If your baby has suffered brain damage a the hands of a negligent doctor, you have just been thrust into a war zone. So called litigation literature is just one of the many weapons doctors wield to protect themselves when they make mistakes and to torpedo your child’s chances of ever achieving some semblance of justice.

Litigation literature describes any study masquerading as an honest, scientific study but was written to refute plaintiffs’ claims in court. One such example is the requirement that brain damaged babies must prove that something the doctor did actually caused the brain damage – lawyers call this causation. The American College of Obstetrics and Gynecology (ACOG) wrote a paper purporting to be an honest scientific study that claimed that 90 percent of brain damaged babies received those injuries before birth.

A common claim in court is that brain damage is caused by a baby’s inability to get oxygen to its brain during birth. In 1992 however, doctors got tired of losing trials after negligently delivering a baby so they decided to promote some arguments that would protect them.

This particular study manipulated the existing medical literature to create a false sense of four essential criteria without which lack of oxygen during birth could not cause brain damage. The study claimed that birth injury to the brain could not be caused by lack of oxygen unless all four of these criteria were present:

1. Ph of less than 7.0;
2. Apgar scores of 0-3 for five or more minutes;
3. Symptoms like seizures and coma; and,
4. Multi-organ dysfunction following birth.

Of great interest is that neither number two nor four are considered valid today. Criteria number two is Apgar score, a numerical indicator given by nurses of how well the baby is breathing and moving after birth. However, in response to this article, hospitals had nurses assign Apgar scores of four or more. Thus, by artificially inflating the score, doctors and hospitals could avoid liability if a jury bought into the junk science they were propounding.

The truth is that a real scientific study based on hard evidence show the ACOG theory to be absolutely false. In fact at least 80 percent of brain damaged babies studied suffered injury due to lack of oxygen during birth. This evidence was gathered from autopsies and MRI scans which can reliably indicate the degree and timing of brain damage due to hypoxia (lack of oxygen).

We as plaintiffs’ lawyers work hard to overcome litigation literature and discredit the so called experts who propound these junk science theories, but the fight goes on and newly misleading articles continue to be published. A tragic side effect is that these junk science studies are entering the medical literature and are misleading well meaning health care providers.

Not this time. Not in the case of Salvant v. State in which judges ruled that doctors could not use a medical study as evidence because it was misleading and intellectually dishonest.

The article purported to say that 50 percent of all brachial plexus birth injuries happened to newborns who did not experience shoulder dystocia. Shoulder dystocia is a situation during child labor when the baby’s shoulder gets stuck behind the mother’s pubic bone.

However, the data the doctors used in the study was unreliable and unverified and could not support a valid scientific conclusion. Kudos to the court for calling a spade a spade and throwing out this junk science. Justice goes unserved when verdicts are tainted by junk studies masquerading as real science.

If you suffer a torn pubic symphysis during childbirth, odds are that it was the result of medical malpractice or the negligence of the midwife. Odds are even greater if the tear occurred in conjunction with managing a delivery involving shoulder dystocia.

Shoulder dystocia describes a childbirth in which the baby’s shoulder gets stuck behind the mother’s pubic bone. In such medical emergencies, obstetricians and midwives place the mother in different positions in the hope of freeing the baby’s shoulder.

However if the mother is put into these positions incorrectly, too much pressure is placed on the pubic symphysis, and it can tear with a loud pop.

Since the pubic symphysis holds the pelvic girdle together, a tear causes your entire pelvis to become unstable. You will likely experience pain and difficulty moving your legs. You will also most likely not be able to walk because of the pain and instability.

This is a serious injury should be treated as such.

In a rear end car accident, Florida law imposes a presumption that the rear driver is at fault. This presumption can be overcome with sufficient evidence. If the rear driver can show that the lead driver stopped or changed lanes abruptly or arbitrarily in a place that a reasonable person would not expect them to, then Florida law no longer presumes the rear driver to be negligent.

If the lead driver’s vehicle is stopped illegally, then Florida law no longer presumes the rear driver to be negligent.

Lastly, if the rear driver in the wreck can show that his or her car suffered from a mechanical failure like sudden brake failure (and the mechanical failure is not the fault of the rear driver) then Florida law no longer presumes the rear driver to be negligent.

These exceptions to the rear driver negligence presumption played an important role in a recent Florida wrongful death lawsuit involving a highway wreck. The case almost got thrown out of court until a judge ruled that the plaintiff (who represented the rear driver) presented enough evidence of the first exception.

Without evidence that the lead driver of a tractor trailer abruptly changed lanes and decelerated, the rear driver would have been presumed to be the negligent party and the case would likely have been thrown out of court.

You must agree to stop using social network sites before I will agree to represent you in your Florida injury lawsuit. I just read a new article about several ways that police have used the internet to gather evidence. Before you think this is limited to criminal matters, let me assure you it is not.

Insurance companies routinely hire investigators to follow accident victims for surveillance. Those investigators can follow you in your car and they can follow you online. Increasingly, online surveillance is becoming more rewarding for investigators because of people’s incredible willingness to share personal details online that investigators couldn’t uncover otherwise.

Here is a summary of the article I read detailing police successes online:

- You Tube cell phone videos allowed Virginia police to identify suspects in a December street brawl.

- An illegal drag racing organization was busted when Tennessee police discovered the online chat-room they used to plan their activities.

- Suspects in riots celebrating the LA Lakers’ NBA championship were identified in You Tube and Flickr content.

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.

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.

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.

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.

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.