Archives for October 2013

Florida Pedestrian Accident Law: Common and Frequently Asked Questions When Pedestrians are Hit by a Car, Truck, Van or Other Motor Vehicle

Florida Pedestrian Accident Law_fightsforyou.netAll too common on South Florida’s roadways, pedestrians and bicycle riders are hit by cars, trucks, vans, taxi’s, motorcycles, mopeds, scooters, golf carts, segways or even public school buses, while jogging, skateboarding, roller skating, rollerblading, in line skating, walking on a sidewalk or even while crossing a street or highway or using a crosswalk — to which the pedestrians sustain serious and catastrophic injuries (usually involving broken arms and elbows, broken hips, fractured knees and broken legs, ORIF surgery, head injuries, torn ligaments, torn tendons and rotator cuff or shoulder labrum injuries (SLAP tear), concussions, neck and back spinal surgeries (fusion, discectomy, decompression, laminectomy, ACDF, etc.), traumatic brain injuries (TBI), or even death) in these types of Florida pedestrian car accidents.  Believe it or not, a lot of these Florida pedestrian automobile accidents can be prevented because a good amount of them are caused by drivers who are not paying attention, drivers who are distracted, drivers who are talking or texting on their cellular phones, or drivers who are driving drunk, under the influence of drugs or alcohol (DUI) or driving while intoxicated (DWI). Sometimes, pedestrians are hit by cars near poorly marked off construction sites or road construction areas, or flag men are not doing their jobs by warning pedestrians of the dangerous road or construction site conditions.

Some of the most common causes of Hialeah Florida pedestrian accidents can include the following:

  • Drivers who are drunk, tired or sleepy, or simply distracted and not paying attention;
  • Drivers who are speeding, driving in a reckless manner, talking on a cell phone or texting on a cell phone;
  • Intersections that are dangerous and not properly marked (such as with a crosswalk) or controlled by traffic control devices (such as with yield signs, stop signs, school crossing signs or stop lights);
  • Road construction areas that are not barricaded off, properly worked by flag men or have insufficient lighting;
  • Obstructions on private residential and commercial properties that can block the view or sight of pedestrians or cars (such as overgrown trees, high fences or other artificially created conditions on the property); and
  • Failure of pedestrians to wear brightly colored clothing or utilize bicycle or jogging lights.

Some of the most common and frequently asked questions of a Miami Florida pedestrian accident lawyer when a pedestrian or bicycle is hit by a car, truck, motorcycle or other motor vehicle, include the following:

What is the definition of a pedestrian under Florida traffic law?

Under Florida Statute 316.003, a pedestrian is considered any person afoot, and for which Florida pedestrians are considered traffic while using any street or highway for purposes of travel. Florida Pedestrians are to use designated cross walks (any portion of a roadway at an intersection or elsewhere distinctly indicated for pedestrian crossing by lines or other markings on the surface) when crossing the street. Of note, Florida pedestrians have the right of way in general as compared to car, trucks, vans, motorcycles or other motor vehicles — this right of way is described under Florida pedestrian accident law as the right of one vehicle or pedestrian to proceed in a lawful manner in preference to another vehicle or pedestrian approaching under such circumstances of direction, speed, and proximity as to give rise to danger of collision unless one grants precedence to the other.  In fact, pedestrians can utilize safety zones on the respective roadways which they are traveling, which are defined as the area or space officially set apart within a roadway for the exclusive use of pedestrians and protected or so marked by adequate signs or authorized pavement markings as to be plainly visible at all times while set apart as a safety zone. Florida pedestrians can also use designated side walks which are defined as those portions of a street between the curbline, or the lateral line, of a roadway and the adjacent property lines, intended for use by pedestrians.

What are a pedestrian’s responsibility under Florida law when crossing a street when a traffic light is green, yellow or red?

According to Florida Statute 316.075, a pedestrian facing a green light can cross the street or roadway (except when the green signal is a turn arrow) within any marked or unmarked crosswalk — to which all motor vehicles are required to yield the right of way to pedestrians lawfully within the intersection or an adjacent crosswalk at the time such signal is exhibited.  If the light is yellow or red, a pedestrian is not to enter the crosswalk or roadway unless they have a proper pedestrian crossing signal.

If I improperly enter a crosswalk, road or highway as a pedestrian, do cars or other motor vehicles still have a responsibility to avoid hitting me under Florida pedestrian accident law?

Yes.  According to Florida Statute 316.130(15), even in this scenario where a pedestrian enters a crosswalk, highway, street or roadway in an improper manner, every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian or any person propelling a human-powered vehicle (such as a bicycle, a child riding a tricycle, skateboard, roller skates, rollerblades, etc.) and give warning when necessary and exercise proper precaution upon observing any child or any obviously confused or incapacitated person. This means that the driver of a taxicab, bus, motorcycle or other motor vehicle is in a better position to avoid serious injury or death to a pedestrian even when the pedestrian may not be following his or her duties under Florida pedestrian law. Thus, in a case where a pedestrian is crossing a roadway outside of a crosswalk, or is attempting to cross Florida’s interstates, turnpike or highways, the driver of the vehicle must still be paying attention and actively look for dangerous situations in the roadway, including pedestrians, so as to avoid hitting and killing them — which could subject the driver a Miami Florida wrongful death lawsuit filed by a Florida wrongful death accident lawyer.

Do Florida drivers have to yield the right of way to pedestrian highway construction workers?

Yes.  According to Florida Statute 316.079, every driver of a vehicle shall yield the right-of-way to a pedestrian worker and flagperson engaged in maintenance or construction work on a highway whenever the driver is reasonably and lawfully notified of the presence of such worker by a flag person and a warning sign or device.  Moreover, every driver of a vehicle on public roadways shall yield the right-of-way to an escort vehicle or pedestrian flag person that is engaged in the management of highway movements of an oversize vehicle permitted pursuant to s. 316.550, provided the driver is reasonably and lawfully notified of the presence of such vehicle or flag person.

What are a Florida pedestrian’s general responsibility under Florida pedestrian accident law?

