Trial Lawyers Fighting to Reduce U.S. National Deficit

As I write this it is Saturday evening, July 30, 2011 and we Americans are watching and listening to our representatives in Washington attempt to come to some resolution on raising the debt ceiling.  This has caused me to reflect on how personal injury and medical malpractice plaintiff trial lawyers are a force for reducing the United States’ national deficit.  Why?

Each year we have all heard that thousands upon thousands of people are injured and killed as a result of medical malpractice.  Many more are injured or killed in car accidents, from dangerous products, dangerous conditions on property and many other incidents involving unsafe circumstances.  Thousands of the victims of this kind of negligence are on government health benefits, whether they be Medicare recipients or sometimes Medicaid patients.  When Medicare and Medicaid patients get injured, guess who pays for all of their medical expenses?  That’s right, you and I, the American taxpayers.  When you combine all of the Medicare and Medicaid patients who fall victim of neglect and require extensive medical treatment you begin to imagine the enormous annual price tag we pay for taxpayer funded medical care that was caused as a result of someone else’s negligence.

As most everyone realizes, liability insurance is absolutely pervasive in our American society.  From automobile insurance, home owner’s insurance, hospital insurance, nursing home insurance, physician insurance and property and casualty insurance.  Should not this private insurance pay for medical expenses incurred as a result of a negligent act?  Of course.  The problem is that insurance companies typically fight their obligation to pay for accident related medical expenses stemming from a liability claim.  Then when the claim is denied or inadequately paid, taxpayers wind up paying for all of that gigantic hospital bill, doctor’s bills, nursing home bills, diagnostic service providers, laboratory bills, etc.  These insurance companies are sticking us taxpayers with gigantic medical bills that should otherwise be paid by them.

This is where the trial lawyer steps in, not only as an advocate for his client to pursue fair compensation for his client’s injuries, but also secondarily as a quasi agent of the state, an advocate for our nation, to recoup the gigantic monies paid by the department of health and human services through our Medicare and Medicaid programs.  When a trial lawyer gets involved in a case on behalf of a Medicare or Medicaid beneficiary, we are required to notify Medicare and Medicaid of our representation.  We then correspond with the government to ensure we are made aware of all the medical expenses the government (us taxpayers) have paid on behalf of the person.  We include these expenses in the claim for damages against the at fault party’s insurance company, who should rightly pay for them.  At the successful conclusion of a case, we send money to Medicare or Medicaid to reimburse the government (us taxpayers) for that money that was paid.  This is a very important aspect to the work we trial lawyers do in fighting an injustice and is one way we help contribute to the health of our national economy by making sure us taxpayers do not pay for enormous medical expenses that should otherwise be paid by private insurance.  If these claims were never filed, if these lawsuits were never filed and prosecuted, and if any jury fails to compensate a Medicare or Medicaid beneficiary injured through negligence, us taxpayers wind up paying for all of these expenses that should be paid by private insurance.  Any effort by Congress to diminish your Constitutional Right to Trial by Jury secured by the 7th Amendment is no less offensive as an effort to restrict your First Amendment Right to Freedom of Speech, Freedom of Religion or any other freedom guaranteed by our Bill of Rights.  Always keep in mind that our judicial system is the ultimate and final protector of your personal rights and liberties and fight any effort to in any way diminish the critical role our judiciary plays in our constitutional system.  Thank you for reading.

James L. O’Leary, II
Civil Trial Lawyer
28089 Vanderbilt Drive, Suite 202
Bonita Springs, FL 34134
(239) 947-8900
http://www.jloesq.com

Protecting Government Employees and People in the Custody of the State of Florida

One of the most troubling things I have encountered in my practice of law are cases when government employees or people (including children) who are in the custody of the State of Florida get injured or killed. This is because the state, and the companies it contracts with to provide governmental services, typically try to avoid responsibility by claiming legal immunity for their negligent actions.

