Florida Personal Injury Lawyer Blog

As personal injury attorneys representing seriously injured victims of car accidents and fall downs throughout Florida, including, Miami, Fort Lauderdale and the Palm Beaches, we know that most of our clients are surprised when we inform them that they must repay their health insurance companies, Medicare or Medicaid for any payments they made towards medical bills for treatment of injuries suffered in an accident.

This repayment requirement is based upon the legal principle of subrogation. Essentially, this means that the health insurance company stands in the shoes of the accident victim. Most states have specific laws which protect the rights of the health insurance companies and Medicaid; Medicare is protected under Federal Law. When we are able to settle an accident victim's case, we attempt to reduce the amount being sought as repayment by these payers. And, while Florida Law requires private health insurance companies to take various factors into consideration in reducing their subrogation interest, including the attorney's fees and the injured person's comparative negligence, state laws protect Medicaid from such equitable reductions.

Now, thanks to a recent ruling from the United States Supreme Court, Medicaid will have to take these factors into consideration in reducing their subrogation claims. In Wos vs. Ema, the Supreme Court held that Federal anti-lien laws prohibit states from enacting their own laws which fail to take determine what portion of an accident victim's recovery was for the medical bills, versus their lost wages or pain and suffering.

We are hopeful that this "law of the land" will assist us in helping our client's maximize their net recoveries, by repaying less of their case compensation to Medicaid. Although, given Florida Medicaid's prior stance on such negotiations, we anticipate needing the presiding judge in each case to Order Medicaid that they must follow the law, just like everyone else.

According to a recent study by the Johns Hopkins Center for Injury Research, if states, including Florida, monitored and forced compliance with safety laws, they could prevent millions of unnecessary personal injuries annually.

As personal injury attorneys representing victims of accidents in the Palm Beaches, Ft. Lauderdale and Miami, we know too well that the leading cause of wrongful deaths of people age one to 40 years are accidental injuries. Yet amazingly many states, including Florida, refuse to pass common sense laws which would prevent injuries, save lives and lower overall health care costs.

While Florida does have mandatory seat-belt laws, which are proven to prevent about 12,000 annual car accident wrongful deaths; our legislature passed a law allowing motorcycle riders not to wear a helmet. Considering that helmets prevent approximately 1,5000 lives annually, and given the state's obligation to pay the enormous medical bills incurred by those who sustain brain injuries from head trauma, such lack of legislative action is certainly reckless .

Not all blame falls upon the state, as national injury prevention funding has decreased almost twenty five percent over the last five years. We can only hope that the Florida Legislature will have the fortitude to disregard lobbyists and take aggressive action to pass and enforce needed safety laws.

As personal injury lawyers helping the innocent victims of deadly car accidents throughout Florida, including Miami, Fort Lauderdale and the Palm Beaches, we are certainly glad to hear that the National Transportation Safety Board (NTSB) is seeking to take action to reduce the number of drunk driving deaths.

Although the number of wrongful deaths caused by drunk drivers has dropped from an annual high of over 18,000 in the late 80s, to just over 10,000 in the past year, the needed decrease has plateaued over the past 8 years.

Proposed solutions include ignition locks which stop an impaired driver from starting a vehicle, and increased enforcement of drunk driving laws.

We commend the NTSB for their proactive attempts to reduce the deadly consequences of drunk driving.

In what is being claimed as a victory for victims of personal injury caused by the negligence of employees of the State of Florida or any of its counties or cities, the Florida Legislature agreed to raise the sovereign immunity limits of compensation from $100,000.00 to $200,000.00 per person. This is the first increase of these limits in thirty years.

For too long, those who suffered severe and life altering injuries as a result of the negligence of sovereign employees, such as police officers and bus drivers who cause many car accidents due to careless driving, and doctors who commit malpractice at State funded hospitals, were limited in their recovery to the wholly inadequate sum of $100,000.00. Any additional damages required the legislature to pass a "claims bill," a process which places an undue burden, with little chance of success, upon the injured victim.

These new damage limits, assuming the Governor signs the bill into law, will go into effect for accidents occurring after October 2011. While these damage limits remain too low to adequate compensate those victims whose lives are turned upside down when a government employee carelessly disregards their obligations, at least the accident victims have an opportunity to receive some more compensation.

In some great news for children who are unfortunately injured in Florida, the Florida Supreme Court ruled that parents are not authorized to sign a personal injury or accident release/waiver on behalf of their minor child. As Florida Lawyers, we commend the Court's ruling, which will allow children injured while participating in a commercial activity, such as at amusement parks, to seek compensation for damages caused by the negligence of the business operator.

The Florida Supreme Court said there is injustice when a parent agrees to waive the personal injury claims of a minor child, depriving the child of the right to damages when they are injured as a result of another party’s negligence. The Court reasoned that when a parent executes such a release and a child is injured, the operator of the activity escapes liability while the parent, and on many occasions, the State, is left to deal with the financial burden of an injured child. Therefore, when a parent signs a pre-personal injury or accident release on behalf of their minor child, the parent is not protecting the welfare of the child, but is instead protecting the interests of the activity provider.

We can only hope that this ruling will finally force operators of businesses which cater to minors to take the necessary precautions to protect their young patrons.