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medical malpracticeWith the prices you pay at the hospital, you shouldn’t have to worry about asinine medical errors. Yet they abound. As quality medicine standard-bearer Johns Hopkins recently reported, medical errors are now the THIRD leading cause of death in the United States. The Johns Hopkins study was a follow-up to a similar report by the U.S. Centers for Disease Control (CDC).  Startlingly, medical errors kill 250,000 people per year in the United States—trailing only (1) heart disease (614,000) and (2) cancer (591,000), and ahead of (4) stroke (133,103), (5) Alzheimer’s disease (94,000), (6) diabetes (76,000), (7) flu and pneumonia (55,000), (8) kidney failure (48,000), and (9) suicide (43,000). Not a good list to be near the top of, to say the least.

Perhaps the most avoidable of all medical negligence is the Unintended Retained Foreign Object (URFO)—a euphemism for “surgeon leaves [scalpel/sponge/forceps/clamp/scissors] in patient and sews her up.” A 2013 study found that hundreds of these events occur each year, many causing death. Ninety-five percent of UFROs resulted in additional care and/or an extended hospital stay. The total costs related to a UFRO is said to be $200,000 per incident.

Thankfully, the legislature and courts have rightfully decided that URFOs are a “never event” in a hospital—an event that, if people are being reasonably careful, will never, ever happen. In that vein, under Florida law, “the discovery of the presence of a foreign body, such as a sponge, clamp, forceps, surgical needle, or other paraphernalia commonly used in surgical, examination, or diagnostic procedures, shall be prima facie evidence of negligence on the part of the health care provider.” Fla. Stat. § 766.102(b).

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People who want to take your rights away depend primarily this supposition: America is full of useful idiots.

Exacerbating this problem is TV news, which is exactly as informative as a cartoon strip. Speaking of cartoon strips: Newspapers, the last bastion of actual journalism, continue to die. If not resuscitated soon, you won’t be able to line your cat box with them, let alone read a new edition.

If being un- or mal-informed hurt only one’s chances at winning trivia night at the local bar, that might be tolerable. The problem is that not understanding and misunderstanding issues changes how we think, act, and vote on important matters. And it’s killing us.

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In many of our personal injury and wrongful death cases, physical evidence is lost or destroyed long before we are retained by our clients.  After an incident, our clients are typically preoccupied by their injuries and medical treatment while defendants often dispose of the “smoking gun.”  This improper destruction of evidence is referred to as “spoliation.”  Common examples of spoliation include purging documents or records, failing to preserve video surveillance footage, disposing of dangerous objects, and prematurely repairing damaged structures without opportunity for inspection.  A party’s failure to preserve evidence can be extremely prejudicial in personal injury cases because the plaintiff, who bears the burden of proof, may not be able to prove their case without certain evidence.

Florida Courts have established standards for the preservation of evidence and certain sanctions that may be imposed for violating those standards.  In the recent case of League of Women Voters of Fla. v. Detzner, the Florida Supreme Court confirmed that all individuals and entities have a responsibility to preserve evidence in their possession where litigation is “reasonably foreseeable.”  Florida appellate courts have elaborated on this standard by holding that parties who willfully destroy evidence may have their pleadings or defenses stricken altogether.  If a defendant’s pleadings are stricken, the plaintiff essentially wins the case and must only prove the amount of their damages.  In less egregious circumstances, where a party destroys evidence inadvertently or unintentionally, the judge will generally allow an “adverse inference” jury instruction.  In other words, the judge will instruct the jury that they may infer that the party who destroyed the evidence did so because the evidence was unfavorable to their case.

The trial judge has broad discretion to impose sanctions for spoliation of evidence.  This determination will depend heavily on the conduct of the party who destroyed the evidence and all other attendant circumstances.  Often times, any sanctions granted are insufficient and leave the plaintiff with an uphill battle as they prosecute their case without the most crucial evidence.  Accordingly, it is imperative that injured parties retain experienced attorneys who will ensure that all evidence is promptly identified and preserved.

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The Supreme Court of the United States will answer this question in its upcoming term.ATM Fees

ATM fees are as ubiquitous as the machines themselves. Unless you go to your own bank, you’re going to pay a fee. The fees vary by location. At an ATM in a convenience store that is close to many other stores and ATMs, you’ll pay a little. At an amusement park, casino, or strip club—places with clientele who are captive, captive and desperate, and desperate, respectively—you’ll pay a lot more. However, the rate different customers pay at the same ATM will almost always be the same—whether your ATM card is a Visa or MasterCard or a Diner’s Club Card or a Texaco Gasoline Card or a Walden Books Card or Black AMEX.

The reason, according to a lawsuit that has worked its way up to the nation’s high court, is that Visa and MasterCard—proprietors of the two cards that account for a majority of U.S. ATM withdrawals—are fixing their prices. The U.S. Circuit Court for the District of Columbia Circuit held earlier this year that the plaintiffs in an ATM fee-fixing lawsuit had made a showing of an agreement to fix prices that was robust enough to at least survive a motion to dismiss. This decision differed from the stances of the Third, Fourth, and Ninth Circuits. Enter: The Supremes, who will decide which circuit is correct.