Recently, in Peak vs. Outward Bound, Inc., a young man by the name of Dillon Peak died after becoming ill in the Outward Bound juvenile facility in DeSoto County. The plaintiff in that case had alleged that the program was negligent in caring for Dillon and that his tragic death also occurred as a result of the program not following the contractual rules governing the program required to be followed by the state. The defendant filed a motion to have the case dismissed under an argument that Florida law generally gives immunity to such service providers (under the old theory that you can’t sue the King). This what is known as sovereign, or governmental, immunity. This law is codified in Florida Statute 768.28 which outlines the exceptions to the rule. The trial judge agreed with the defense argument and dismissed the case. The plaintiff’s timely appealed to the Second Distirct Court of Appeals arguing that because they alleged in their complaint that Outward Bound was not acting as an agent of the State of Florida Department of Juvenile Justice at the time of the incident and did not conform to its duties under the contract it should not be allowed to escape liability for negligence under Florida law.

Reading this case was particularly gratifying to me, because the case that the Second District Court of Appeals relied upon as precedent to reverse the trial judge’s order was a case I litigated several years ago involving the tragic death of a governmental employee who was working as a counselor at the Big Cypress Wilderness Institute located in Ochopee in the Big Cypress Wilderness in the Everglades. In that case, the counselor was attacked by two juveniles and brutally murdered. In that case, the trial judge also dismissed our case using the same rationale as the judge in the Outward Bound case. When I appealed the case to the Second District Court of Appeals, I argued that a government facility such as the Big Cypress Wilderness Institute should not be shielded from legal liability under the sovereign immunity law when it fails to follow the rules and regulations set up by the State of Florida Department of Juvenile Justice. The three judges on the Second District panel agreed with my argument and the case citation is Sierra vs. Associated Marine Institutes et al., 850 So.2d 582 (Fla. 2d DCA 2003). In the Outward Bound case, the Second District relied on the Sierra case to allow the case to proceed in litigation.

It is gratifying to me as an attorney to see that what was a very long and drawn out fight with the State of Florida and two very well heeled private corporations making millions of government tax dollars has now served as legal precedent for other victims of negligence at the hands of government facilities who do not abide by specific safety rules and regulations designed to promote the health, safety and welfare of Floridians. Whether you are a government employee or a person in the custody of a government operation, or even just an average citizen who falls victim of negligence by a government operation, you should still have a right to justice in the civil court system. The purpose of my law practice has always been to try to help people, to promote fairness and equality, and work within our sacred justice system and government to advocate for people harmed or injured by an injustice.

James L. O’Leary, II
http://www.jloesq.com
July 15, 2011

Judicial Independence

Dear Fellow Floridian:

As you may have read or heard, the Florida Legislature has proposed legislation over the last few weeks which individually and collectively challenge the independence of the judiciary and the judicial selection process, while the State’s court system is struggling to make ends meet.

As a member of The Florida Bar’s Trial Lawyer’s Section, I stand fundamentally opposed to any legislation which further politicizes judicial selection, splits the Supreme Court, or ties judicial compensation to case dispositions. I also oppose any legislation which weakens the Supreme Court’s rule making authority or the Supreme Court’s inherent power of judicial review.

As a citizen of this State, you have the right to speak up and have your voice heard. I encourage you to write and contact your legislative representatives to oppose these various court reform measures.

If you choose to contact House or Senate members, I have attached a list of the members and their contact information. I have also attached a chart showing the different bills, and how you can access the websites of the legislature to view the current language in each of these bills.

If you do make contact with members of the legislature or their offices, I urge you to refrain from the temptation to criticize the legislature or individual legislators. Our message needs to remain professional, and speak directly to the merits of these proposals and their impact on the court system as a whole.

