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Florida’s Motorcycle Fatality Problem

According to the National Highway Traffic Safety Administration (NHTSA), motorcycle deaths comprise 15% of all highway deaths in America. In contrast to cars, which have seen a consistent national decline in fatal accidents over the last 20 years, motorcycle deaths have seen an increase. In Florida more people die in motorcycle accidents than in any other state in the nation. Let’s take a closer look at Florida’s problem.

  • The temperate climate is highly inviting for motorcyclists. Despite regular spontaneous downpours, the weather is warm and sunny for most of the year. Florida motorists rarely encounter frost or ice on the roads, and never have to wait for a plough.
  • Florida hosts many long stretches of two-lane highway that meander through wetlands and along scenic coastline, making the motorcycle an enjoyable method of transportation. When the highways get crowded with tourists, smaller roads make a great venue for motorcycles.
  • With such fine conditions, a large number of people choose motorcycles as the favored method of transportation. In 2014 there were over 500,000 registered motorcycle owners in the state. Among the state’s most recent motorcycle fatalities, one-third of drivers were over the age of 50, reflecting the population’s aging style.
  • In the year 2000, Florida lawmakers repealed the universal helmet law. Since that time, helmet use is only required for riders under the age of 18. Only about half of all riders wear helmets. Motorcyclists are 30 times more likely to die in an accident than those riding in cars; the lack of protective gear increases the risk of death in an accident by another 37%.
  • Florida drivers have a speeding problem, and motorcyclists have a visibility problem. The combination of high speeds and lack of visibility spells trouble for motorcycles.

The conditions for motorcycle accidents are ripe in the Sunshine State, and motorcycle accidents result in many serious head injuries and fatalities. The state can impose heavy fines for speeding and reconsider the helmet law, but ultimately riders are responsible for reducing accidents.

If you are injured in a motorcycle accident, you need a lawyer. You may be eligible to collect monetary compensation for your injuries. Call the Law Office of Lytal, Reiter, Smith, Ivy & Fronrath at 561-655-1990 or contact us online today.

Who is to Blame for Railroad Accidents?

Railroad accidents are not common, but when they happen they often involve serious injury or fatality. The family of a train accident victim has a right to pursue justice in the wake of any accident, and in some cases hold the responsible party liable for damages. In some cases, if the victim was also negligent, the liability is shared and the damages reduced.

In a recent tragedy a train struck a car that was stopped on the tracks in Pompano Beach. A woman who was a passenger in the car was killed, though the driver and other passengers escaped injury. Upon investigation, Broward County Sheriff’s officers concluded that the warning signal system was operating properly at the time of the crash. In other words, the car that was struck pulled onto the train tracks despite the fact that the warning lights were flashing. As this was the case, the transit authorities are not likely to be held liable for the tragic death.

In a 2014 train-related death, also in Pompano Beach, a man was apparently lying on the tracks as a train approached, and the conductor was unable to stop the train in time. Clearly if a person was lying on the train tracks, the approaching train can in no way be held responsible for the man’s death.

However, in a 2012 incident involving the Miami airport people mover, several people were injured when a train car derailed. Following an investigation it was determined that certain bolts were not properly secured or torqued, and this was the direct cause of the accident. As the investigation ruled that, despite the fact that the train had undergone a routine inspection just hours before, human error was the cause of the crash. The maintenance company responsible for inspecting the people mover is legally liable for damages.

Trains travel at high speeds and are therefore difficult to stop quickly. When an accident occurs, it is usually unavoidable. When determining fault in a train accident it is crucial to gain an accurate picture of the circumstances. The litigation team at Lytal, Reiter, Smith, Ivy & Fronrath is dedicated to investigating your case thoroughly and winning you the maximum compensation you deserve. Call our West Palm Beach offices at 561-655-1990 or contact us online to schedule a consultation.

