The new law denying injured persons any damages if they are more than 50% at fault could cause the plaintiff to shoot craps in mediation or negotiation.
The injured plaintiff now faces the risk of taking and recovering nothing unless she can convince an insurance company or a jury that she was not more than 50% at fault–a difficult if not impossible task in many cases where there is no way to objectively predict how a jury would apportion percentages of fault.
This will steeply compromise the plaintiff’s bargaining position in negotiation and mediation, which is precisely what the sponsors of the bill wanted. Faced with the prospect of getting nothing, plaintiffs may feel compelled either to accept a fraction of what they deserve, or risk losing it all.
The biggest change in Florida personal injury law is the change in the law of comparative negligence which now says that an injured party may not recover any damages if the injured party is more than 50 percent at fault.
This will affect every single case where both parties were partially at fault, and where the percentage of fault attributable to each is debatable, as is so often the case.
What if you were seriously injured in a collision at an intersection. In court, suppose the facts are contested, and a jury finds you to be 51% at fault in causing the collision, and the other driver to be 49% at fault.
You may have hospital bills, scars, permanent disabilities and lost earnings for which the other driver was 49% responsible. But rather than collect 49% of those damages from the other side, under the new law, you will get nothing. Nothing.
This means that a sizeable chunk of damages that were previously available under law no longer exists, and many injured persons will be denied recovery of a percentage of damages to which they were formerly entitled. A longstanding civil right to damages simply done away with by an act of the Legislature and the stroke of the Governor’s pen.
It started as a small cut. But the client was elderly, in her 80’s, and had pre-existing blood circulation problems. With the passage of time, the opening in the skin grew larger, and larger. And treating and dressing the wound became more and more difficult. The poor woman wound up with a 6-inch long and several inches wide opening in the flesh covering the top of her foot. The condition persisted and defied treatment for months, requiring highly specialized care.
An apparently minor accident on the job developed into a serious chronic injury for my client, who ultimately went on to recover–following a period of utter misery. Photos of the condition–which we will NOT publish here–provided compelling evidence which supported a confidential settlement with a major national supermarket chain, and the gratitude of a much relieved client.
If you’re a patient at Miami’s Jackson Memorial Hospital, it could have made a big difference whether your physician is acting on behalf of the University or on behalf of the Hospital.
The University is a privately-owned, deep pocket institution, fully collectible, and entitled to no special treatment under law. Whereas Jackson Memorial is a county Hospital, a public institution, covered by Florida sovereign immunity law, which carries all kinds of restrictions and limitations on recovery.
Legally, the question has now been put to rest. If you’re treated by a University of Miami doctor while at Jackson Memorial Hospital, by law, that doctor is deemed to be an agent of the Hospital, not an agent of the University.
A 2011 amendment to Florida’s sovereign immunity law specifically states that physicians from a medical school are agents of the state and entitled to sovereign immunity when the medical school contracts to provide medical care in a teaching Hospital. In accord with that change, Jackson and the University have re-written their long-standing operating agreement to provide that all UM faculty members are covered by sovereign immunity, even when caring for private paying patients, not just indigents.
As a result, the University is “immune” from getting sued because by law, its doctors are legally deemed agents of the public hospital with sovereign immunity. This arrangement has gone far in discouraging malpractice claims at Jackson–to the benefit of the Hospital and University, but also to the detriment of those patients who may have experienced the consequences of malpractice.
Personal Injury Attorney Mark Wolin proudly serves Florida and South Florida communities in Miami-Dade County, Monroe County and Broward County including Aventura, Bal Harbour, Bay Harbor Islands, Biscayne Gardens, Biscayne Park, Davis Harbor, El Portal, Hallandale, Hallandale Beach, Hialeah, Hollywood, Hollywood Beach, Liberty City, Little Haiti, Little River, Miami, Miami’s Upper East Side, Miami Beach, Miami Gardens, Miami Shores, North Bay Village, North Miami, North Miami Beach, Opa Locka, Pembroke Pines, Pembroke Park, Sunny Isles Beach and Surfside, Florida. View our privacy policy here.
