I Am Not Legally Allowed To Say I Am the Best Florida Lawyer

In November of 2009, Florida’s First District Court of Appeals ruled that Shands Teaching Hospital had a legal duty to protect Michelle Herndon from Oliver O’Quinn, a surgical nurse with a history of stealing controlled substances. O’Quinn murdered Herndon by injecting her with dangerous drugs. Propofol, Midazolam and Estomidate are available only by prescription.

At the wrongful death trial, the plaintiffs argued that Shands was negligent in hiring and supervising O’Quinn. A competent background check would have revealed his history of stealing drugs. In addition, Shands was informed by its employees that O’Quinn was stealing drugs and did not immediately dismiss him. Shands accepted his two weeks’ notice but did not restrict his access to the drugs.

Unfortunately, in that time, O’Quinn murdered Herndon with drugs stolen from Shands. O’Quinn had become infatuated with Herndon and injected her with the deadly drugs when she told him she was engaged to be married.

On appeal, the court ruled that a legal duty did exist because (1) Shands knew or should have know that the unsupervised release of hazardous, controlled drugs was dangerous; (2) a reasonable hospital would recognize that not implementing controls to keep dangerous drugs secure and supervised would expose the public to unreasonable risk of harm; and (3) Mischelle Herndon’s death was a foreseeable result of Shands negligent hiring and supervising of O’Quinn.

Though Shands did not know O’Quinn to have a violent history, the court ruled that his history of stealing drugs was enough to make harm to the public foreseeable to Shands in light of the hospital’s failure to secure its dangerous drugs.

The court explained that a legal duty exists where a general threat of harm to others exists. The threat of harm does not need to be specific to create a legal duty to protect.

“A common law duty is recognized, regardless of intervening criminal conduct, when a person’s actions ‘create “a foreseeable zone of risk” posing a general threat of harm to others.’… Moreover… the essence of the zone of risk is not the foreseeability of the specific injury that occurred, but whether the zone of risk poses a general threat of harm to others.’ See Hewitt v. Avis Rent-a-Car, 912 So.2d 682 (Fla. 1st DCA 2005)”

Art Zimmet is an injury lawyer who will tell you something most lawyers won’t. If you’ve been injured by the negligence of another, you might not need a lawyer. But before you sign any forms, speak with an insurance company or hire a lawyer, get the free books and information available at my Florida medical malpractice lawyer website. Also visit my Florida child injury lawyer blog  for Florida child injury legal resources. Both sites are full of valuable information and you won’t be disappointed.

Every once in a while something you see and hear on TV or in a movie turns out to be true. It’s not often but it happens. This is one of those times.

Florida’s evidence code can be quite restrictive in the types of out of court statements it allows the jury to hear. In fact, the rule is that no witness can testify to the jury about an out of court statement unless that statement can be shown to be reliable. Only in certain circumstances are juries allowed to hear  out of court statements.

Those exceptions to the rule are very specific in their requirements. When it comes to statements made by parties to a lawsuit however, the jury is allowed to hear almost any out of court statement made by that person if it is offered against that party.

This rule is called the party admission. The rule’s name can be confusing to attorneys because the party (defendant or plaintiff) need not actually admit anything. The rule states that a parties own statement is admissible if it is offered against them. Interestingly, the party cannot admit their own out of court statement, but the party’s opponent can use their own such statements against them.

Another area of confusion among lawyers is whether or not the statement must be against the party’s interest to be admissible. The answer is that it need not. Even if a statement is in the party’s interest, it can be used against that person by his opponent.

If you are ever unfortunate enough to find yourself in a situation where you think you may end up in court, say as little as possible. Even things you think will help you can be used against you. Whether you’ve been in a car accident in Daytona Beach, whether your child has been injured at day care, or your parent has been injure in a nursing home, remember, anything you, your child or your parent say can be used against you.

The Fifth District Court of Appeals in Daytona Beach, Florida recently ruled that auto accident victims who are injured in the crash can not pursue their claim for property damage to the car separately from their claim for personal injury that were both the result of a single crash.