Dog Owner Gets Bitten by Dog Bite Law

In Florida, a dog owner is legally responsible for the dog’s behavior, especially if the dog harms another person. In a recent incident, a Riviera Beach resident was in the process of being pursued and arrested by police and ordered his Pitt Bull to attack the arresting officer. The dog, possibly confused by the command, bit his owner in the buttocks instead. The man was arrested and charged with both resisting arrest and aggravated assault against the officer.

Had the dog actually obeyed the owner and bitten the police officer, there could have been a much different ending to the story. In many cases, police officers who are startled by dogs react by shooting them. While homeowners have the right to protect their property and family with a dog, there are strict regulations governing the dog owner’s responsibilities to keep humans safe from a dog’s vicious behavior.

Florida’s dog bit statute specifies that a dog’s owner is wholly responsible for biting a person who is legally on their property, as long as the bite victim was not doing anything to actively or intentionally provoke the dog. The police officer in the above story falls into the category of one who was mandated to be on the property by law, as would a firefighter, a paramedic or a postman. The dog owner is responsible for the damage from a dog bite, whether or not the owner believed the dog was vicious or had any evidence that the dog had bitten in the past.

A dog owner is not liable — unless the victim is under the age of six — if the owner displays a sign that says “bad dog” in a clear and prominent place. In some cases the liability may be shared between the dog owner and the victim if the victim was negligent or actively provoked the dog.

If a dog bites a person, the dog owner has an obligation to notify the authorities and have the dog checked and quarantined for rabies. In most cases the dog can be quarantined inside the owner’s home.

Dog ownership comes with many responsibilities, especially when owning a breed known for vicious or highly protective behavior. It is essential that dog owners be held liable for their dogs’ behavior. A dog bite victim can play an important role in enforcing dog bite laws in Florida by reporting biting incidents to local authorities.

If you have been bitten by a dog, speak to a dog bite attorney at Lytal, Reiter, Smith, Ivy & Fronrath. We are dedicated to keeping dog owners responsible for the behavior of their pets. Call our West Palm Beach office at 561-655-1990 or contact us online to schedule a consultation.

Suing Your Contractor for Wrongful Death

An accidental death of a loved one is always difficult. There are circumstances that are simply beyond our control, and the survivors are left to surrender to fate. When the negligence of one person directly causes the death of another, the family members of the victim have the right to hold that person financially responsible by pursuing a wrongful death lawsuit.

A construction project is an area that can contain many dangers, some of them potentially fatal. For this reason, construction is governed by state and local laws through a number of permit and certification requirements. A contractor is any person in a position of responsibility in a construction project, who is authorized to supervise a construction project.

When a construction project of any size goes wrong, and a person dies as a result of improper construction practices, the contractor may be liable. The contractor might be charged in a wrongful death lawsuit with:

  • Negligence — the failure to take proper care
  • Malfeasance — intentional conduct that is unlawful
  • Misfeasance — taking action that is legal but is performed incorrectly
  • Nonfeasance — failure to take action to prevent a danger

Some common areas of danger during a construction project include electrical systems, support beams in ceilings, walls and floors, and toxic or flammable chemicals left unattended at the worksite.

A construction-related accident can take place during the construction process or after the completion of the project. If the contractor’s work or inattention directly contributed to the victim’s death, the family of the victim can file a lawsuit. In Florida, a plaintiff might be eligible to receive both monetary damages, including medical expenses, lost wages, funeral costs and repair costs, and non-monetary punitive damages to compensate for pain and suffering.

In Florida, there is a statute of limitations on wrongful death lawsuits of two years. In other words, a person or estate that files a wrongful death suit has a maximum of two years from the time of the victim’s death to file.

The accidental death of a loved one can be unbearable, and the victim’s family may not be in a position to manage legal details for a long time. A member of the litigation team at the Law Office of Lytal, Reiter, Smith, Ivy & Fronrath is eager to represent you in your wrongful death case. Call us at 561-655-1990 or contact us online today.