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Jet SkiThe vast majority of recreational and tourist activities enjoyed in Florida are not regulated by the Florida legislature.  Most tour operators have complete freedom to operate their business virtually any way they see fit.  This usually results in a culture of maximizing profit to the detriment of customer safety.  Warning, instructing, and training tourists requires time, and time is money.

Fortunately, the Florida legislature has been proactive in regulating the boating industry, and specifically, jet ski rentals.  Under Florida Statute 327.54, anyone renting jet skis to the public, whether for a guided tour or independent use, must provide certain training and instruction prior to the rental.  This includes training regarding the operational functions, navigable rules, safe practices, and local hazards.  The law allows only certified instructors to provide the mandatory training, and the participants must sign off that they received the training.  Additionally, all renters born after 1988 must now pass a written examination covering jet ski safety at the rental site prior to the rental.  These safety requirements are a result of the enormous amount of jet ski collisions that have occurred throughout Florida as the industry has soared.

Clearly, these jet ski statutes promote safety for inexperienced renters and anyone who may come in contact with them in the water.  In our experience, however, these statutes are violated all too often.  Jet ski rental companies simply do not spend the time to train and instruct rental customers pursuant to the statutes.  They advertise to the public that jet skis are safe, entry-level devices that require no previous experience.  They then rush renters through the process and place them in the water to operate these dangerous instrumentalities with virtually no training and hope for the best.  In many cases our firm has handled, our clients were provided with no training or instruction at all.

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Just two days after the Pulse nightclub massacre in Orlando, a judge in Connecticut issued an order denying a motion to dismiss filed by the manufacturer of the AR-15 semiautomatic machine gun used by the Sandy Hook Elementary School murderer. Though the manufacturers and models differ, the Sig Sauer MCX used in Orlando is of similar aesthetics and lethality as the AR-15.

This ruling does not mean the Sandy Hook plaintiffs will prevail, however. Nor, unfortunately, does it afford much hope for potential Orlando plaintiffs hoping to hold Sig Sauer accountable.

The Sandy Hook plaintiffs are seeking to hold, among other defendants, Bushmaster, manufacturer of the AR-15 used in the Sandy Hook tragedy, liable for, among other things, the wrongful deaths of those slain at the elementary school. Among its 33 counts, the complaint alleges that the sale of the AR-15 to a civilian market posed an unreasonable risk of physical injury to others, as a mass casualty event was within the scope of the risk created by the defendant’s marketing and sales; that the AR-15’s ability to fire rounds quickly created an unreasonable risk that it would inflict great casualties before police intervention; and that the defendant “unethically, oppressively, immorally, and unscrupulously marketed and promoted the assaultive qualities and military uses of AR-15s to civilian purchasers…with the expectation and intent that possession and control of these weapons would be shared with and/or transferred to unscreened civilian users following purchase.” The defense countered that the Protection of Lawful Commerce in Arms Act (“PLCAA”) affords gun manufacturers broad immunity for the shooting deaths administered by eventual purchasers of its firearms.

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On Wednesday, a 17-hour search effort concluded after divers found the body of a  2-year-old boy who had been snatched by an alligator right in front of his dad.   The wild animal attacked Lane Graves who had been playing around in the water of the Seven Seas Lagoon at the Disney’s Grand Floridian Resort & Spa at around 9:15 p.m. on Tuesday night.

Catastrophic unavoidable accidents occur every day all across the country, but when someone or some entity’s negligence causes a catastrophe, it no longer is an accident, and it surely was avoidable.

What do we know about the Seven Seas Lagoon where the incident occurred?

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LeesfieldScolaro_logoLast month, we provided some tips on avoiding arbitration.

Thankfully, due to recent developments, you might not need that advice – at least when it comes to consumer financial products.

A few weeks ago, the Consumer Financial Protection Bureau, created by the Dodd-Frank legislation in the wake the 2008 financial crisis,  officially recommended a ban on mandatory arbitration and class waiver clauses in consumer financial products contracts. (See Summary of Proposal at the end of this blog entry.)

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The essential role of jurors at trial is to determine which party to “believe.”  Issues of law are handled by the judge, while factual issues and the credibility of the parties are solely for the jury.  The more complex the case, the more difficult it can be for jurors to make their important decision. However, when it comes to credibility, there is one constant: the jury will always trust the judge.  In cases involving negligence, what could be more effective for the Plaintiff than the judge instructing the jury that the Defendant was negligent?

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Time RunningGenerally, Continuances favor the Defendant—Not You.  As a plaintiff, you are not compensated until settlement or trial.  Meanwhile, your bills are adding up, your future remains uncertain, and the phrase “the wheels of justice turn slowly…” is not exactly soothing.

Why, then, is your lawyer agreeing to the defendant’s motion to continue the trial to a future date?  It should be noted that there are valid reasons for a plaintiff to agree to, or ask for, a continuance. Issues and exigencies are part of litigation. And you don’t want your attorney to be forced to try your case with inadequate preparation.
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