According to Florida Statute 316.130, general requirements under Florida traffic law regarding pedestrians includes the following:

  • A pedestrian shall obey the instructions of any official traffic control device specifically applicable to the pedestrian unless otherwise directed by a police officer;

  • Pedestrians shall be subject to traffic control signals at intersections as provided in s. 316.075, but at all other places pedestrians shall be accorded the privileges and be subject to the restrictions stated under Chapter 316 of the Florida Statutes;

  • Where sidewalks are provided, no pedestrian shall, unless required by other circumstances, walk along and upon the portion of a roadway paved for vehicular traffic (ie., pedestrians must use a sidewalk if one is available);

  • Where sidewalks are not provided, any pedestrian walking along and upon a highway shall, when practicable, walk only on the shoulder on the left side of the roadway in relation to the pedestrian’s direction of travel, facing traffic which may approach from the opposite direction (ie., Florida pedestrians must face traffic when no sidewalk is available);

  • No pedestrian or person shall stand in the portion of a roadway paved for vehicular traffic for the purpose of soliciting a ride, employment, or business from the occupant of any vehicle (ie, people selling water, fruit or other drinks in Miami road traffic);

  • No pedestrian or person shall stand on or in proximity to a street or highway for the purpose of soliciting the watching or guarding of any vehicle while parked or about to be parked on a street or highway;

  • The driver of a vehicle at an intersection that has a traffic control signal in place shall stop before entering the crosswalk and remain stopped to allow a pedestrian, with a permitted signal, to cross a roadway when the pedestrian is in the crosswalk or steps into the crosswalk and is upon the half of the roadway upon which the vehicle is traveling or when the pedestrian is approaching so closely from the opposite half of the roadway as to be in danger;

  • The driver of a vehicle at any crosswalk where signage so indicates shall stop and remain stopped to allow a pedestrian to cross a roadway when the pedestrian is in the crosswalk or steps into the crosswalk and is upon the half of the roadway upon which the vehicle is traveling or when the pedestrian is approaching so closely from the opposite half of the roadway as to be in danger;

  • If a traffic control signal is not in place or in operation and there is no signage indicating otherwise, the driver of a vehicle shall yield the right-of-way, slowing down or stopping if need be to so yield, to a pedestrian crossing the roadway within a crosswalk when the pedestrian is upon the half of the roadway upon which the vehicle is traveling or when the pedestrian is approaching so closely from the opposite half of the roadway as to be in danger. Any pedestrian crossing a roadway at a point where a pedestrian tunnel or overhead pedestrian crossing has been provided shall yield the right-of-way to all vehicles upon the roadway;

  • No pedestrian shall suddenly leave a curb or other place of safety and walk or run into the path of a vehicle which is so close that it is impossible for the driver to yield;

  • Whenever any vehicle is stopped at a marked crosswalk or at any unmarked crosswalk at an intersection to permit a pedestrian to cross the roadway, the driver of any other vehicle approaching from the rear shall not overtake and pass such stopped vehicle;

  • Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles upon the roadway;

  • Between adjacent intersections at which traffic control signals are in operation, pedestrians shall not cross at any place except in a marked crosswalk;

  • No pedestrian shall, except in a marked crosswalk, cross a roadway at any other place than by a route at right angles to the curb or by the shortest route to the opposite curb;

  • Pedestrians shall move, whenever practicable, upon the right half of crosswalks;

  • No pedestrian shall cross a roadway intersection diagonally unless authorized by official traffic control devices, and, when authorized to cross diagonally, pedestrians shall cross only in accordance with the official traffic control devices pertaining to such crossing movements;

  • No pedestrian shall enter or remain upon any bridge or approach thereto beyond the bridge signal, gate, or barrier after a bridge operation signal indication has been given. No pedestrian shall pass through, around, over, or under any crossing gate or barrier at a railroad grade crossing or bridge while such gate or barrier is closed or is being opened or closed;

  • No pedestrian may jump or dive from a publicly owned bridge; and

  • No pedestrian shall walk upon a limited access facility or a ramp connecting a limited access facility to any other street or highway; however, this subsection does not apply to maintenance personnel of any governmental subdivision.

If I am blind, do cars and other vehicles have to completely stop when I am crossing the street as a Florida pedestrian?

Yes.  According to Florida Statute 316.1301, when blind persons are crossing the street or highway by way of a guide dog or walking cane/stick, the driver of every vehicle approaching the intersection or place where the pedestrian is attempting to cross shall bring his or her vehicle to a full stop before arriving at such intersection or place of crossing and, before proceeding, shall take such precautions as may be necessary to avoid injuring such pedestrian.

Do bicycle riders have to yield the right of way to Florida pedestrians while riding a bike on a sidewalk?

Yes.  According to Florida Statute 316.2065(10), a person propelling a bicycle upon and along a sidewalk, or across a roadway upon and along a crosswalk, shall yield the right-of-way to any pedestrian and shall give an audible signal before overtaking and passing such pedestrian.  For an extensive discussion on Miami Florida Bicycle Accident Law and common questions usually asked regarding Miami Florida bicycle accident injuries, see my previous post.

Do segway or other electric personal assistive mobility riders have to yield the right of way to Florida pedestrians while riding on a sidewalk?

Yes.  According to Florida Statute 316.2068, a person may operate such an electric mobility device such as a segway, on a sidewalk, provided that the person operating the device yields the right-of-way to pedestrians and gives an audible signal before overtaking and passing a pedestrian.

Do mopeds operated under human power have to yield the right of way to Florida pedestrians while riding on a sidewalk?

Yes.  According to Florida Statute 316.208, a person propelling a moped solely by human power upon and along a sidewalk, or across a roadway upon and along a crosswalk, has all the rights and duties applicable to a pedestrian under the same circumstances, except that such person shall yield the right-of-way to any pedestrian and shall give an audible signal before overtaking and passing a pedestrian.

Do golf carts have to yield the right of way to Florida pedestrians while riding on a sidewalk?

Yes.  According to Florida Statute 316.2126, golf carts and utility vehicles may operate on sidewalks adjacent to state highways only if such golf carts and utility vehicles yield to pedestrians and if the sidewalks are at least 5 feet wide.

If I am a pedestrian and am hit by a car or truck in Florida, can I secure pain and suffering damages for my Florida pedestrian car accident by way of a lawsuit?

Possibly. According to Florida Statute 627.737(2), if you are hit by a car or truck or any other vehicle with four or more wheels (excluding taxicabs, buses and limousines), a pedestrian plaintiff involved in a Florida pedestrian automobile accident may recover damages in tort for pain, suffering, mental anguish, and inconvenience because of bodily injury, sickness, or disease provided such injury or disease consists in whole or in part of: (a) Significant and permanent loss of an important bodily function; (b) Permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement; (c) Significant and permanent scarring or disfigurement; and/or (d) Death.

Of note, if you are a pedestrian that is hit by a motorcycle, bicycle, moped, scooter, tri-vehicle, segway or another type of motor vehicle with less than four wheels, or a taxicab, bus or limousine, you are not required to prove permanency or the other injuries above, in a Florida pedestrian accident, in order to recover past or future pain and suffering damages within a Florida lawsuit or claim.

Can I recover damages as a pedestrian even if the motor vehicle never hit me or my child?

Yes.  Even if a motor vehicle does not hit you, if you are forced to evade an accident and are injured in the process, the driver and/or owner of the motor vehicle can possibly still be held responsible for causing your injuries.

How do I pay my medical bills and get treatment following a Florida pedestrian accident if I do not have health insurance?

