris Ward and a co-worker discovered his body, but it was too late. Jordan’s body temperature had reached 108 degrees. He was not breathing after having been left inside a car on of the hottest days of the year. Paris Ward was charged with manslaughter; as, she was responsible for the direct supervision of the children. (Miami Herald.com)

This gross negligence and abuse is tragic. No child or adult could have ever survived. The vehicle had no ventilation and outside temperatures were into the 90’s. Broward County day care centers must adhere to regulations established by the Florida Division of Child Care Licensing and Enforcement. However, it is not only the responsibility of the county to enforce its code of conduct, and cite day care centers, whenever they are not compliant. But, centers should be closed down in cases like this, before tragedy strikes.

September 12, 2012

Drunk Drivers Suffer Consequences for Driving Under the Influence

by Gerson & Schwartz, P.A.

A drunk driver, with his one year old child in the back seat, was arrested after being stopped by Boynton Beach police. Driving in the bicycle lane on North Federal Highway, Yair Espinsosa had a suspended license. His only identification was a Mexican passport. (sunsentinel.com) After police pulled Espinosa over, they found a bag of cocaine, as well as several open beer bottles.

In the state of Florida, drunk driving is a very serious offense. The legal blood alcohol level in Florida for drivers is .08%. Moreover, drivers are required to sign an “Implied Consent” when they sign their driver’s license. This law mandates that one has agreed to take drunk driving tests, if requested to do so. In Espinosa’s case, he refused the roadside sobriety test. Nevertheless, he later blew a .227 on a breath alcohol test which is almost three times the legal limit. Espinosa was transported to the Palm Beach County Jail; where, he still remains. He could not post the bail amount of $10,050.

The legal ramifications for drinking and driving are severe in the State of Florida, and laws vary depending on the age of the driver. For instance, there is a “Zero Tolerance Law” which applies to all individuals under the age of 21. According to this law , drivers who are found to have a blood alcohol level of .02% or higher are subjected to harsh penalties, including jail and a suspended license for 6 months.

September 5, 2012

Victims Still Seeking Product Liability Damages for Dangerous Drug

by Gerson & Schwartz, P.A.

A painful public memory was reawakened late last week when the Gruenenthal Group, which introduced the drug thalidomide in the 1950s, issued an apology to thousands worldwide who suffered severe birth defects after their mothers took thalidomide during pregnancy. The gesture brought no closure for thalidomide victims who have yet to be appropriately compensated for their injuries and disabilities, because the apology came with a reminder by Gruenenthal’s chief executive that the company has no intention of compensating victims for losses caused by the drug.

Thalidomide: Dangerous Drug
Prescribed until 1961 as a panacea for morning sickness, thalidomide interfered with fetal development, leaving its victims with shortened or completely absent limbs, and with other disabling, and often fatal, abnormalities of the heart, genitalia, eyes, and ears. The approximately 12,000 known victims of thalidomide were concentrated throughout Europe (including the U.K.), Australia, Japan, and Canada, where the drug had been approved for use during pregnancy. Even in the U.S., where thalidomide was distributed only on an ‘investigational’ basis, at least 17 children were born with the drug’s characteristic adverse effects. The accommodations those surviving thalidomide victims ended up needing simply in order to get through life turned out to be extensive and costly.

Despite Gruenenthal’s steadfast denial, over the years, of any obligation to compensate thalidomide victims for their injuries, advocates for compensation have never given up their fight, even as the population of thalidomide victims has aged. In the U.S., Gruenenthal, along with British firm GlaxoSmithKline and multinational pharmaceutical developer Sanofi-Aventis, have been named in lawsuits that seek damages based on these companies’ connections with the business entities that originally made thalidomide available to pregnant women in the U.S.

Dangerous Drug Claims
Thalidomide, which is used relatively safely, today, to treat a variety of conditions in non-pregnant patients, worked its notorious fetal harms through undetected or undisclosed side-effects. Also, many claims involve marketing practices that deprived thalidomide prescribers and users of clinical testing information that could have provided notice of serious risks.

Undisclosed dangerous side-effects, failures to limit drug use to safe contexts, and improper marketing are, in fact, often the bases for dangerous-drug damage claims against drug manufacturers and distributors. Manufacturing defects and drug tainting (which may occur during bottling and shipping) are yet another basis for liability recognized under drug product liability law.

August 30, 2012

Florida Jury Awards $28.45 Million in Meningitis Misdiagnosis Case

by Gerson & Schwartz, P.A.

Earlier this month, Palm Beach County Civil Division jurors awarded $28.45 million in damages to the mother of a Boynton Beach child who suffered a stroke and permanent brain damage after two doctors misdiagnosed what was a very serious, but eminently treatable, infection of the child’s nervous system. The child had presented at Bethesda Memorial Hospital with a persistent fever, and his doctors correctly ordered a diagnostic spinal tap; but when spinal fluids showed the presence of bacterial meningitis, the doctors failed to take notice.

The child subsequently fell victim to a massive stroke that left him with profound and permanent developmental disabilities. His doctors alleged that they eventually did diagnose and treat for meningitis (and they are planning to appeal the verdict). However, in an interview given to the Palm Beach Post on the occasion of the verdict, the family’s medical malpractice attorney discounted this better-late-than-never argument, noting that all the injuries and losses suffered by the child and his family could easily have been prevented through timely administration of antibiotics.

The hefty verdict in this case included $12 million in non-economic damages reflecting the patient’s pain and suffering. Though Florida legislation imposes a cap of $1 million on such non-economic damages in medical malpractice cases, the successful plaintiff in this lawsuit may ultimately recover the full verdict amount, because the Florida Supreme Court is currently in the process of deciding a case, brought by key policy-makers, that seeks to get rid of the legislated malpractice damage limits.