Alice Bryant did just that after her auto accident caused damage to her vehicle and personal injury. However, the trial judge threw out her personal injury lawsuit because she had first obtained a judgment for the property damage incurred in the wreck that caused the personal injury.

Other Florida courts have noted that bringing a suit for both property and personal injury damages is more difficult than bringing them separately, but nevertheless, Florida law requires all damages resulting from a single incident to be litigated in a single lawsuit, even when it involves a car accident.

For more information about Florida traffic injury law, visit this Florida personal injury lawyer resource page.

You’ve probably heard this many times from the ubiquitous lawyer ads on TV, but don’t sign any forms sent to you by the insurance company. I never let my clients sign medical record release forms because those forms almost always give the insurance company unlimited authorization.

The insurance company is entitled to some of the records, but I want to be the one who controls and monitors their access to the records. I want to know which records they have so I won’t be surprised. I want to know when they gain access to them. I want to be able to tell them that the law does not allow them access to certain records that are irrelevant to the case at hand.

So, once again, don’t sign any insurance company forms before you talk to a Florida injury lawyer. In addition, some cases might not even require a lawyer, but before you make a move, you should order one of my free books on Florida medical malpractice or accident cases.

If you’ve been injured and become involved in a lawsuit, you’ll have many questions. It’s only natural. One of the questions I have been asked is whether I think that I can prove the defendant guilty beyond a shadow of a doubt.

That question raises several interesting topics about the burden of proof in civil jury trials. First of all, there is no such requirement anywhere in the legal world that requires a plaintiff or prosecutor to prove the case beyond a shadow of a doubt. That phrase is a fictional creation. The most difficult burden of proof is “beyond a reasonable doubt” and is used only in criminal proceedings. So unless the person who injured you is also charged criminally, that person will not face the “reasonable doubt standard.”

If your Florida injury case reaches trial, regardless of whether it is in Orlando, Jacksonville or Daytona Beach, we will only be required to prove your case by a “preponderance of the evidence.” That is the burden of proof in civil jury trials. We will be successful in proving the case if the jury decides that it is “more probable than not” that your injury was caused by a liable defendant.

The preponderance of evidence standard is the only burden of proof that is widely accepted as being quantifiable. The standard is satisfied if there is a greater than 50 percent chance that the proposition is true.

The last of the three standards for conviction is “clear and convincing evidence.” This standard is a more difficult burden to prove than a “preponderance of the evidence.” It is also much less commonly used – for example in habeas corpus and capital punishment cases.

To prevail, a jury must be convinced that it is substantially more likely than not that the thing is true. See how that’s different than the preponderance of the evidence burden? One is more likely than not while the other is substantially more likely than not. That means it’s substantially more difficult to prove that burden than the preponderance of the evidence burden (and even more difficult to prove a case beyond a reasonable doubt).

These are standards for conviction. Other legal standards exist as well such as probable cause, but that deals with search and seizure law and is inapplicable to civil injury trials.

So in summary, if you’ve been injured anywhere in Florida, be it Orange City, Deltona, Port Orange or Ponte Vedra, and you file a civil claim, we’ll have to prove your case by a preponderance of the evidence.

Ask a doctor’s office to hand over a complete copy of your medical records and watch them demur, citing state laws and vague hospital policies. Jamie Heywood, featured in October’s issue of Wired magazine, wants such obstacles legislated out of existence. He’s on a quest to make medical records as easy to access as ordering a pizza.

Heywood is behind HealthDataRights.org, a movement to declare individual rights to have and share health data. He believes the reason hospitals guard medicals records so closely is that they don’t want to be second-guessed by patients and lawyers. And that lack of openness, he argues, is making people sicker. By having access to health data in a timely manner, better health decisions will be made and lives will be saved.

While most everyone agrees that getting doctors to convert paper health records to a digital system makes sense, not many doctors and hospitals have made the transition. The national goal is to make electronic medical records available to everyone by 2013.