If you are hit by a car or truck and have your own car insurance, then you can secure Florida personal injury protection (PIP) benefits to cover your medical bills and lost wages, up to a maximum of $10,000.  If you do not own a motor vehicle and you do not live with a relative that has PIP insurance, and you are involved in a motor vehicle pedestrian accident because you were hit by a car or truck, then you may be eligible for PIP benefits from the owner or driver of the motor vehicle that hit you and caused your Florida pedestrian accident injuries, provided you are a Florida resident (if you are from another country or are on vacation and are a permanent resident of another state, you can not secure PIP benefits from the driver or owner of the vehicle that hit you).  If you are involved in a Florida pedestrian accident because a bicycle, motorcycle, scooter or moped hit you, then your own car insurance will not provide you Florida PIP benefits to cover your medical bills or lost wages, nor will the person’s insurance carrier that hit you. For more on Florida’s new personal injury protection (PIP) law and Florida personal injury protection benefits, see my previous article.

How do I pay my medical bills and get treatment following a Florida pedestrian accident if I was hit by a car, truck, motorcycle or other motor vehicle that had no automobile insurance coverage (uninsured motorist), did not have enough insurance coverage (underinsured driver) or leaves the scene of the accident (ie., a Miami Florida hit and run pedestrian accident)?

If you own a motor vehicle and you have Florida uninsured motorist coverage (UM) and/or Florida underinsured motorist coverage (UIM), you may be able to make a claim against your own car insurer to cover your medical bills, lost wages, pain and suffering, etc. For an extensive discussion on Florida Uninsured and/or Underinsured Motorist Automobile Insurance Coverage, see my previous article.

If I am injured in a Florida pedestrian car accident, and I bring a lawsuit against the vehicle that hit me, can I secure punitive damages?

Possibly. In order to recover punitive damages, you would generally need to show that the driver that hit you was willful, wanton and reckless in their driving, such as when one  drives drunk, is driving under the influence of drugs or alcohol or prescription medication (DUI), or while driving while intoxicated (DWI).

How long do I have to file a Florida pedestrian accident case if I sustained serious injuries?

In general, four years.  The Florida statute of limitations for lawsuits filed as a result of injuries sustained in a Florida pedestrian accident (ie., general negligence), is four years.

What happens if I am involved in a Florida pedestrian accident when working on the job or in the course and scope of employment?

If you are riding a bicycle as part of your job (such as delivering newspapers) or simply walking on the street or sidewalks as part of your sales job, or perhaps you are a flag person on a construction site, if you are hit by a car, taxi, truck or other motor vehicle, you would likely be entitled to Florida workers compensation benefits.  In this type of Florida work accident, not only could you be entitled to have your lost wages and medical bills paid as workers compensation benefits, but you may also still bring a claim or lawsuit against the car owner or driver that hit you. For an extensive discussion on Florida workers compensation law and Florida work accidents where one is injured on the job, see my previous article.

Moral of the Story: if you are injured or a fatality (ie., wrongful death) occurs due to a Miami Florida pedestrian accident, whether you are a pedestrian that was hit by a car or a construction site worker that is struck by a vehicle while working on a street or highway, if it happens in Orlando, Lakeland, Tampa, Fort Myers, Naples, Jacksonville, Palm Coast, Sarasota, Pensacola, Hollywood, Palm Beach Gardens, Panama City, Ocala, Miami Gardens, Aventura, Miami Beach, Hialeah, West Kendall, Homestead, the Florida Keys, Weston, Florida City, Cutler Bay, Sunny Isles, Miami Lakes, West Palm Beach, Key West or another area within Miami, Fort Lauderdale or Palm Beach, or anywhere in Miami-Dade, Broward, Palm Beach or Monroe Counties, know that pedestrians may have options available under Florida pedestrian accident law that may require the retention of a Fort Lauderdale, Florida pedestrian accident lawyer or a Miami Beach pedestrian injury lawyer, given the many complexities involved when injured due to a pedestrian car accident, and the unknown of whether a Florida pedestrian injury insurance claim is possible given Florida’s four year statute of limitations (SOL) for Florida pedestrian accident claims.

 

Florida Medical Malpractice Law: Common and Frequently Asked Questions Regarding Lawsuits For Injury or Wrongful Death Due to Doctor, Hospital or Nurse Medical Negligence

Florida Medical Malpractice Law _Statute of Limitations_fightsforyou.netIn the many hospitals in the State of Florida, as well as in the multitude of urgent care and personal injury clinics popping up, medical malpractice can happen in South Florida and all over the country. Medical malpractice involves negligence litigation where a hospital, doctor, nurse practitioner, dentist, psychiatrist, anesthesiologist or other medical provider violates the accepted standards of care (which requires expert testimony to prove such medical negligence at trial) and acts in a negligent manner, and which then leads to catastrophic injuries or even death.

Some of the most common injuries and causes of medical malpractice in the State of Florida can include the following:

  • Failing to properly deliver a baby or newborn resulting in birth-related injuries (including birth-related neurological injuries, cerebral palsy, shoulder dystocia, brachial plexus injuries, forceps or vacuum injuries, cystic fibrosis, cephalohematoma, subconjunctival hemorrhage, developmental delay, newborn persistent pulmonary hypertension, spinal cord injuries, jaundice, seizures, erb’s palsy, hypoxia (brain damage), nerve injury damage, paralysis, stillbirth, fetal distress, C-section issues, injuries to the mother (such as preeclampsia, and eclampsia in the mother) and other birth injuries;
  • Failure to listen to the patient and recognize symptoms;
  • Failure to examine a patient’s medical history;
  • Failure to interpret tests in a proper manner;
  • Ordering a wrong test for a patient;
  • Failing to monitor a patient after surgery or failing to provide the appropriate post surgical care (which can result in infections from catheters or infections at the surgical wound, sepsis, internal bleeding, necrosis of tissue, blood clots, deep vein thrombosis’, air embolisms and pulmonary embolisms);
  • Pharmacy and medication errors (involving the wrong dosage, wrong medication, label errors and insufficient medical history);
  • Surgical errors (such as leaving a surgical instrument in you, operating on the wrong body part, limb or patient, and post-surgical infections);
  • Leaving foreign objects or bodies in you after surgery (such as a sponge, clamp, plastic glove, surgical needle, forceps, tubing, medical device, etc.);
  • Improper care after a surgical procedure;
  • Lab test errors regarding tissue, blood or urine samples;
  • Failure of nurses, doctors, surgeons, interns or support staff to maintain hygiene and wash their hands;
  • Errors by a nurse practitioner;
  • Errors by a physicians assistant;
  • Errors by a midwife;
  • Errors by a medical doctor (M.D.), doctor of osteopath (D.O.), orthopedic, radiologist, gynecologist, obstetrician, cosmetic surgeon, plastic surgeon, neurologist, neurosurgeon, podiatrist, cardiologist, urologist, psychiatrist, etc.;
  • Errors in administering anesthesia during a surgical procedure;
  • Failing to diagnose, delayed diagnosis or misdiagnosis of a medical condition;
  • Failing to diagnose, delayed diagnosis or misdiagnosis of cancer (such as pancreatic cancer, breast cancer, cervical cancer, colon cancer, lung cancer, liver cancer, bone cancer, gall bladder cancer, gastrointestinal cancer, brain cancer, ovarian cancer, uterine cancer, bladder cancer, kidney cancer, lymphoma, mesothelioma, myeloma, thyroid cancer, prostate cancer, skin cancer (melanoma, basal cell or squamous cell), brain tumors, stomach cancer, testicular cancer and vaginal cancer);
  • Failing to diagnose, delayed diagnosis or misdiagnosis of stroke or heart attack symptoms;
  • Failing to diagnose, delayed diagnosis or misdiagnosis of diseases, viruses, blood disorders (leukemia) and blood infections;
  • Failing to diagnose, delayed diagnosis or misdiagnosis of blood clots, circulation problems and aneurysms;
  • Failing to diagnose, delayed diagnosis or misdiagnosis of bacterial  infections or viral infections;
  • Failing to fully evaluate, treat or monitor a patient;
  • Failing to properly sanitize medical and surgical instruments;
  • Errors involved in blood transfusions;
  • Errors regarding nerve blocks;
  • Errors involved in treating kidney problems (including dialysis errors);
  • Medical device issues involving the design, maintenance or manufacturing, ie., a product defect (can include heart devices, heart monitors, pacemakers, defibrillators, stents, drug-coated stents, drug-eluting stents, artificial valves, cardiac devices, radiological devices, artificial joints, Mirena IUD issues, bone implants (Medtronic Infuse Bone Graft) hip implants (metal on metal hip replacements, DePuy ASR hip implant, Stryker Rejuvenate and ABG II modular-neck stem implants or Zimmer Durom Cup hip replacement implant), jaw implants, breast implants, cosmetic implants, pain pumps, knee replacements (Zimmer NexGen knee implant), respiratory devices, Avaira contact lenses, surgical mesh, transvaginal mesh, Artelon CMC Spacer devices, Bard IVC filters, and hardware implantation for broken bone surgeries or spinal surgeries);
  • Dangerous and defective pharmaceutical drugs, ie., a product defect (can include such drugs as GranuFlo (NaturaLyte), Serzone, diethylstilbestrol (DES)/stilboestrol, Digitek, Tequin, Levaquin, Paxil, Trasylol, Claravis (Chantix), Vioxx, Actos, Ortha Evra, Baycol, Pradaxa, Fosomax, Allopurinol (Zyloprim), Topamax (Topiramate), Fen-Phen, Lexapro (escitalopram), phenylpropanolamine, Yasmin (Yaz or Ocella), Zoloft (sertraline), ;
  • Emergency room (ER) and hospital errors (due to the under-staffing, over-working and communication issues between medical personnel; vague discharge instructions; delayed treatment that causes fatalities or failure to follow up with the patient);
  • Errors involved in gastric bypass surgeries;
  • Errors involved in Lasik eye surgery;
  • Errors involved in dental surgery;
  • Lack of informed consent; and
  • Nursing home errors, neglect and abuse.

What is the Florida Statute of Limitations (ie., how much time a patient has to file a lawsuit) applicable under Florida medical malpractice law?

In general, Florida medical malpractice law states that a patient has two years to file a lawsuit due to a doctor’s or hospital’s negligence. According to Florida Statute 95.11(4)b), if someone sustains an injury or is killed due to the negligence of a Florida medical practitioner (ie., medical negligence), under Florida medical malpractice law, a Miami Florida medical malpractice attorney has two years from the time the incident giving rise to the action occurred or within 2 years from the time the incident is discovered, or should have been discovered with the exercise of due diligence; however, in no event shall the action be commenced later than 4 years from the date of the incident or occurrence out of which the cause of action accrued, except that this 4-year period shall not bar an action brought on behalf of a minor on or before the child’s eighth birthday.

Under Florida medical malpractice law, an “action for medical malpractice” is defined as a claim in tort or in contract for damages because of the death, injury, or monetary loss to any person arising out of any medical, dental, or surgical diagnosis, treatment, or care by any provider of health care. In those actions covered by this paragraph in which it can be shown that fraud, concealment, or intentional misrepresentation of fact prevented the discovery of the injury the period of limitations is extended forward 2 years from the time that the injury is discovered or should have been discovered with the exercise of due diligence, but in no event to exceed 7 years from the date the incident giving rise to the injury occurred, except that this 7-year period shall not bar an action brought on behalf of a minor on or before the child’s eighth birthday.

What damages can be secured if a patient is injured due to the medical negligence or medical malpractice of a Florida doctor, hospital, nurse or other medical practitioner?

Should a patient be injured as a result of medical malpractice and they hire a Hialeah Florida medical malpractice attorney, and a lawsuit is filed, the types of damages that can be secured can include:

  • pain and suffering (both past and future, such as for a future surgery);
  • disability;
  • disfigurement (such as scars and/or loss of a leg or other limb);
  • mental anguish (could include psychological damages);
  • loss of capacity for the enjoyment of life (one may not be able to do the same things you used to);
  • hospital, nurse or other medical expenses, both past and future (medical bills, insurance liens, EMS/ambulance bills, etc.);
  • loss of earnings or wages (if you miss work due to the injury or going to a doctors appointment; loss of sick or vacation time);
  • loss of ability to earn money in the future (whether you can no longer work, or cannot perform the same job you used to);
  • aggravation of a previously existing condition (if you had back or neck pain that is made worse);
  • Punitive damages (although the threshold to prove this type of damage is quite high, they can be awarded if the case is made that a doctor knowingly behaved in a harmful way that caused malpractice or negligence);
  • Wrongful death damages (assuming a death is caused by the medical malpractice or doctor negligence).

What is the definition of a healthcare provider covered under Florida’s Medical Malpractice Act?

According to Florida Statute 766.202(4), a healthcare provider means any hospital, ambulatory surgical center, or mobile surgical facility as defined and licensed under chapter 395; a birth center licensed under chapter 383; any person licensed under chapter 458 (medical doctor’s — ie., M.D.’s), chapter 459 (doctor of osteopath — D.O.’s), chapter 460 (chiropractor — D.C.), chapter 461, (podiatrist — ie., a foot doctor)  chapter 462 (naturopathic treaters such as dietetics, psychotherapist, hydrotherapist, etc.), chapter 463 (eye doctors – ie., optomestrist’s), part I of chapter 464 (nurses), chapter 466 (dentists), chapter 467 (midwifes), part XIV of chapter 468 (orthotics and/or prosthetics), or chapter 486 (physical therapists); a clinical lab licensed under chapter 483; a health maintenance organization certificated under part I of chapter 641; a blood bank; a plasma center; an industrial clinic; a renal dialysis facility; or a professional association partnership, corporation, joint venture, or other association for professional activity by health care providers.

What is the standard of care I would have to prove in a Miami Florida medical malpractice lawsuit or a Florida medical negligence lawsuit for injury or wrongful death caused by a doctor, physician or other medical provider’s medical negligence?

According to Florida Statute 766.102(1), in any action for recovery of damages based on the death or personal injury of any person in which it is alleged that such death or injury resulted from the negligence of a health care provider as defined in s. 766.202(4), the claimant shall have the burden of proving by the greater weight of evidence that the alleged actions of the health care provider represented a breach of the prevailing professional standard of care for that health care provider. The prevailing professional standard of care for a given health care provider shall be that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.