Wellington Regional Medical Center v. Giovanni Pillonato:  A Win for Newborns Who Suffer Brain Injury During Delivery. 

The Fourth District’s recent decision in Wellington Regional Medical Center v. Giovanni Pillonato, 2016 WL 4548485 (Fla. 4th DCA Sept. 1, 2016), strikes a blow against the assault on the right of recovery for obstetrical patients whose newborn suffers catastrophic brain injuries during childbirth.  It does so by showing that “NICA Notice” must be provided by a hospital upon the formation of the “provider-obstetrical patient relationship,” which may occur during an obstetrical patient’s emergency room visit to the hospital, so long as that visit was “obstetrical in nature”—notwithstanding whether the obstetrical patient provided the hospital with actual knowledge of her intent to deliver at the hospital.

Background:  In the latter part of last century, OB/GYN healthcare providers were, apparently, being taxed too high for medical malpractice insurance because of the damage recoveries obtained in lawsuits involving brain injuries suffered by newborns during childbirth.  In response, the Florida Legislature passed into law the Florida Birth-Related Neurological Injury Compensation Plan (the “NICA Plan”), which paralleled a similar plan adopted in the State of Virginia.  Under the NICA Plan—as carried out by  the Florida Birth-Related Neurological Injury Compensation Association (“NICA”)—the remedies of a newborn who suffers catastrophic brain injuries during childbirth are limited to the statutorily created damages caps provided under the NICA Plan.  These damages caps pale in comparison to the civil remedies a newborn could obtain for his or her catastrophic brain injuries.  However, to obtain these protections under the NICA Plan, a healthcare provider (including hospitals) must satisfy the notice requirements under the NICA Plan, as delineated in section 766.316, Florida Statutes (“NICA Notice”).

What are Section 766.316’s Notice Requirements?As part of a “legislative compromise” for the abrogation of an obstetrical patient’s civil remedies for brain injuries sustained during childbirth, the Florida Legislature, via section 766.316, requires that, to invoke the protections of the NICA Plan, “each hospital with a participating physician on its staff and each participating physician . . . shall provide notice to the obstetrical patients as to the limited no-fault alternative for birth-related neurological injuries.”  Pursuant to this statutory language, the Florida Supreme Court, in Galen of Fla. v. Braniff, 696 So. 2d 308 (Fla. 1997), held that to obtain the NICA Plan protections, a healthcare provider or hospital must provide notice within a “reasonable time prior to delivery, when practicable.”  The Court further held that the determination regarding the reasonableness of NICA Notice is done on “a case-by-case basis” and, hence, will varying depending on the circumstances of each case.  The guiding principal for this case-by-case determination is whether said NICA Notice provided the “obstetrical patient an opportunity to make an informed choice between using a health care provider participating in the NICA plan or using a provider who is not a participant and thereby preserving her civil remedies.”

Formation of the “Provider-Obstetrical Patient Relationship” Triggers the Notice Requirement:  Post-Galen, questions remained as to when the NICA Notice requirement is “triggered,” i.e., at what point in time does a healthcare provider or hospital’s responsibility to provide NICA Notice begin.  The Fifth District in Weeks v. Fla. Birth-Related Neurological, 977 So. 2d 616 (Fla. 5th DCA 2008) provided what appears to be the controlling determination regarding this issue.  There, the Fifth District emphasized section 766.316’s following language: “Notice to obstetrical patients of participation in the plan,” and “shall provide notice to the obstetrical patients.”  In construing this language to logically effectuate section 766.316’s notice requirement, the Fifth District stated:  “What this emphasized language clearly expresses to us is that the formation of the provider-obstetrical patient relationship is what triggers the obligation to furnish notice.”  Evidencing that Weeks is the controlling authority on this issue is that the aforementioned interpretation was subsequently adopted by the Second District in Tarpon Springs Hospital Foundation v. Anderson, 34 So. 3d 742 (Fla. 2d DCA 2010).  There, in relying on Weeks, the district court stated:  “Thus, the establishment of the patient-provider relationship well before delivery triggers the obligation to furnish the patient with notice within a reasonable time.”