In closing, I urge you to please join me in opposing unconstitutional, unnecessary and dangerous encroachments on the independence and integrity of Florida’s judiciary. I hope you will let your legislators know that the integrity, independence, and fairness of Florida’s court system should not to be tampered with, and is of the utmost importance to all Floridians.

house contact information
senate contact information
4-1-11 independent judiciary bill report

Motivating Kids to Learn, The Essential Goal

This past week at my Rotary Club meeting we heard from the Superintendent of Lee County Schools about all of the programs that attempt to deal with the enormous challenges facing our public K-12 education system here in southwest Florida.  One thing that struck me, and has been on my mind for so many years, is the idea of how do we motivate kids to want to learn?  We are spending so much money in Lee County busing children from distant areas of the county to schools half way or more across the county.  Tens of millions of dollars go into the busing program in an apparent attempt to equalize and improve the schools state grade.  Our challenging issues in raising our youth however go far beyond busing, and we know that even some kids are going to school hungry.  It is doubtful a child can be truly motivated to learn if they are hungry, which is why my Rotary District 6960 is planning to pack one million meals on May 14, 2011 to give to these kids and their families.

I would like to see less busing, saving the fuel costs, saving the emissions of these massive vehicles, and focusing on letting families have their kids go to the schools in their neighborhoods.  The schools should all receive equal funding, and this will allow the teachers and support personnel to have more money to work with to benefit the children, increase teacher salaries, and improve the overall safety and security of the school.  Local communities take more ownership in their neighborhood school, allowing them to take pride in their unique campus activities.  By improving our education system, motivating children, and developing intelligent and productive young adults, we can fight the core problems of why kids are going to school hungry right now.  This is because I believe a better educated and motivated person is more likely to enjoy a good career and be able to provide for his or her family, thereby eliminating future generations of children going to school hungry.

Even with an improved approach such as this, we continue to face the ultimate question: how can we better motivate our youth to want to learn.  We are living in an age when the Internet is providing such amazing, electric, and exciting avenues of learning.  If only a student has the desire to learn.  Instilling this desire should be one of the, if not the, number 1 priority of our educational system.  This is not to say we already do not have some fantastic educators out there who are already doing this, and thankfully we do, and these critically important people are some of our nation’s most precious human assets.  A personal computer or mobile device can not instill this human desire to learn.  I followed the story recently of a young man in Naples who was arrested for breaking into his school’s computer, changing his grades, and was charged with having photos of child pornography on his computer.  This youth was obviously motivated to learn about computers, a good thing, but got off track and just needs to get his head straightened out.  The judge is following him closely and I trust he will be rehabilitated, but he needs strong encouragement, love and support in making his turn around and moving in the right direction.  I don’t know this young man, but am behind him and the judge 100% in getting him rehabilitated and motivated to get back on track.  Instead of hacking into computers, he can use his love and motivation for computers and the Internet to learn more about HTML 5 or some other aspect of his interest in technology to build a solid career for himself.  Books are still a great way to learn and the public library is the best spot to be for a young person interested in learning.  This motivation to get and stay on track can not come from a computer, instead, these efforts must come from sincere caring, love, and support of a fellow human being who is genuinely interested in the well being of the child.

While we are all working in our various occupations, professions, and vocations, we can help support our local schools, our teachers, administrators, and our students.  The success of our educational system can not merely be gauged by a student’s FCAT, ACT, or SAT scores, or whether a school is an A or an F school.  The health of a classroom can be felt when sitting in with the teacher and students, feeling the energy, or lack thereof, and looking into the students eyes, and teacher’s eyes, to see if there is a feeling of strong caring, love, warmth and excitement of about the idea of education and learning, of growing as a human being to a higher state of understanding of our world and how we must work together to serve humanity.  I urge you, encourage you, and challenge you to get involved somehow in motivating a youth to get excited about learning, to help care for our children, support our school system, and make our community and world a happier, healthier, and safer place to live.  Thank you very much

The Oath & The Truth

Court Reporter: Will you raise your right hand?  Do you solemnly swear or affirm to tell the truth, the whole truth, and nothing but the truth, so help you God?”

Witness: I do.