(2)(a) If the injury is claimed to have resulted from the negligent affirmative medical intervention of the health care provider, the claimant must, in order to prove a breach of the prevailing professional standard of care, show that the injury was not within the necessary or reasonably foreseeable results of the surgical, medicinal, or diagnostic procedure constituting the medical intervention, if the intervention from which the injury is alleged to have resulted was carried out in accordance with the prevailing professional standard of care by a reasonably prudent similar health care provider.

(b) The provisions of this subsection shall apply only when the medical intervention was undertaken with the informed consent of the patient in compliance with the provisions of s. 766.103.

(3)(a) As used in this subsection, the term:

1. “Insurer” means any public or private insurer, including the Centers for Medicare and Medicaid Services.

2. “Reimbursement determination” means an insurer’s determination of the amount that the insurer will reimburse a health care provider for health care services.

3. “Reimbursement policies” means an insurer’s policies and procedures governing its decisions regarding health insurance coverage and method of payment and the data upon which such policies and procedures are based, including, but not limited to, data from national research groups and other patient safety data as defined in s. 766.1016.

(b) The existence of a medical injury does not create any inference or presumption of negligence against a health care provider, and the claimant must maintain the burden of proving that an injury was proximately caused by a breach of the prevailing professional standard of care by the health care provider. Any records, policies, or testimony of an insurer’s reimbursement policies or reimbursement determination regarding the care provided to the plaintiff is not admissible as evidence in any medical negligence action. However, 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.

(4) The Legislature is cognizant of the changing trends and techniques for the delivery of health care in this state and the discretion that is inherent in the diagnosis, care, and treatment of patients by different health care providers. The failure of a health care provider to order, perform, or administer supplemental diagnostic tests shall not be actionable if the health care provider acted in good faith and with due regard for the prevailing professional standard of care.

What is the standard of care I would have to prove in a Miami Florida medical malpractice lawsuit or a Florida medical negligence lawsuit for injury or wrongful death caused by an emergency room doctor, physician, nurse or other emergency room medical provider’s medical negligence, when responding to a sudden medical emergency?

According to Florida Statute 768.13 (Florida’s Good Samaritan law), an emergency room doctor or other personnel must act with a reckless disregard (could be willful or wanton conduct) to the consequences of their medical diagnosis and treatment.  Under Florida Statute 768.13(2)(a) and 2(b), any person, including those licensed to practice medicine, who gratuitously and in good faith renders emergency care or treatment either in direct response to emergency situations related to and arising out of a public health emergency declared pursuant to s. 381.00315, a state of emergency which has been declared pursuant to s. 252.36 or at the scene of an emergency outside of a hospital, doctor’s office, or other place having proper medical equipment, without objection of the injured victim or victims thereof, shall not be held liable for any civil damages as a result of such care or treatment or as a result of any act or failure to act in providing or arranging further medical treatment where the person acts as an ordinary reasonably prudent person would have acted under the same or similar circumstances.

Florida Statute 768.13(2)(b)(1) Any health care provider, including a hospital licensed under chapter 395, providing emergency services pursuant to obligations imposed by 42 U.S.C. s. 1395dd, s. 395.1041, s. 395.401, or s. 401.45 shall not be held liable for any civil damages as a result of such medical care or treatment unless such damages result from providing, or failing to provide, medical care or treatment under circumstances demonstrating a reckless disregard for the consequences so as to affect the life or health of another.

Florida Statute 768.13(2)(b)(3) For purposes of this paragraph, “reckless disregard” as it applies to a given health care provider rendering emergency medical services shall be such conduct that a health care provider knew or should have known, at the time such services were rendered, created an unreasonable risk of injury so as to affect the life or health of another, and such risk was substantially greater than that which is necessary to make the conduct negligent.

Florida Statute 768.13(2)(c)(1) Any health care practitioner as defined in s. 456.001(4) who is in a hospital attending to a patient of his or her practice or for business or personal reasons unrelated to direct patient care, and who voluntarily responds to provide care or treatment to a patient with whom at that time the practitioner does not have a then-existing health care patient-practitioner relationship, and when such care or treatment is necessitated by a sudden or unexpected situation or by an occurrence that demands immediate medical attention, shall not be held liable for any civil damages as a result of any act or omission relative to that care or treatment, unless that care or treatment is proven to amount to conduct that is willful and wanton and would likely result in injury so as to affect the life or health of another.

What is the definition of medical malpractice or medical negligence under Florida’s Medical Malpractice Act, Chapter 766 of the Florida Statutes?

According to Florida Statute 766.106(1)(a), a “Claim for medical negligence” or “claim for medical malpractice” means a claim arising out of the rendering of or the failure to render medical care or services.

Can I sue a hospital for the medical negligence of its employee’s or agents?

Yes.  Florida Court’s have opined that that the legislature, in enacting section 766.102, and the Medical Malpractice Reform Act in general, intended that the negligence of a hospital’s agents acting in the course of their employment should be treated as the negligence of the hospital, to which the hospital can be held vicariously liable.

What is informed consent and what is required of doctors and physicians under Florida law?

Florida Courts have noted that a physician has an obligation to advise his or her patient of the material risks of undergoing a medical procedure, and that unless a person knows the risks and dangers of such a procedure, “consent” does not represent a choice and is ineffectual under Florida law.

In fact, the Florida legislature has codified the doctrine of medical informed consent in general under Florida Statute 766.103, which states the following (this does not apply in a “Good Samaritan” situation for emergency medical care):

(3) No recovery shall be allowed in any court in this state against any physician licensed under chapter 458, osteopathic physician licensed under chapter 459, chiropractic physician licensed under chapter 460, podiatric physician licensed under chapter 461, dentist licensed under chapter 466, advanced registered nurse practitioner certified under s. 464.012, or physician assistant licensed under s. 458.347 or s. 459.022 in an action brought for treating, examining, or operating on a patient without his or her informed consent when:

(a) 1. The action of the physician, osteopathic physician, chiropractic physician, podiatric physician, dentist, advanced registered nurse practitioner, or physician assistant in obtaining the consent of the patient or another person authorized to give consent for the patient was in accordance with an accepted standard of medical practice among members of the medical profession with similar training and experience in the same or similar medical community as that of the person treating, examining, or operating on the patient for whom the consent is obtained; and

2. A reasonable individual, from the information provided by the physician, osteopathic physician, chiropractic physician, podiatric physician, dentist, advanced registered nurse practitioner, or physician assistant, under the circumstances, would have a general understanding of the procedure, the medically acceptable alternative procedures or treatments, and the substantial risks and hazards inherent in the proposed treatment or procedures, which are recognized among other physicians, osteopathic physicians, chiropractic physicians, podiatric physicians, or dentists in the same or similar community who perform similar treatments or procedures; or

(b) The patient would reasonably, under all the surrounding circumstances, have undergone such treatment or procedure had he or she been advised by the physician, osteopathic physician, chiropractic physician, podiatric physician, dentist, advanced registered nurse practitioner, or physician assistant in accordance with the provisions of paragraph (a).

