The Florida Legislature Seeks to Infringe on your rights

Perenich Injury Lawyer

Below is an interesting article about a proposed bill that could have a serious impact on your rights.  Whether your are involved in a lawsuit or not.

By Debra Henley
Published by Florida Voices

The Florida Legislature is at it again, and this time it is a full-blown assault on the rights of patients, most disproportionately women.

First, if you are a victim of medical malpractice, this bill would allow healthcare providers, insurance companies and their lawyers to speak to your treating physicians without your consent and outside your presence. In other words, opposing attorneys could interview your OB/GYN, your psychiatrist, or anyone – just to gather more information against you in a lawsuit.

A second provision would require cases involving the failure to administer a supplemental diagnostic test to be proved at a clear and convincing burden of proof. A common form of diagnostic testing is the mammogram used to detect early stages of breast cancer. This harmful legislation would remove the incentive of doctors to administer this life-saving test and would endanger the lives of countless women.

But the most egregious provision allows doctors to REQUIRE patients to sign arbitration agreements prior to receiving care. Patients already face an abundance of paperwork when seeing a physician, and these arbitration agreements would be included in hopes most patients sign without reading.

A hypothetical debated by a Senate committee involved a doctor requiring a patient to waive their right to trial, accept an arbitrator of the doctor’s choosing and agree to limits on damages at $10,000 for actual damages, i.e., costs of healthcare, lost wages, etc., and $10,000 on noneconomic damages, i.e., pain and suffering. In such a case where the injured patient is the family’s breadwinner and becomes permanently disabled, she would only be entitled to $20,000 to manage the rest of her life.

Limiting lawsuits doesn’t magically make the doctor’s harm go away; it simply denies patients from receiving what they are legally entitled. When arbitration or other limits make it impossible to recover, rather than the highly profitable medical malpractice insurance industry paying their bill, we the taxpayers pay them through higher Medicaid and Medicare budgets and other forms of state assistance.

Fortunately, language making emergency room medical providers agents of the state for purposes of malpractice was deleted. This provision would have capped damages that injured patients could recover at $200,000 per provider and $300,000 per incident with the excess amount to be paid by taxpayers. But this change doesn’t cure a fatally flawed bill.

This legislation in its current form is dangerous for Florida’s patients. The Florida Legislature must not allow reckless and negligent medical providers to get away with adding insult to the injuries they cause. 

Mark Perenich Personal Injury Lawyer

 

 

Mark Perenich’s verdict

Please check out my spot in  this recent publication concerning a recent 54 million dollar verdict.

  • Exec must pay $54 million for killing his wife’s friendA former globe-trotting executive who was convicted of killing his wife and her friend was ordered to pay $54 million by a civil jury for the death of his wife’s friend.Patrick A. Evans, once a vice president at international electronics company Jabil Circuit who handled the company’s business in Aisa, shot his wife, Elizabeth, and her friend Jerry Taylor in their Florida condo. A jury convicted him of murder and recommended the death penalty. Taylor’s family sued in a wrongful death lawsuit.

    Attorney Mark Perenich

    The verdict includes $4 million “for the endless pain he has inflicted” against Taylor’s 10-year-old daughter Francesca, said attorney Mark Perenich, who handled the case. Francesca, who was 7 at the time of the killings, was interviewed in a videotaped deposition, which was played for the jury, Perenich said.Although Evans is unable to pay $54 million, the former exec may have assets to cover some of the award, including a waterfront home, a condo, and an airplane, Perenich said.

    Another lawsuit seeking monetary damages on behalf of his wife’s family is underway.

    Evans will find out at the end of this month whether he will be sentenced to death.

    Learn about personal injury or contact an attorney to answer your legal questions.

    http://blogs.lawyers.com/2012/07/editors-choice-jury-awards-edition-41/

Defamation, Libel, Slander: MJ V. Bubba the Love Sponge

I’ve had a few people ask me over the past couple of days about defamation, slander, and libel.  Most people do not know the differences between the terms, some think they are interchangeable.  Here in the Tampa Bay area a law suit was filed by Todd “MJ Kelli” Schnitt against that Bubba the Love Sponge Clem.  Schnitt alleged that he was defamed by the remarks made by Bubba Clem.\

What is Defamation?

At common law defamation is the act of harming another’s character by making a statement to a 3rd party that tends to adversely affect one’s reputation.  To establish a case for defamation the plaintiff my show the following

1)      Defamation language from the defendant:  This can be language that attacks or impeaches at persons, integrity, virtue, honesty, sanity, or some other quality.

2)      The language of the statement in question must concern the plaintiff, a reasonable people must know that (in this case) Bubba was talking about MJ or his wife.

3)      There must be some sort of publication of the defamatory language to a third person or third party.

4)      The plaintiff must suffer damage to their reputation.

When a case concerns a public figure, like Todd Schnitt, the plaintiff must show two additional factors:

1)      The statements made were false.

2)      The defendant was at fault.

Defamation can me through multiple means, pictures, video, spoken, satire, drama…

Statements of opinion are actionable e.g.  “ I think Todd Schnitt pays for fake ratings.” Can create grounds for a defamation action, if it is based off express facts, and an express allegation.

What if the statement is made about a group of people?

  • If the statement refers to all members of the small group then each member may establish that the statement concerns them (e.g. the Tampa German American society launders money through the sour kraut counterfeiting.)
  • If it’s a large group, then none of the members can bring a case (E.g. The Teamsters union is full of liars).

Publication requirement:

  • The defendant must publish the statement to someone other than the plaintiff.  This publication can be done intentionally (as it was alleged here) or negligently.  The defendant must have intent to publish not defame the plaintiff.
  • What about magazines, newspapers, and the like?
    • Newspapers, magazines, TV stations etc can be sued as if they were the primary publisher, for defamation if they repeat the defamatory comments

Damage to the plaintiffs reputation:

  • The type of damages depends on whether the plaintiff is seeking to prove libel or slander.  In some cases the plaintiff must show that they have suffered special damages i.e. a pecuniary/financial  loss in order to recover.  However once a plaintiff proves special damages they can also receive general damages.

So what is Libel?

  • Libel is a written or printed publication of the defamatory statement.  Here the plaintiff does not need to prove special damages and general damages are presumed.

What is Slander?

  • Slander is spoken defamation.  A plaintiff must prove special damages unless defamation falls into one of the following categories:
    • Adversely reflects one’s conduct in a business or profession.
    • Plaintiff has some terrible disease
    • The plaintiff is or was guilty of a crime involving moral turpitude; or
    • A woman is unchaste

So what is a radio broadcast like the one in this case?  Most courts will treat radio broadcasts as libel.

How does the First Amendment play into this?  Didn’t Bubba use the 1st amendment as his defense?

  • When defamation involves a matter of public concern the plaintiff must show falsity of the statement and fault of the defendant.
  • How does one prove fault?
    • If the plaintiff is a public figure or public official like Todd Schnitt, the plaintiff must show malice
    • What’s malice?
      • Knowledge that statement was false.
      • Reckless disregard as to whether the information was false.
        • Ill will or spite is not enough in this case
  • A private party need not say malice, a private party need only show negligence.

Defenses to defamation?

  • The defendant could argue that the plaintiff consented to the comments.
  • The defendant could also argue that his comments are the truth.

The only thing it didn’t have, according to jurors: evidence that Bubba the Love Sponge Clem defamed his radio rival Todd “MJ Kelli” Schnitt.

If you have a question about defamation please call Mark Perenich today 727-386-9677