Why do we have witnesses in depositions or in trial take an oath?  The simple answer seems so obvious, because we want to get the true facts about any given situation involved with a case or other legal proceeding.  However, the public policy behind this rule for witnesses goes to the bedrock foundation of our entire system of justice.  It is very unfortunate that some people would lie under oath.  For an attorney, it is one of the most frustrating things to experience, and frankly, one of the most discouraging things to see happen.  I strongly believe that any witness, whether an eyewitness to an accident, a plaintiff or defendant in a lawsuit, or an expert witness, should always tell the complete truth in accordance with their legal duty.  Fortunately, most of the time, we hope, people do tell the truth.  Witnesses who alter the truth in subtle ways are still committing perjury, because they are not telling the whole truth.  When a witness lies under oath, it not only degrades the integrity of their credibility, it degrades the credibility of the entire case, whether plaintiff or defendant.

It is better to just tell the truth, the whole truth, and nothing but the truth, than to walk around always knowing that you lied under oath.  The facts are the facts.  There is no reason to degrade your credibility, not only just as a witness, but as a person, as a human being, as an American Citizen.  Our nation is strong because we are a democracy, because we believe in freedom, in equality, in fairness, and in truth.  When one person, in one case, tells one lie, or alters the truth even in some way, he or she is degrading the vitality and integrity of our very way of life, of our U.S.  Constitution, and should be ashamed of themselves.

Ultimately, one of the most important reasons we have a jury system is because a fair and impartial jury is the ultimate lie detector.  When a person lies, they will usually be squeamish, somewhat uncertain, defensive, or even hostile in extreme cases.  However, even slick well educated professionals may violate their oath, and a jury is the backstop to detect such injustice.  Nobody is perfect.  We all have our defects, our less desirable character traits, our “skeletons in the closet,” this includes jurors.  Potential jurors also take the oath, and their oath is equally as important, because if a potential juror honestly does not feel that, given the facts of the case, they could be fair and impartial, they should say so.  There may be a different case starting in a different courtroom where they could be fair and impartial, just not in the particular case before them.

I feel it is better to be honest, even if it means admitting to a mistake, than to violate your oath and lie.  If every single witness and juror in America took this approach, our justice system, and our entire nation, would be stronger for it.  A final note, many times people may be a bystander to an accident, or otherwise called upon to be a witness through a subpoena, and may not really want to get involved.  I mean really, who wants to be a witness in a lawsuit?  Probably nobody.  But if you are ever called upon to be a witness, or to be a juror, it is a time to stand up as an American, to be patriotic, to be honest, and tell the truth.  In my view, if you seek the truth,, and if you tell the truth, the truth will set you free.

Understanding the Florida Collateral Source Rule

On December 21, 2010, the First District Court of Appeals in Florida ruled against Nationwide Insurance in it’s attempt to circumvent the rule of evidence that prohibits defendants from introducing any evidence of health insurance benefits paid on behalf of the injured party.  In Nationwide vs. Harrell, 35 Florida Law Weekly D 2873, the court ruled that the collateral source rule prohibits the introduction of any evidence of payments of collateral sources (i.e. health or disability insurance payments) citing to the long history of precedent.  The only exception to this rule would be for governmental benefits such as Medicare or Medicaid, in which case a defendant can inform the jury of the benefits.  The rationale behind preventing a jury from knowing about health insurance benefits, versus allowing a jury to hear about governmental benefits, is that where benefits are earned by a person who pays from them out of their own pocket or as monies deducted from their paycheck, he or she should not be penalized in court for taken responsibility for their medical care.  Whereas, all people may obtain Medicare or Medicaid as a matter of right or entitlement without earning it.  This rule perhaps bears some resemblance to the rule that prevents a plaintiff from informing the jury that the defendant has liability insurance that will pay the judgment.

The collateral source rule is not only a rule of evidence, as described above, but is also a rule of damages, in that it permits an injured party to recover full compensatory damages from a tortfeasor (at fault party) irrespective of the payment of any element of those damages by a source independent of the tortfeasor.