(4)(a) A consent which is evidenced in writing and meets the requirements of subsection (3) shall, if validly signed by the patient or another authorized person, raise a rebuttable presumption of a valid consent.

(b) A valid signature is one which is given by a person who under all the surrounding circumstances is mentally and physically competent to give consent.

Do all Florida doctors and physicians have Florida medical malpractice insurance?

In general, no. According to Florida Statute 458.320, while doctors are required to have policies of insurance of $100,000 per claim or $300,000 in the aggregate (this requirement is $250,000 with an aggregate of $750,000, for a doctor or physician with staff privileges), just to practice medicine in this State, they can meet this requirement by proving they have other assets (such as letters of credit), or they can simply be able to respond to a judgment in the baseline amounts.  Doctors who avoid the Florida medical malpractice insurance requirement are also required to post a notice in their office in the form of a sign prominently displayed in the reception area and clearly noticeable by all patients or to provide a written statement to any person to whom medical services are being provided. Such sign or statement shall state: “Under Florida law, physicians are generally required to carry medical malpractice insurance or otherwise demonstrate financial responsibility to cover potential claims for medical malpractice. YOUR DOCTOR HAS DECIDED NOT TO CARRY MEDICAL MALPRACTICE INSURANCE. This is permitted under Florida law subject to certain conditions. Florida law imposes penalties against noninsured physicians who fail to satisfy adverse judgments arising from claims of medical malpractice. This notice is provided pursuant to Florida law.”

Moral of the Story: if you are injured or a wrongful death occurs due to medical malpractice, doctor medical negligence, nurse medical negligence, hospital medical negligence or other medical and healthcare professional type neglect, whether the Florida medical malpractice or Florida medical negligence happens in Deltona, Daytona, Fort Pierce, Brandon, Orlando, Lakeland, Tampa, Fort Myers, Naples, Jacksonville, Palm Coast, New Port Richey, Sarasota, Pensacola, Hollywood, Port Charlotte, Palm Beach Gardens, Panama City, Ocala, Cape Coral, Miami Gardens, Saint Augustine, Aventura, Miami Beach, Hialeah, Winter Park, Altamonte Springs, Port Orange, West Kendall, Homestead, the Florida Keys, Titusville, or another area within Miami, Fort Lauderdale or Palm Beach, or anywhere in Miami-Dade, Broward, Palm Beach or Monroe Counties, know that patients who are seriously and catastrophically injured in Florida medical malpractice and medical negligence accidents may have options available under Florida law that may require the retention of a Miami Florida medical malpractice lawyer, a Fort Lauderdale Florida medical malpractice birth-related injury attorney, a Palm Beach Florida failure to diagnose cancer lawyer, or a Miami Beach misdiagnosis medical negligence attorney, given the many complexities involved when injured due to medical malpractice and a doctors neglect, and the unknown of whether a Florida medical malpractice insurance claim is possible given Florida’s two year statute of limitations (SOL) for Florida medical malpractice claims.

Florida Bicycle Accident Law: What Florida Law Applies if Injured in a Bike or Pedestrian Accident?

Florida Bicycle Accident Law_fightsforyou.net

Dramatization/Actor – Not An Actual Event

Given that us Floridians and all of the out of state vacationers and non-residents take advantage of the wonderful weather down here in South Florida, we are always participating in activities such as water sports, boating, wave riding, ATV riding, skate boarding, in-line skating, rollerblading and bicycling. However fun these activities may be, they can involve substantial risks, most notably, bicycling on our public roads (given the few bike paths we have) wherein Florida bike riders have sustained catastrophic injuries, head injuries, neck injuries, leg injuries, knee injuries, ankle injuries, elbow injuries, brain injuries, spinal cord injuries, road rash, broken arms, fractured bones and sometimes even death.  Some of the most common causes of South Florida bicycle accidents include the following:

  • Being in a motor vehicle accident and getting hit by a car, truck, taxi, limo, van, bus or motorcycle;
  • Road defects (such as cracks, sand, gravel, road resurfacing, potholes, street grooves, uneven sidewalks, standing or pools of water, manhole imperfections and raised surfaces);
  • Debris in the roadways;
  • View obstructions (such as trees, bushes, parked cars and utility poles);
  • Running over railroad tracks;
  • A defective bicycle part or component (such as the tires, wheels, pedals, rims, brakes, chain, frame, handle bars or seat); and
  • Riding a bicycle under the influence of drugs or alcohol (ie. drunk).

When Miami Florida bicyclists or vacationers are involved in bicycle accidents (especially in resort and vacation areas such as South Beach, Miami Beach, Clearwater, Fort Lauderdale Beach, and Key West), some of the most common and frequently asked questions of a Miami Florida bicycle accident attorney or Florida Keys bicycle injury attorney include the following:

If I am in a Miami Florida bicycle accident and am hit by a car or truck because they were not paying attention or they failed to yield the right of way, what insurance can be applicable?

If you are struck by a car or truck, you MAY be entitled to personal injury protection benefits (PIP) from the driver or owner of the vehicle that hit you.  If you owned a vehicle at the time of the accident, then you would be able to claim your Florida personal injury protection benefits under your own car insurance policy. For more on Florida’s new personal injury protection (PIP) law, see my previous article.

You may also be entitled to additional insurance coverage if you had Florida uninsured motorist coverage or Florida underinsured motorist coverage, ie., Florida UM or UIM benefits, should the car or truck that hit you not have any insurance or they simply did not have enough to cover the medical bills and bicycle accident injuries sustained (ie., your pain and suffering).  You could also bring a liability lawsuit against the truck or car driver/owner should they have been negligent in causing or contributing to your bicycle accident.

If a car, truck, bus, motorcycle or limo does not strike my bicycle but causes me to swerve and I am injured in a Homestead Florida bicycle accident, can I still recover from the driver or owner of the motor vehicle?

Possibly.  In a bicycle accident of this sort, you can still pursue a liability lawsuit against the driver or owner of the vehicle who caused you to crash and sustain injuries, even if they did not make contact with your bicycle.  In fact, if the driver of the vehicle leaves the scene and this becomes a “hit and run” or “phantom vehicle” accident, you may still be able to pursue a claim against your own car insurer if you had Florida uninsured or underinsured motorist coverage. For an extensive discussion on Florida Uninsured and/or Underinsured Motorist Insurance Coverage, see my previous article.

What is the time limit (ie., the statute of limitations) for filing a Florida bicycle accident lawsuit arising out of the negligence of another bicyclist or a motor vehicle ?

Under Florida Statute 95.11(3)(a), the statute of limitations for negligence actions in the state of Florida is four years.

What is the time limit (ie., the statute of limitations) for filing a Florida bicycle accident lawsuit arising out of a defective bicycle part (ie., product liability)?

Under Florida Statute 95.11, the statute of limitations for product defect actions in the state of Florida is four years.

What is the definition of a bicycle under Florida law, in relation to Florida’s traffic laws?