Thus, in accordance with the language of section 766.316, a health care provider’s obligation to furnish NICA notice is triggered upon the formation of the provider-obstetrical patient relationship. Furthermore, the Weeks court, in following Galen’s “case-by-case” standard, emphasized that “[t]he determination of when this relationship commences is a question of fact” that “depends upon the circumstances,” with “a central consideration” being “whether the patient received the notice in sufficient time to make a meaningful choice of whether to select another provider prior to delivery.”  The court emphasized that this is “a primary purpose of the notice requirement.”

Question Clarified by Pinto- When is the “Provider-Obstetrical Patient Relationship” (the “Relationship”) Formed?:  The central issue in Wellington Regional was when the Relationship was formed between a patient and a hospital  In the Administrative Law Judge’s decision below, she determined that the Relationship formed during an October 2011 emergency room visit that was, extensively, obstetrical in nature.  The forms used were labeled “obstetrical,” and the obstetrical patient underwent extensive care and testing (as ordered by her OB/GYN) that was, without a doubt, obstetrical in nature.  The patient, however, did not explicitly inform the hospital that she planned to deliver at the hospital.  Despite another obstetrical outpatient visit in December 2011, the hospital did not provide NICA Notice until the day of delivery (in January 2012), at which time the newborn infant suffered brain injuries.  The ALJ held that because the Relationship formed during the October 2011 obstetrical visit, the NICA Notice was insufficient and the hospital was not entitled to the protections of the NICA Plan.

On appeal, the hospital contended that because the patient did not provide the hospital with actual knowledge of her intent to deliver at its facility, the NICA Notice requirement was not triggered during the October 2011 visit.  The patient contended that because the October 2011 visit was obstetrical nature, the Relationship formed during the October 2011 visit and the day of delivery notice was insufficient.

Fourth District’s Decision and Takeaway:  The Fourth District’s decision in Wellington Regional was a “per curiam affirmance” without written opinion (a “PCA”) of the ALJ’s decision below.  As a PCA, it is not considered controlling precedent.  But, the decision is highly persuasive in that it did affirm the ALJ’s determination that a patient’s visit to a hospital emergency room, when obstetrical in nature, forms the Relationship and triggers the NICA notice requirement—even if the patient does not provide the hospital with actual knowledge of her intent to deliver.  This gives greater protections for obstetrical patients, as it requires that hospitals, when providing obstetrical care, must provide the obstetrical patient with NICA Notice—placing the onus on the hospital to provide an obstetrical patient with NICA Notice as soon as obstetrical care is provided.  This should compel hospitals to be more vigilant in providing NICA Notice immediately upon providing obstetrical care.  Perhaps, it may even persuade hospitals to take a moment and ask the obstetrical patient if they plan to deliver at the hospital during the obstetrical visit, whereupon it is made clear as to whether NICA Notice must or must not be provided.

Anthony M. Stella, Esq.
Appellate & Litigation Support Attorney
Lytal, Reiter, Smith, Ivey & Fronrath LLP
515 N. Flagler Drive, Ste. 1000
West Palm Beach, FL 33401
Direct Line: (561) 820-2235
Main Line:   (561) 655-1990
Cell Phone:  (954) 336-7493

Who is Responsible for Faulty Playground Equipment?

When children go out to play, many dangers await. Parents can only do so much in teaching children to be careful, look both ways, don’t talk to strangers, don’t run on the pool deck. But when a child in injured due to an unsafe play structure or play area, there may be grounds for a lawsuit.

In a recent South Florida case, a two-year-old boy was playing on a local playground when he fell and sustained serious injuries. The only witness to the fall was his nanny. The father of the child filed a product liability lawsuit against the company that manufactured the play structure, Bogatov, for not providing adequate handrails, and the local city government of Hollandale Beach for not providing adequate padding on the playground floor.