The American Recovery and Reinvestment Act, passed early this year, includes $35 billion in incentives for doctors and hospitals to adopt computerized records.

But, only about 10 percent of hospitals and 20 percent of doctors’ offices are fully digitized now, according to Health and Human Services Secretary Kathleen Sebelius. “We have a very long way to go in a very short time,” she added.

Electronic medical records will transform the practice of medicine, Sebelius said October 6th at the Cerner Health Conference in Kansas City. They will improve the way we provide health care and how we pay for it, both essential components of health care reform.

Physicians could pull up lab data, scans, medical allergies, and other key information on the spot, regardless of whether a patient is visiting a regular physician or on an emergency room operating table.

About one in five patients discharged from the hospital wind up hospitalized again within 30 days, often because they lack adequate follow-up care. Computerization will allow doctors to track their patients’ progress more efficiently, Sebelius said.

Most hospitals have no financial incentive to create electronic records, says Ashish Jha of the Harvard School of Public Health. Electronic medical records don’t increase the amount that insurance companies reimburse hospitals for care.

In some ways, inefficient hospitals – which perform duplicate X-rays when the first set can’t be found – can actually make more money, because they charge for each new test, Jha says.

Along with incentives, the Department of Health and Human Services is developing standards for electronic records, so that hospitals and doctors will be able to exchange information. These standards and incentives may finally give hospitals the push they need, experts say.

Did You Know?
The country could eliminate 200,000 drug mistakes and save $1 billion a year if doctors in all hospitals entered their orders on computers, according to a 2005 study in Health Affairs.
Doctors and hospitals that convert to electronic records can receive bonus payments from Medicare and Medicaid beginning in 2011; those not using them by 2015 will face penalties.

There’s a new movement gaining momentum that casts doubts on the scientific evidence behind “shaken baby syndrome.” Medical and legal practitioners are begining to ask whether it is actually possible to shake a baby to death.

Shaken baby syndrome is usually diagnosed in the absence of physical signs of child abuse like bruises, cuts and broken bones. However, even without those symptoms, babies arrive at the emergency room with bleeding at the back of the eye, brain swelling and bleeding. This set of symptoms is often diagnosed as shaken baby syndrome and attributed to an adult vigorously shaking the baby.

Experts said that those three symptoms could only occur as the result of a shaking that produced forces equal to those of a car crash at speeds of 25-40 mph or a fall from a three story building. Some recent research using devices similar to crash test dummies suggests that aggressive shaking only produces injuries equal to those suffered in a 2-to 3-foot fall.

Reason and Discover magazine have published interesting articles about this growing group who are suspicious of shaken baby syndrome.

Insurance companies are some of the most unscrupulous and unethical corporations in existence. I just learned of two stories presented before recent Congressional hearings on healthcare reform that are representative of the intolerable behavior insurance companies regularly engage in.

Rescission is the term health insurance companies use for their practice of dropping you after you’ve encountered catastrophic injury or disease by finding chickenshit errors in your paperwork that they can use to justify canceling your policy.

WellPoint health insurance actually gave scores on a 1 to 5 scale in employee evaluations to encourage the practice. One underwriting executive saved Wellpoint $10 million for doing such a good job screwing people over.

How many of you reading this have Florida Blue Cross Blue Shield? Well BCBS rescinded Robin Beaton’s insurance last year after she was diagnosed with an aggressive form of breast cancer. Blue Cross said this was because she had neglected to state on her forms that she had been treated previously … for acne.

WTF? indeed.

However, under some state laws the practice is legal if done within the allowable time frame (typically up to two years after a policy is issued).

Fortis Insurance Co. rescinded Otto Raddatz’s health insurance after he was diagnosed with non-Hodgkins lymphoma because Raddatz did not include in his paperwork a prior CT scan showing an aneurysm and gall stones.

The kicker … Not only had Raddatz’s docter  never told Raddatz about the results, but they were “very minor” and didn’t require treatment.