According to Florida Statute 316.003(2), a bicycle is defined as every vehicle propelled solely by human power, and every motorized bicycle propelled by a combination of human power and an electric helper motor capable of propelling the vehicle at a speed of not more than 20 miles per hour on level ground upon which any person may ride, having two tandem wheels, and including any device generally recognized as a bicycle though equipped with two front or two rear wheels. The term does not include such a vehicle with a seat height of no more than 25 inches from the ground when the seat is adjusted to its highest position or a scooter or similar device. No person under the age of 16 may operate or ride upon a motorized bicycle.

What is the definition of a bicycle path under Florida law?

According to Florida Statute 316.003(63), a bicycle path is defined as any road, path, or way that is open to bicycle travel, which road, path, or way is physically separated from motorized vehicular traffic by an open space or by a barrier and is located either within the highway right-of-way or within an independent right-of-way.

As a Florida bike rider, do I have to obey the traffic laws as if I was a motor vehicle?

Yes.  According to Florida Statute 316.003, a bicycle is defined as a vehicle for purposes of Florida’s Uniform Traffic Control Law. As such, a cyclist must follow the traffic rules common to all drivers, as well as the rules adopted specially for bicycles.  According to Florida Statute 316.2065(1), a cyclist has all of the rights to the roadway applicable to any driver, except as to the special regulations for bicycles. Thus, a person riding a bicycle must obey all traffic control devices such as stop lights, stop signs, yield signs, railroad crossing signs, etc.

As a Florida bicycle rider, do I have to have a permanent seat attached to my bicycle?

Yes. According to Florida Statute 316.2065(2), a person operating a bicycle may not ride other than upon or astride a permanent and regular seat attached thereto.

How many people may ride on a bicycle under Florida law?

According to Florida Statute 316.2065(3)(a), a bicycle may not be used to carry more persons at one time than the number for which it is designed or equipped, except that an adult rider may carry a child securely attached to his or her person in a backpack or sling. Moreover,  a bicycle rider must carry any passenger who is a child under 4 years of age, or who weighs 40 pounds or less, in a seat or carrier that is designed to carry a child of that age or size and that secures and protects the child from the moving parts of the bicycle.

If I am under 16 years old, do I have to wear a bicycle helmet under Florida law?

Yes.  According to Florida Statute 316.2065(3)(d), a bicycle rider or passenger who is under 16 years of age must wear a bicycle helmet that is properly fitted and is fastened securely upon the passenger’s head by a strap and that meets the federal safety standard for bicycle helmets, final rule, 16 C.F.R. part 1203. A helmet purchased before October 1, 2012, which meets the standards of the American National Standards Institute (ANSI Z 90.4 Bicycle Helmet Standards), the standards of the Snell Memorial Foundation (1984 Standard for Protective Headgear for Use in Bicycling), or any other nationally recognized standards for bicycle helmets adopted by the department may continue to be worn by a bicycle rider or passenger until January 1, 2016. As used in this subsection, the term “passenger” includes a child who is riding in a trailer or semitrailer attached to a bicycle.

Under Florida law, if I am 16 years old or older, do I have to wear a bicycle helmet when operating a bicycle?

No.

Under Florida law, can I ride my bicycle while being pulled by a motor vehicle?

No.  According to Florida Statute 316.2065(4), no person riding upon any bicycle, coaster, roller skates, sled, or toy vehicle may attach the same or himself or herself to any vehicle upon a roadway.

If I am riding my bike on the street or roadway under the speed of traffic, can I still ride my bike on the roadway?

Yes.  According to Florida Statute 316.2065(5)(a), any person operating a bicycle upon a roadway at less than the normal speed of traffic at the time and place and under the conditions then existing shall ride in the lane marked for bicycle use or, if no lane is marked for bicycle use, as close as practicable to the right-hand curb or edge of the roadway except under any of the following situations:

1. When overtaking and passing another bicycle or vehicle proceeding in the same direction.

2. When preparing for a left turn at an intersection or into a private road or driveway.

3. When reasonably necessary to avoid any condition or potential conflict, including, but not limited to, a fixed or moving object, parked or moving vehicle, bicycle, pedestrian, animal, surface hazard, turn lane, or substandard-width lane, which makes it unsafe to continue along the right-hand curb or edge or within a bicycle lane. For the purposes of this subsection, a “substandard-width lane” is a lane that is too narrow for a bicycle and another vehicle to travel safely side by side within the lane.

If I am riding on a one-way street or highway, do I have to ride on the left hand edge of the road?

Yes.  According to Florida Statute 316.2065(5)(b), any person operating a bicycle upon a one-way highway with two or more marked traffic lanes may ride as near the left-hand curb or edge of such roadway as practicable.

Can I ride my bike along side more than one bike rider on a public street or roadway?

In general, no.  According to Florida Statute 316.2065(6), persons riding bicycles upon a roadway may not ride more than two abreast except on paths or parts of roadways set aside for the exclusive use of bicycles. Persons riding two abreast may not impede traffic when traveling at less than the normal speed of traffic at the time and place and under the conditions then existing and shall ride within a single lane.

If I ride my bike at night, do I need front lamps?

Yes. According to Florida Statute 316.2065 (7), every bicycle in use between sunset and sunrise shall be equipped with a lamp on the front exhibiting a white light visible from a distance of at least 500 feet to the front and a lamp and reflector on the rear each exhibiting a red light visible from a distance of 600 feet to the rear. A bicycle or its rider may be equipped with lights or reflectors in addition to those required by this section.

If I am riding a bicycle on a sidewalk or crosswalk, do I have the rights and duties of a pedestrian?

Yes.  According to Florida Statute 316.2065(9), a person propelling a vehicle by human power upon and along a sidewalk, or across a roadway upon and along a crosswalk, has all the rights and duties applicable to a pedestrian under the same circumstances.

If I am riding a bicycle on a sidewalk or crosswalk, do I have to yield the right of way to pedestrians?

Yes.  According to Florida Statute 316.2065(10), a person propelling a bicycle upon and along a sidewalk, or across a roadway upon and along a crosswalk, shall yield the right-of-way to any pedestrian and shall give an audible signal before overtaking and passing such pedestrian.

Under Florida law, if I am riding a bicycle on a sidewalk or crosswalk, do I have to watch out for roller skaters and skate boarders?

Yes.  According to Florida Statute 316.2065(11), no person upon roller skates, or riding in or by means of any coaster, toy vehicle, or similar device, may go upon any roadway except while crossing a street on a crosswalk; and, when so crossing, such person shall be granted all rights and shall be subject to all of the duties applicable to pedestrians.

Under Florida law, does my bike have to have brakes?

Yes.  According to Florida Statute 316.2065(13), every bicycle shall be equipped with a brake or brakes which will enable its rider to stop the bicycle within 25 feet from a speed of 10 miles per hour on dry, level, clean pavement.

If I am on vacation and rent a bicycle, if I am under 16 years old, do I need a helmet to rent a bike?