In order to win this lawsuit, the plaintiff would have to prove that:

  • The child was injured
  • The playground manufacturer was negligent
  • The child’s injuries were a direct result of the company’s negligence

In addition, the plaintiff would have to prove that the city was negligent in making sure the playground was safely padded.

The child’s injuries were never called into question. He suffered a fractured femur and was confined to a wheelchair for several months.

In terms of liability, it was unclear where the child had been immediately prior to the fall. Before the case reached the fourth district court of appeals, Bogatov had moved for dismissal, because the nanny had stated that the child was not actually on the structure when he fell. The father had originally charged that the play structure did not have enough grab handles, and the child’s fall was caused directly by this defect. In later testimony she said the boy was running around when he fell, and the injury was caused by inadequate woodchip padding, which is the responsibility of the city.

The court of appeals reversed the original dismissal, and now both the city and Bogatov are back in the hot seat.

Accidents happen, and sometimes it is impossible to say who is at fault. Then again, sometimes the legal process can bring a negligent person or company to justice for contributing to an accident. If you have been injured by a defective product, we want to know about it. Call an attorney at the West Palm Beach office of Lytal, Reiter, Smith, Ivy & Fronrath. Schedule a free consultation by calling 561-655-1990 or contact us online today.

Can I Sue My Doctor for Prescribing Medical Marijuana?

In contrast to the love affair many US states are having with medical marijuana, Florida’s relationship to the versatile drug is lukewarm. As of 2014, the first wave of legalization enabled doctors to prescribe non-euphoric strains of marijuana to be distributed to cancer patients, and a later version allowed higher TCH products to be prescribed only to patients with less than a year to live. As reluctant as lawmakers may be to go legal in Florida, it may be the doctors themselves who are slowing the tide.

Physicians may be eager to help their patients by relieving suffering, but the fear of malpractice lawsuits is a very real and present danger for many. Legal authorities, however, advise doctors that they have nothing more to fear from marijuana than from other pain-relieving narcotics. Yet.

As of now there have been no medical malpractice lawsuits filed that claim a doctor was negligent or inappropriate with regards to the recommendation for medical cannabis. The legal profession makes a clear distinction between prescribing a medication or treatment and recommending one. At this point doctors neither prescribe nor distribute marijuana, but issue a legal statement that a patient has a condition that may benefit from treatment with cannabis.

In a highly litigious society, it is likely that some such trend will emerge, such as it has around the misuse of opioid-based pain medications. Patients suffering with addiction and withdrawal from opioids have claimed that their doctors should not have prescribed the drugs from the outset. While this is difficult to prove, it can form the basis of a case that calls a doctor’s judgment into question. At this point in the conversation, it would appear that doctors are still reluctant to suggest marijuana as a treatment, so the motivation for a lawsuit — to prevent future medical negligence — seems unnecessary.

While medical marijuana has not yet reached full acceptance into the medical professional arsenal in Florida, it would seem to be inevitable. As its use becomes more common, it will remain to be seen if patients who misuse or overuse will be able to blame their doctors.

Medical malpractice is a serious matter. If you or someone you love has been harmed or injured by the negligence of a medical professional, call an attorney. At Lytal, Reiter, Smith, Ivy & Fronrath we care about getting you the compensation you deserve. Call our West Palm Beach office at 561-655-1990 or contact us online.

Samsung’s Massive Galaxy Note 7 Recall Brings Battery-Maker Into Focus

‘Minor flaw in the battery manufacturing process’ causes phones to explode; Samsung SDI supplied about 65% of batteries

Read more: source Wall Street Journal

If you or a loved one have been injured by a defective device or have questions about a defective product, call Lytal, Reiter, Smith, Ivey & Frorath at their West Palm Beach office.  561-655-1990

Can A School District Makes a Vaccine Mandatory?