The Florida Legislature has since modified this common law rule of damages to require that judges reduce the amount awarded in past medical or lost wages by the amount that any health or disability insurance company has a right of reimbursement on.  In other words, if a person has sustained $100,000 in medical expenses, but under his contract with his  health insurance company, only $50,000 was actually paid by the insurer and the other $50,000 was written off under the terms of the health insurance contact (so that the doctor or hospital can not “balance bill” the patient for the remainder) the injured person can not keep the additional $50,000 awarded by the jury.  This prevents a double recovery.  In practical terms, a jury should be able to see the full amount of the medical expenses as it also serves as evidence of the amount of damages a person has sustained.  The amount that the health or disability insurer has a right of reimbursement on does not get reduced by the judge.  The court then sets off the amount the person paid in obtaining the health insurance benefits, for example the amount paid in premiums to keep the insurance in force, and then would enter final judgment accordingly.  Injured plaintiffs must then reimburse health insurance and disability insurers for the amount that was apportioned in the final judgment as set fort forth in the statute below:

768.76 Collateral sources of indemnity.—

(1)In any action to which this part applies in which liability is admitted or is determined by the trier of fact and in which damages are awarded to compensate the claimant for losses sustained, the court shall reduce the amount of such award by the total of all amounts which have been paid for the benefit of the claimant, or which are otherwise available to the claimant, from all collateral sources; however, there shall be no reduction for collateral sources for which a subrogation or reimbursement right exists. Such reduction shall be offset to the extent of any amount which has been paid, contributed, or forfeited by, or on behalf of, the claimant or members of the claimant’s immediate family to secure her or his right to any collateral source benefit which the claimant is receiving as a result of her or his injury.

(2)For purposes of this section:

(a)“Collateral sources” means any payments made to the claimant, or made on the claimant’s behalf, by or pursuant to:

1.The United States Social Security Act, except Title XVIII and Title XIX; any federal, state, or local income disability act; or any other public programs providing medical expenses, disability payments, or other similar benefits, except those prohibited by federal law and those expressly excluded by law as collateral sources.

2.Any health, sickness, or income disability insurance; automobile accident insurance that provides health benefits or income disability coverage; and any other similar insurance benefits, except life insurance benefits available to the claimant, whether purchased by her or him or provided by others.

3.Any contract or agreement of any group, organization, partnership, or corporation to provide, pay for, or reimburse the costs of hospital, medical, dental, or other health care services.4.Any contractual or voluntary wage continuation plan provided by employers or by any other system intended to provide wages during a period of disability.

(b)Notwithstanding any other provision of this section, benefits received under Medicare, or any other federal program providing for a Federal Government lien on or right of reimbursement from the plaintiff’s recovery, the Workers’ Compensation Law, the Medicaid program of Title XIX of the Social Security Act or from any medical services program administered by the Department of Health shall not be considered a collateral source.

(3)In the event that the fees for legal services provided to the claimant are based on a percentage of the amount of money awarded to the claimant, such percentage shall be based on the net amount of the award as reduced by the amounts of collateral sources and as increased by insurance premiums paid.

(4)A provider of collateral sources that has a right of subrogation or reimbursement that has complied with this section shall have a right of reimbursement from a claimant to whom it has provided collateral sources if such claimant has recovered all or part of such collateral sources from a tortfeasor. Such provider’s right of reimbursement shall be limited to the actual amount of collateral sources recovered by the claimant from a tortfeasor, minus its pro rata share of costs and attorney’s fees incurred by the claimant in recovering such collateral sources from the tortfeasor. In determining the provider’s pro rata share of those costs and attorney’s fees, the provider shall have deducted from its recovery a percentage amount equal to the percentage of the judgment or settlement which is for costs and attorney’s fees.

(5)Any disputes between the claimant and the provider as to the actual amount of collateral sources recovered by the claimant from a tortfeasor shall be subject to determination by a court of competent jurisdiction. In determining the actual amount of collateral sources recovered, the court shall give consideration to any offset in the amount of settlement or judgment for any comparative negligence of the claimant, limitations in the amount of liability insurance coverage available to the tortfeasor, or any other mitigating factors which the court deems equitable and appropriate under the circumstances.