The outcome? Fortis refused coverage until the state attorney general intervened. The delay caused Raddatz’s window of opportunity to treat the disease to shut, and he died.

I’m not saying the current healthcare reform package is the best answer to our healthcare disaster … but it does outlaw recission.

(If you’re short on time, skip to the last paragraph for a paradigm shifting experience)

Your freedom ends where it begins to impinge on my freedom. It’s one of the pilars of our legal system. You are free to do many, many things in America. But when the freedom our laws provide to you begin to impinge on the freedom our laws provide to me, that’s where you’re not free to act any more.

For example, drink as much alcohol as you want. You are free to do so if you’re older than 21. There is no legal limit to the amount of alcohol you can drink. That’s one of the freedoms our law provides to you.

However, the second you drink to much alcohol and get behind the wheel of a vehicle, you’re impinging on my freedoms, on my rights to a safe road and perhaps even life and the pursuit of happiness. So that’s where your freedom to drink ends.

Two recent articles in the New York Times have addressed the practice of using cell phones while driving and text messaging while driving. You don’t need studies to tell you that these practices are dangerous. You see it every day, but one study is particularly illuminating.

It found that in braking tests at 70 mph, drivers with a blood-alcohol level of .08 (legally drunk in Florida), stopped four feet further down the road than sober drivers while texting drivers stopped 70 further than they should have.

Texting and driving is significantly more dangerous than drinking and driving. I’m tired of moving over in my lane to avoid swerving texters. I’m tired of being held up in traffic by people on their phones going 10 mph below the speed limit because they’re distracted. It’s time to outlaw this practice and make our roads safer.

The problem, according to one of the NY Times pieces is that while everyone recognizes the danger, they don’t think they are part of the problem so they continue driving distractedly. The article cited studies showing that the same people who complained about phones distracting drivers rated themselves as being safe drivers even while using a phone in their car.

The absurdity of the public’s opinion on this is readily apparent, but sadly not at all surprising. Nearly everyone rates themselves as being of above average intelligence, but if everyone were above average, who would be below. We tend to see ourselves more favorably than we really are.

So that’s the most important problem – we don’t think we’re the problem so we’re unlikely to give up our supposed “right” to text while driving. But it’s not your right – you are not free to drive distracted because it impinges on my freedom.

Another problem as today’s Times points out is that our own government is covering up evidence that cell phones are dangerous instruments when used in a car. The National Highway Traffic Safety Administration caved in to Congressional pressure and withheld hundreds of pages of research and warnings about the use of phones by drivers.

The outrageous of this is so grandiose that I’m saving it for another blog post entirely. For now, I’m addressing problem one only. Get off your high horse. While you may be of above average intellignce, there’s no way you’re a safe driver while you’re on your cell phone and especially while you’re texting.

For years I was one of those people who thought I was different – safe. I would complain about drivers distracted by cell phones but I would still text and drive. Then in another post here I describe my transition away from texting and driving. What I found was surprising and holds far-reaching consequences for our perceptions and in particular, road rage. When I stopped texting and driving, I limited my texting to times when I was stopped at a red light. I found that on my 25-minute drive to and from work everyday, I was never stopped at a red light long enough to type an intelligible text. I could get one word at a red light, but never more than three. Try this sometime and it will change your perception of how much time you spend in traffic. It’s not much.

In an update to my previous post, a state judge ruled that an illiterate 13-year-old boy does not have the right to refuse chemotherapy, in part because he only has a “rudimentary understanding at best of the risks and benefits of chemotherapy. … he does not believe he is ill currently. The fact is that he is very ill currently.”

The judge did not remove Daniel from his parents’ custody but required that they proceed with medical evaluations to determine whether chemo is the best course of action

The judge said that if the boy’s prognosis remains good, the judge will require chemo, but if the cancer is too advanced, then he will not.

If the boy and his family refuse judge-ordered chemo, then the boy will be removed from his parents’ custody. The judge did not comment on what result would follow if the boy physicall fought the administration of the drug.