The vaccine debate might be loud and busy on the Internet, but it is relatively quiet in the public school system. In all 50 states, children must be fully vaccinated against certain diseases in order to attend public school. That policy, however, is semi-permeable, both in the lack of scrutiny of medical records and in the generous loophole provided by certain exemptions.

In Florida, parents are permitted exemption from vaccinations on both religious and medical grounds. Some states allow exemption on philosophical grounds as well, though not Florida.

All 50 states require children to be vaccinated against polio, measles, mumps, rubella, diphtheria, tetanus and pertussis. In Pennsylvania, the Allegheny County school district is now attempting to introduce legislation that would add HPV (Human Papillomavirus) to this list. HPV is a sexually transmitted disease that is asymptomatic and is the leading cause of cervical cancer in the US. The district would require all boys and girls to receive the HPV vaccine before they would be allowed to enter seventh grade.

The HPV vaccine is not without controversy. Of the two vaccines on the market, Gardasil and Cervarix, Gardasil is both the more effective of the two and the more commonly associated with side effects. Among the common side effects are:

  • Fever
  • Local pain
  • Muscle and joint pain
  • Fatigue
  • Paralysis
  • Blot clots

In some cases, parents have reported significant changes in the health and overall functioning of their daughters after receiving the Gardasil vaccine. There have been over 8,000 complaints registered with the Centers for Disease Control and Prevention, and numerous wrongful death and class action lawsuits against the manufacturer of the vaccine, Merck & Co.

That said, it is clear that the introduction of the vaccine has greatly reduced the spread of HPV, and that has subsequently reduced the rate of cervical cancer. That is not to say that it is legal, moral or right to mandate the administration of a potentially dangerous drug to children so they can attend school.

You have a right to monetary compensation if you are harmed by a dangerous device or drug. Contact an attorney at the West Palm Beach Law Office of Lytal, Reiter, Smith, Ivy & Fronrath by calling 561-655-1990 or contact us online. We look forward to speaking to you about your case.

Pedestrian Crossings Can Be Safer

Pedestrians have the right of way while in a crosswalk in every state in the nation. That does not, however, guarantee a safe journey from one curb to the other. In fact, 4500 pedestrians are killed crossing streets every year. The contest between a car and a person is not a very fair one, and the motorist is nearly always assumed to be at fault. With some attention to design and infrastructure of crossing intersections, many pedestrian accidents can be avoided.

There are a number of changes being implemented in cities around the US that may be instrumental in increasing pedestrian safety, including:

  • Raising crosswalk to curb level — elevating the crosswalk gives more visibility to pedestrians, especially to children;
  • Installing speed bumps — most pedestrians are killed by cars that are traveling at 40 mph or faster;
  • Using a bright color paint — increasing visibility of crosswalk lines gives drivers more awareness of crossing areas;
  • Install pedestrian crossing light — a designated light eliminates driver error
  • Reduce speed limit — while not enough, slowing down is an important first step;
  • Enforce safe driving at trouble spots — when a law is enforced and drivers are fined for not stopping, drivers form new habits and save lives.

 An additional measure that may save pedestrian lives is limiting the roadway to two lanes. Without a second lane available in each direction, drivers are not able to pass a car that is stopped at a crosswalk. Passing at a crosswalk is extremely dangerous and causes many pedestrian injury and death accidents.

When a driver hits a pedestrian that is crossing in a crosswalk, the driver is at fault and is liable for damages. If the pedestrian is killed, the driver is liable for wrongful death — a situation in which the negligence of a person causes the death of another person. The surviving family members of a wrongful death victim have the right to sue for damages, including payment of medical bills, funeral expenses, lost wages, as well as pain and suffering.

If you or someone you love has been injured in a pedestrian accident, you need a lawyer. A wrongful death attorney at the Law Offices of Lytal, Reiter, Smith, Ivy & Fronrath is available to advocate for your rights. Call our West Palm Beach office at 561-655-1990 or contact us online to schedule your free consultation.