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Posts made in March, 2014

Florida Supreme Court Declares Medical Malpractice Wrongful Death Caps Unconstitutional

Posted by on Mar 27, 2014 in Medical Malpractice

Florida Supreme Court Declares Medical Malpractice Wrongful Death Caps Unconstitutional

In 2005, the Florida Legislature capitulated to the demands (and political donations) of the medical malpractice insurance industry and passed a law capping non-economic damages for surviving family members of anyone killed in Florida as a result of medical malpractice. In 2006, Michelle McCall was a young mother who tragically died as the result of the malpractice of several Air Force physicians during childbirth in the Florida panhandle.  Ms. McCall left behind a son, and her two parents.  The trial court that heard that case found the evidence in the case warranted an award of $500,000.00 to Ms. McCall’s surviving son for his pain and suffering, and $750,000.00 to each of her parents for theirs. However, because of Florida’s cap on damages passed the year before, the trial court was obligated to reduce the award to an aggregate of $1 million to be divided between the child and parents.  Had Ms. McCall had additional children, each of their claims would require a further division of the $1 million aggregate cap. Ms. McCall’s case (McCall v. United States) finally made it to the Florida Supreme Court last year.  Just last week, the Florida Supreme Court decided that the caps on damages in medical malpractice wrongful death cases were unconstitutional.  The Court reasoned that the caps were violative of the Equal Protection Clause of the Florida Constitution. The Court determined that the caps imposed an unfair and illogical burden on large families because each family member of a large family would automatically receive less compensation than members of small families — everything else being equal — because of the caps, regardless of the evidence of loss. Additionally, the Florida Supreme Court found that there really was no “crisis” or any other real or rational relationship between caps on non-economic damages and the health of the Florida medical industry.  Therefore, there was really no good policy reason to have caps on non-economic damages in wrongful death medical malpractice cases.  This is a good decision for anyone who has lost a family member in a medical negligence case. If you have any questions regarding caps on damages, or a Florida medical malpractice case, call Winter Park medical malpractice attorneys Kim Cullen and Robert Hemphill at...

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Failure To Show For Examination Not Proper Grounds To Withdraw Insurance Coverage

Posted by on Mar 26, 2014 in Motor vehicle accidents

Failure To Show For Examination Not Proper Grounds To Withdraw Insurance Coverage

It goes without saying that almost nobody reads their automobile insurance policy, and very few people are familiar with all of the terms and fine print.  Nevertheless, many readers of this blog probably realize that almost every car insurance policy sold in Florida contains a provision requiring the complete cooperation of the customer with the insurance company, and that one of the things that the insurance company can require is a medical examination of he customer arranged by the company. Over time, insurance companies have sometimes used medical examinations as a precursor or excuse to withdraw insurance coverage to their customers.  Companies will almost always hire doctors who have a history of finding that claimants are not seriously injured, if they find them to be injured at all.  Sometimes companies will unilaterally schedule examinations during work hours, or at other times that are clearly inconvenient for the insured. Last week the Florida Supreme Court issued an opinion that may be helpful to insurance consumers.  In State Farm v. Curran, America’s largest car insurance company was seeking to use an injured person’s refusal to submit to an unrestricted and unlimited medical examination as an excuse to deny Uninsured Motorist insurance coverage altogether. The Florida Supreme Court ruled that in order for an insurance company to deny coverage to a customer who has refused or failed to attend a medical examination, the insurance company must first carry the burden of proving that the customer’s failure to attend was prejudicial to the company. In this instance, State Farm would have had to offer some reasonable proof that there was something about Curran’s medical condition that was otherwise hidden to State Farm, but would have been revealed to State Farm had Curran attended the medical examination. In the Curran case, the Court found that State Farm could not carry its burden of proving prejudice.  However, in light of the holding in Curran, in future disputes like this one, it is very likely that  insurance companies will simply find doctors to review medical records and say that the insurance companies have been prejudiced by the lack of a medical examination. As a practical matter, we advise our clients to do everything in their power to actually attend reasonable medical examinations so disputes like this don’t happen in the first place. If you have any questions regarding Florida automobile insurance, or a medical examination following a Florida car accident, call Winter Park personal injury attorneys Kim Cullen and Robert Hemphill at 407-254-4901.  You may also wish to download a FREE copy of our free Florida car insurance book by visiting...

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Did Your Insurance Agent Get You What You Asked For (Or Needed)?

Posted by on Mar 14, 2014 in Uncategorized

Did Your Insurance Agent Get You What You Asked For (Or Needed)?

As Florida personal injury lawyers, we talk to people about insurance all the time.  Recently, we have encountered several situations with clients and potential clients where insurance agents have clearly failed to help their clients procure the insurance coverage that they wanted or really needed. Generally, insurance agents owe their clients/customers a fiduciary duty to look out for their clients’ best interests, and to use their professional expertise to advise clients about what their insurance needs are or should be.  When an insurance agent does not properly execute this job, and does not give sound advice to a client, the insurance agent can be held liable if the event or condition the client was concerned about happens and the client suffers damages. It occurs to me that certain insurance agents fail to take this responsibility very seriously, and often seem to approach their customers with a cookie-cutter mentality or philosophy.  It sometimes seems that insurance agents are more interested in selling the particular products or lines of coverage that the insurance companies want to sell, rather than selling the exact product that would be most helpful (or perfect) for their client. It is important to note that an agent’s duty to his client doesn’t stop the minute the policy is purchased.  We have recently been successful in collecting damages for a client who received notice of a potential claim, but was told by their insurance agent not to report the notice letter they received to their insurance company.    It was the agent’s insurance company — and the agent’s errors and omissions (i.e. malpractice) coverage that ultimately paid our client’s damages. If you have any questions regarding the purchase of insurance coverage, or if you think that your insurance agent caused you damages by doing a poor job helping you procure insurance coverage, call Winter Park personal injury attorneys Kim Cullen and Robert Hemphill at...

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