(6)A claimant shall send the provider of any collateral sources, by certified or registered mail, notification of claimant’s intent to claim damages from the tortfeasor. If the claimant has filed suit against the tortfeasor at the time such notice is sent, a copy of the complaint against the tortfeasor should be sent along with such notice. Such notice must include a statement that the provider of collateral sources will waive any right to subrogation or reimbursement unless it provides the claimant or claimant’s attorney a statement asserting payment of benefits and right of subrogation or reimbursement within 30 days following receipt of the claimant’s notification to the collateral sources provider.

(7)Within 30 days after receipt of the claimant’s notification of intent to claim damages from the tortfeasor, the provider of collateral sources must provide the claimant or claimant’s attorney a statement asserting its payment of collateral sources benefits and right of subrogation or reimbursement. Failure of the provider of collateral sources to provide such statement to the claimant or claimant’s attorney within the 30-day period shall result in waiver of any claim to subrogation or reimbursement by the provider with respect to any such collateral sources. No right of subrogation or reimbursement shall exist for a provider of collateral sources that has waived its right of subrogation or reimbursement pursuant to this subsection.

(8)Reimbursement of a collateral sources provider pursuant to this section shall satisfy such collateral sources provider’s right of subrogation or reimbursement. The provider shall have no right of subrogation or reimbursement for collateral sources payments made after the date of waiver, settlement, or judgment.

(9)A collateral source provider claiming a right of subrogation or reimbursement under this section shall cooperate with the claimant by producing such information as is reasonably necessary for the claimant to prove the nature and extent of the value of the collateral sources provided. The failure of the collateral source provider to cooperate may be taken into account by the court in determining the right to or the amount of the reimbursement asserted.

Doctor’s & Nurses Confess Their Errors in Killing a 2 Year Old Girl, a 71 Year Old Man, and a 60 Year Old Woman

There is a must read article for anyone interested in patient health and safety.  It appears in the October, 2010 edition of Reader’s Digest.  I found it interesting to note that none of the doctor’s or nurses interviewed blamed lawsuits for causing their medical errors.  Instead, it appears what causes the errors is the way the health care system itself operates.  Primarily, the inadequate training of some interns, a code of silence when errors do happen, the way hospitals are administered, and the way insurance companies operate in putting profits over people.  The full text of this article is available here. Do you think that giving physicians and hospitals more and more immunity from liability so they can not be held responsible legally for their errors will make it safer for patients?  Who are we kidding when we pass tort reform laws that make it more and more difficult to bring a legal claim against a doctor or hospital?  There are no easy answers, but there are some common sense answers, and in this article you will read actual medical personnel give some of their thoughts about how the system can be made safer so that innocent people, like the victims that died here, do not suffer or die as a result of medical negligence.  My hat is off to these providers for telling the truth here and working toward trying to make our health care system safe.

 

Press On. Persistence & Determination in Law, in Life, & in Love.

Press On

“Nothing in the world can take the place of persistence. Talent will not; nothing is more common than unsuccessful men with talent. Genius will not; unrewarded genius is almost a proverb. Education alone will not; the world is full of educated derelicts. Persistence and determination alone are omnipotent.”  U.S. President Calvin Coolidge.

As I reflect on my past in my roles as an attorney and just as a person and now as a father and a husband as well as a son and a brother and a friend of others it makes me think of this favorite quote of mine.  Persistence and determination alone are omnipotent.  Talent and skill and knowledge, good looks or the ability to speak well or write well may be important but none of them are really what is most important.  One of the most important factors in our happiness and “success” in life, whether it’s in law, in life as a person, or in our ability and capacity to love others is our ability to remain persistent and determined to continue to have an open mind, remain flexible, and work hard and think long term about what our goals really are in life and what we are really trying to do.

