Justice in Facing Governmental Immunity

Feb. 28th, 2018   /   , , , , ,

Justice in Facing Governmental Immunity

Sovereign immunity is not a common term
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most people come across. However, everyone should know what this means and how it could apply to them.

Simply put, sovereign immunity means that the state, and their agencies, are protected from negligence lawsuits and injury claims. You might have the feeling that this immunity allows the government to escape from their liability and negligence. That feeling of yours is validated because there have been numerous cases where victims sued the government but only ended up having a lost case or compensation that can barely cover the damages. That is why in dealing with injuries caused by the government, you should hire a lawyer that specializes in this.

Here in Florida, the state has waived absolute sovereign immunity via Florida Statute 768.28. It has been replaced with a system that employs modified sovereign immunity meaning a claim may be brought against the State with certain exceptions and exclusions. Below is a list outlining how sovereign immunity applies in Florida.

First, an award of damages is capped at $200,000.00 regardless of the severity of the claimant’s injuries.

Second, specific information must be provided to the state before a claim is filed and a 6 month waiting period must be adhered to.

Third, an injured party is only permitted to pay their attorneys a 25% fee when pursuing a case against the state. This is much lower than the standard rate charged by a lawyer to litigate a case which is normally 40% of the total recovery. It should be noted this rule is often criticized because the government has no caps on how much they pay their defense lawyers.

Fourth, no lawsuits for injuries may be brought against the state that involves planning level, judgmental or police power functions. For example, claims can’t be brought against the State for failing to build a sidewalk near a road or not hiring enough police officers. This protection allows the state’s elected officials to allocate resources to whichever area they (and their voters) feel are most appropriate without concern of legal liability.

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However, injured claimants may bring cases against the state for failing to properly perform low level, day-to-day task. For example, if the state chooses to build a sidewalk, that sidewalk must be maintained in a reasonably safe fashion. Maintaining a safe walking surface is not a unique function that requires high-level planning or decision making by elected officials. Also, if a state employee falls asleep while driving and rear-ends another driver, the state will be liable for the damages. Once again, driving a car is not something that requires high-level decision making and is not protected under the modified sovereign immunity statute.

Biased Reports to Ensure Minimum Insurance Claims

A lot of the victims of car accidents do not recover overnight. In fact, a good number of them require a professional, like a physical therapist or a chiropractor. However, continuous visits with them will cost so much if you don’t have an auto insurance.

Florida Auto insurances have $10,000.00 of personal injury protection (PIP) benefits wherein the costs of your recovery from a car accident will be covered by your own insurance company regardless of fault. However, you should not forget that these insurance companies are still businesses. One of the important goals of a business is to make a profit. If insurance companies gave in to every person who needed PIP benefits, then nothing would be left for their business. That is why they often require victims to take an independent medical examination (IME) to ensure that payments will be given for the right treatments and the injuries are related to the accident.

But the iffy thing about these IMEs is that they are administered by doctors who have a financial relationship with the insurance companies. We find that many of these IME doctors are systematically denying benefits and producing reports indicating the patient is 100% healed and not needed any more treatment under their PIP benefits. Fortunately, we do not let the IME doctors run our client’s medical treatments and have ways to combat their findings. We also often attend these examinations with our clients and videotape the examination to use as evidence down the road when fighting over PIP benefits.

In a recent case from our sister state of Massachusetts, a trial court ruled that an injured party has a right to be accompanied by their lawyer to one of these IME exams. It is improper for an insurance company to cut off an injured party’s benefits for refusing to show up to the exam when the reason for the refusal is because the injured party needed to coordinate a time when their lawyer could join them at the exam.

This talks about the state of Massachusetts alone. Remember, different states have different laws and so it is best to familiarize yourself with the laws and policies regarding auto insurance and personal injury protection benefits.

Nail Salon Charged With Causing Infection To One Of Its Clients

These days, getting a mani-pedi is considered one of the small luxuries you can enjoy when you want to pamper yourself. It helps make you feel relaxed and confident about your nails. However, since nail salons are prone to cases of infection, they should have the highest cleanliness and safety standards.