Yes.  According to Florida Statute 316.2065(15)(a), a  person may not knowingly rent or lease any bicycle to be ridden by a child who is under the age of 16 years unless:

1. The child possesses a bicycle helmet; or

2. The lessor provides a bicycle helmet for the child to wear.

If I am required to wear a bicycle helmet under Florida law and do not wear one, am I considered to be comparatively at fault for causing the accident if I file a lawsuit for damages arising out of a Florida bicycle accident?

No.  According to Florida Statute 316.2065(18), the failure of a person to wear a bicycle helmet or the failure of a parent or guardian to prevent a child from riding a bicycle without a bicycle helmet may not be considered evidence of negligence or contributory negligence.

If a car, truck or other motor vehicle attempts to pass me while riding a bicycle, how much distance are they required to have between the car and me?

According to Florida Statute 316.083, the driver of a vehicle overtaking a bicycle or other nonmotorized vehicle must pass the bicycle or other nonmotorized vehicle at a safe distance of not less than 3 feet between the vehicle and the bicycle or other nonmotorized vehicle.

Under Florida law, can I wear a headset or Ipod while riding my bicycle?

No.  According to Florida Statute 316.304, a bicyclist may not wear a headset, headphone, or other listening device other than a hearing aid when riding. Wearing a headset can not only distract you from other vehicles on the road, it also prevents you from hearing other vehicles on the road such as when they honk, brake, etc.

If I am riding a bike and need to make a left turn at an intersection, what does Florida law require me to do?

According to Florida Statute 316.151 (1), a bicyclist intending to make a vehicle left turn is entitled to full use of the lane from which the turn is made. After scanning, signaling, and moving to the center of that lane, the bicyclist must check the signal, then proceed when it is green and safe to do so. However, a bicyclist may proceed through the right-most portion of the intersection and turn as close to the curb or edge as possible at the far side. After complying with any official traffic control device, the bicyclist may proceed in the new direction.

Under Florida law, how do I signal if I intend to make a left or right turn?

According to Florida Statute 316.155 and 316.157, a signal of intention to turn must be given during the last 100 feet traveled by the vehicle before turning. If a bicyclist needs both hands for control, the signal need not be given continuously. A bicyclist may signal intent to turn left or right by extending the left hand and arm upward (left) or by extending the right hand and arm horizontally to the right side of the bicycle (right). If you intend to stop your bicycle or suddenly reduce speed, you can by extending the left hand and arm downward.

Under Florida law, can I ride my bicycle on a highway or limited access facility?

No.  According to Florida Statute 316.091, so person shall operate a bicycle on a limited access facility or an interstate highway. Moreover, no person shall operate a bicycle on the roadway or along the shoulder of a limited access highway, including bridges, unless official signs and a designated, marked bicycle lane are present at the entrance of the section of highway indicating that such use is permitted pursuant to a pilot program of the Department of Transportation.

Moral of the Story: if you are a Florida resident, tourist, vacationer or non-resident and are injured in a bicycle accident, whether the Florida bicycle or pedestrian accident happens in Cutler Bay, Daytona, Fort Pierce, Orlando, Port St. Lucie, Tampa, Fort Myers, Naples, Jacksonville, Sarasota, Bradenton, Hollywood, Port Charlotte, Palm Beach Gardens, Pensacola, Ocala, Cape Coral, Saint Augustine, Aventura, Miami Beach, Hialeah, Gainsville, Palm Coast, Port Orange, West Kendall, Homestead, the Florida Keys, Cutler Ridge, or another area within Miami, Fort Lauderdale or Palm Beach, or anywhere in Miami-Dade, Broward, Palm Beach or Monroe Counties, know that bike riders who are seriously injured in Florida bicycle accidents may have options available under Florida law that may require the retention of a Miami Florida bicycle accident lawyer or a Florida pedestrian accident injury lawyer, given the many complexities involved when injured in a bicycle crash and the unknown of whether a Florida bicycle accident insurance claim is possible.

Chipped Tile Insurance Claims: Are They Excluded Under My Florida Homeowners Insurance Policy?

Florida Chipped Tile Insurance Claims_fightsforyou.netWhether you live in North Florida, Central Florida or South Florida, “chipped tile” or “broken tile” claims are rampant in this state and in such an abundance, its very similar to the way gold mining was in California during the 1800’s. However, these chipped tile insurance claims took a huge hit earlier this year in a Florida Court decision that likely upset many of the property damage restoration contractors, public adjusters and even some Miami, Florida chipped tile insurance claim attorneys, wherein these chipped or broken tile damage claims makeup a good part of their business. In the case of  Ergas v. Universal Property and Cas. Ins. Co., 114 So.3d 286 (Fla. 4th DCA 2013), the Fourth District Court of Appeal (governs Broward and Palm Beach Counties), ruled that a homeowner who dropped a hammer on their tile floor causing chips or damage to same, that this chipped tile or broken tile damage was excluded under their Florida homeowners insurance policy under the “marring exclusion.”

The insured’s homeowners insurer, Universal Property and Casualty, denied their chipped tile damage claim under the “marring exclusion” within their Florida insurance policy, to which the trial court granted summary judgment to Universal (who argued that the chipped tile constituted “marring” and thus was excluded in the insurance policy) and dismissed the insured’s lawsuit for insurance coverage under their policy.  The policy stated the following: Section I: We insure against risk of direct loss to property … We do not insure, however, for loss: … 2. Caused by: … (e) Any of the following: (1) Wear and tear, marring, deterioration…. Of note, Universal argued that “marring” was not ambiguous because it could mean either a sudden act or one that took place over time….and interpreted the word to mean any damage at any time that made the property less than perfect.  The insured argued that the damage caused by dropping the hammer was sudden and thus came within the coverage of the insurance policy.

The Fourth District noted that the Florida insurance policy at issue was an “all risk policy” that covered all fortuitous losses, although it did not cover all conceivable losses.  The Court further went on to hold that  the “chipped tile” damage caused by the hammer dropping constituted marring and thus was excluded from policy coverage, to which they thus affirmed the final summary judgment entered by the trial court.

Moral of the Story: if you are a South Florida homeowner (whether a townhouse, home, condo, duplex, triplex or the like) and happen to damage, break or chip the tile, marble or granite floors in your residence (could be by dropping a hammer, plate or any other type of object), whether you live in Hollywood, Pensacola, Ocala, Cape Coral, Saint Augustine, Aventura, Miami Beach, Hialeah, Gainsville, Palm Coast, Port St Lucie, Port Orange, West Kendall, Homestead, the Florida Keys, Cutler Ridge, Palmetto Bay, Daytona, Orlando, Tampa, Fort Myers, Naples, Jacksonville, Stuart, Jupiter or another area within Miami, Fort Lauderdale or Palm Beach, or anywhere in Miami-Dade, Broward, Palm Beach or Monroe County, know that you if you hire a Miami, Florida chipped tile insurance claim attorney to handle your denied chipped tile insurance claim, according to this new opinion out of the Fourth District Court of Appeal, you may be fighting an uphill battle given this chipped tile or marble damage could be considered excluded under your Florida Homeowners insurance policy under the “marring” exclusion.