Persistence & Determination in Law

So as an attorney in law ultimately I am always looking ahead towards how can I help people who become clients to achieve the goals that we set together in terms of trying to work towards a fair and equitable resolution of their case.  For purposes of preparing a case to present before a jury at trial, ultimately looking and analyzing what are the key facts that establish what the defendant did wrong in a case and crafting the argument to summarize and clarify and present those facts in the most reasonable and clear-cut and honest and truthful way.  I’ve always said that if you don’t have the truth going for you in a trial you might as well pack up your bag and head home and voluntarily dismiss your case and explain to your client why you cannot go into trial for them and I do that up front and decline to take cases or clients where I don’t have the truth going for me from the beginning.  So in the law and as an attorney, persistence and determination play a critical role in helping to establish the true facts of the situation and cut through all the complexity and barriers that defendants and their interests that represent them often try to place before us, the roadblocks that are put there to avoid getting to the truth.

Persistence & Determination in Life

As an ordinary person, persistence and determination has played a major factor in my life in my ability to continue to move forward with my education and personal goals.  Both as a young man getting through high school, college and law school and working hard to try to achieve grades and passing exams and getting through the formalities to become an attorney, start a business, and just to try to live a healthy, happy, and responsible life.  To this day and as I look forward I feel persistence and determination alone are sort of the driving factors that will allow me to continue forward and try to do the right thing and be true and honest to my friends, my clients, and my family.

Persistence & Determination in Love

Although it may sound flaky, persistence and determination in the area of love, and ultimately what I’m trying to do with my life, with not only my family, my friends, my clients, myself and with my fellow citizens and people everywhere is to love people deeply, truly and honestly and try to help them, encourage them and support them in a way that clarifies and cuts through all the surface attitudes and behaviors and get to the heart of what love is all about.

Often times in personal relationships there can be highs and lows and ups and downs, miscommunications, misunderstandings, emotions that can play a role in damaging a relationship and I’m a big believer in maintaining open and honest communication not just with clients, not just with friends, not just with family, but with all people to try to maintain the integrity and the love of the relationship and the fairness and the friendship.  I have learned that it is also important to maintain a healthy and deep felt love and respect for yourself and keep your own commitments and do what you feel is truly important for you, which is why I’m even sharing this with you.

Whether it’s in the areas of the law practice, or in life as a person, or in family and friendship relations, love plays the main role behind the scenes of ultimately what I’m trying to do with my life.  To try and help people and be a fair, honest, and truthful person.  Hopefully, someday at the end of my life I would hope that my family, friends and clients and anyone that I may have met or touched would be able to say that I loved them in my own way in our relationship and hopefully helped them in some way and in that sense lead a good life and made the world a better place for others.  Press On in Law, in Life, and in Love!

Maintaining Integrity to Principle of Constitutional Equality

Since putting a post on Facebook earlier this week in reference to my shock over learning about the Florida law that made it illegal for homosexuals to adopt children I had spoken with a couple of people that had basically inquired why do I care so much about that or why would I even put something like that on my wall and so what I did was I wanted to give it some more thought and basically what it comes down to is, is I don’t particularly care more or less about homosexuals than I do for anyone else in this country, any other citizens, and I do believe that all of us have the same fundamental human rights that are granted to us not by the government or by anyone else but as a result of natural inalienable rights which are given to us as a matter of natural law through our ultimate creator or God or higher level of consciousness as human beings.

And so to find out that Florida is the only state in the entire country that has a law outlawing adoption for gays, for homosexual people, just made me realize that such a law is really discrimination against these people who otherwise are supposed to be equal under the law just like anyone else.  For that matter the entire political movement whether it be people in the Tea Party or otherwise who are campaigning on politics of discrimination against gay people whether it be riling up crowds to get them fired up in an anti‑gay fury for political reasons, whether it be anti-gay marriage or anti‑gay adoption in this case; this fundamentally goes against everything our Declaration of Independence and our constitutional principles of equality under the law stand for.  And so I’m very disappointed in that movement and the people who are behind that.