This was not the case for a nail salon in Virginia. Samantha Payne, a nail salon goer at their local salon, experienced mycobacterial infection on her legs attributed to the improper disinfecting of their pedicure tools. The infection on her legs was so terrible that she had to get several surgeries just to cure the lesions and aching boils she experienced.

This prompted her to bring the case to court. Luckily, Payne was able to prove that the nail salon does not properly disinfect their pedicure tools including the basins in which the feet are put. She was also able to show that they do not follow the standards held for salons and that they do not know the proper maintenance needed for their tools.

Thus, the jury allowed Payne to be compensated for all the damages incurred including her medical bills, salary, pain, and suffering. She was also awarded punitive damages so that she could hold the salon accountable for its poor operations and maintenance.

Most salons strive to meet the cleanliness and safety standards set, but there are also some who try to maximize profits by giving little to no importance to cleanliness and maintenance. If this is the case, then you have to be wary about the salons you go to just to avoid infections. Moreover, if you think that the salon you are going to is one of those who does not follow standards, then you can consult an attorney about the necessary actions to take.

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Hiding Under The Cloak Of ‘Medical Malpractice’

The terms ‘medical malpractice’ and negligence are not the same. The former means that a doctor or a medical professional has failed to uphold the highest standards of care and this caused the patient to have pains or experience unnecessary hurt.

Medical malpractice‘ is loosely and carelessly used by both professionals and victims that states have put several phases to go through as to protect their state and private doctors and hospitals. These phases include a shorter statute of limitations. This means that the time you have for filing medical malpractice is shorter than other cases’. But before that, it has to be approved by a panel often composting of a doctor, lawyer, or judge, so it can be made into a suit. You should also have an expert witness that can say that there was indeed a medical malpractice.

Not every mistake made in the hospital can be called as medical malpractice. However, since there are so many phases and the likelihood of you winning a case like this is slim, then some hospitals and clinics categorize them as medical malpractice.

But this did not hold for a case in North Carolina wherein the patient, Marjorie Locklear, fell off the operating table during a surgery. According to her, the surgeon-in-charge was not paying close attention and that she was positioned far away from him. Because of that, she had to move towards the doctor which caused her to fall to the floor while having surgical tools inside her.

The hospital claimed that Locklear did not have substantial evidence to support her statement and the former then categorized it as a medical malpractice case. When the trial judge got rid of the case, the North Carolina Court of Appeals took back the decision and found that there was ordinary negligence in the case. Since it was not a med-mal case, there was no need for a witness for the case to move forward. Moreover, the Court claimed that no medical expertise was needed to prevent someone from falling off the operating table.

Who Should Be Accountable For A Test Drive Accident?

Test drive accidents are not uncommon. The test driver gets into a new car that he barely knows how to drive and usually is not familiar with the different controls in it. They might also be so excited about the new car they are driving that they are barely focused on the road, much less to their driving. So if an accident takes place, who should be accountable? Is it the test driver or is it the salesperson or the dealer themselves?

Answers to this question vary from state to state. This is because some states claim that the salesperson accompanying the test driver should not be held responsible because they will not be able to make proper decisions in driving from the passenger seat. After all, the driver himself will be able to determine how he would deal with a certain scenario on the road. In some states, they believe otherwise. They claim that since the salesperson was there with the test driver, he or she should have guided the driver on the controls and the features of the car. Also, it’s the salesperson’s fault if they allowed the test driver to operate the car knowing that the latter does not fully know how to drive.

On the other hand, there are cases wherein it’s not the dealer nor the salesperson who is responsible. There are cases where the test driver is at fault especially when they are not accompanied by anyone from the car dealer. In most states, this rule is being followed.

If you’ve noticed, decisions and laws on this vary from state to state, so it’s not possible to give an encompassing answer to the question of who’s accountable. However, it would do you well if you familiarize yourself with the laws on test drive accidents in your state or in the place where you will buy your car.

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