Secondly I think that it’s an injustice to the good, loving, hardworking people who happen to be gay that they are not allowed to adopt children or not allowed to be married for that matter.  I don’t advocate for gay people; I don’t personally subscribe to their chosen lifestyle; however I do feel that what is natural for them, and how they express love, is no reason for the government to discriminate against them and say that they are not entitled to the same rights and privileges of every other citizen of this country.  And therefore I think someday whether it’s 10 years from now, 100 years from now or 200 years from now, American citizens will someday look back on this issue as we now look back on issues such as the fact that women at some point earlier in this country’s history did not even have a right to vote.  How we look back on now the ugly fact we were a nation with slavery, holding human beings in slavery for involuntary servitude, which goes against every type of fundamental human rights law in this country and in this world. And ultimately Abraham Lincoln was the one who said in the Gettysburg Address that that concept did not square with what the fundamental principles of the Declaration of Independence were and that ultimately whether it’s slavery, or not giving women the right to vote, or not allowing in this case gays to get married legally or to adopt children legally, a country which is set up on foundational principles of equality must stand true to those principles and apply them uniformly and equal to everyone.  Otherwise we are in our own sense, in our own country, being hypocritical in saying that we stand for equality but are not actually practicing according to our stated constitutional principles of law.

Florida Patient’s Constitutional Right to Information About Medical Malpractice Incidents

Back in 2004 the people of Florida voted to amend the Florida Constitution to require all health care providers to give full access to all records made or received as a result of an adverse medical incident that caused or could have caused injury or death to a patient.  Since then, health care providers have attempted to avoid their responsibility in not fully complying with the constitutional mandate.  Recently, in Baldwin vs. Shands Teaching Hospital & University of Florida, 35 Fla. L Weekly D2139 (September 23, 2010), Florida’s First District Court of Appeals set the law straight and set the hospital straight on what is required of a hospital when asked to disclose such records.  Florida Statute 395.0197 (1) requires every licensed health care facility to have an internal risk management programs for investigation and analysis of the frequency and causes of adverse incidents to patients.  In cases involving serious injury or death caused as a result of medical malpractice, the hospital will typically create an incident report and a peer review record as well as other documents that may provide material evidence of the facts and circumstances surrounding the incident.  The public policy of Florida behind the Constitutional Amendment in Article X, Section 25, was to bring all of these records to light to expose as much of the truth as possible about what caused or could have caused the injury or death.

When hospitals fail to disclose all of these records upon request by a patient or the patient’s representative, they violate the law.  Period.  In the Baldwin case, Shands Hospital and the University of Florida were arguing that the incident in that case, a patient who’s throat was perforated during intubation by an anesthesiologist, did not qualify as an “adverse incident.”  The trial judge had ruled that the plaintiff, Mr. Baldwin, was not allowed to get the records of the incident in his lawsuit.  The appeals court determined that because the plaintiff had investigated the case and obtained an affidavit from a physician stating that there were good faith grounds to believe that his injury was caused as a result of medical negligence, the plaintiff had made a sufficient showing to require the hospital to produce the incident report and the peer review records related to the incident.  Because the necessary showing of evidence that the injury had been caused by an adverse incident, the trial judge was reversed by the appellate court and was instructed to order Shands Hospital and the University of Florida to produce all records of adverse medical incidents.

When you read this case and give it some thought, the next time you hear somebody talking about the need for tort reform in medical malpractice cases, ask yourself if you honestly believe that hospitals are standing up and fighting for your safety as a patient, or the safety of your loved ones.  Who had to fight in this case to expose the truth about what happened here?  Which side had a frivolous argument?  Was it frivolous of the patient who had this throat perforated to pursue his constitutional right to have access to the records surrounding his incident?  If the hospital was truly advocating for patient health, safety and welfare, wouldn’t it want to be transparent and produce all of its records surrounding an adverse medical incident in order to comply with the Florida Constitution and show a judge a jury the truth?  When anyone or any entity, whether a doctor or a hospital or anyone else seeks to subvert the rights of citizens to enforce their Constitutional Rights, thank God we have our state and federal court system to set the record straight, to set the law straight, and serve as the justice provider for our great nation.