Evidence destroyed? Do I still have a case?

What happens when evidence is destroyed in a case?

Spoliation of Evidence: what is it and what can you do about it?

Mark Perenich is a personal injury lawyer in Clearwater he has more than 30 years experience with various cases from Car accidents to Medical malpractice.

What is ‘spoliation’ of evidence?

Spoliation is the alteration, destruction or loss of evidence which is involved in litigation.

What example can be given of spoliation of evidence?

A creditor who is suing for the payment of a sum of money on a contract has in his safekeeping the only copy of the contract which was signed by the debtor. If during discovery or litigation the debtor’s lawyer borrows the only signed copy of the contract and loses it when his briefcase is taken by a mugger, there is spoliation of evidence. If the office of the debtor’s lawyer burned down to the ground, the contract is destroyed by fire; there is also spoliation of evidence. If the contract which was in the office safe was not destroyed in the fire but the ink was smudged due to water damage so that the contract’s contents are illegible, then there is also spoliation of evidence as it was altered.

What is the effect of spoliation of evidence?

When an object which is supposed to be presented as evidence is spoliated it is not only destroyed, altered or lost, it becomes unavailable for a party to use to prove his claims. Depending upon the importance of the evidence to the litigation and depending upon the good or bad faith of the party who lost it, the party who was disadvantaged by the loss, alteration or destruction of the evidence is given the recourse of suing the spoliator – he may also be sanctioned by the court.

Is the loss, alteration or destruction of all kinds of evidence sanctioned?

No, the evidence must be key evidence and it must be essential to the subject of the litigation. In the example above, the contract is a key piece of evidence and essential to prove the creditor’s claims. The creditor is disadvantaged because the contract which was reduced to writing is the best evidence of the particulars of the agreement between him and the debtor. The signature of the debtor is the best evidence that he has agreed to be bound by the agreement. Unless the creditor can prove the contents of the agreement through a photocopy or by an exchange of letters or emails between the creditor and the debtor, he will not be able to prove his claims.

Wrongful Death Stautes

What kinds of sanctions can be imposed on the spoliator?

In the example above, the debtor may claim that sum of money the creditor was suing for should not be paid as he had not delivered the goods in exchange for the sum of money. The pleadings or documents filed in court by the debtor to prove his alternative defense of non-delivery of goods may be stricken from the record.

If the debtor filed a counterclaim in damages against the creditor, his counter claim may be dismissed. If the debtor assailed the genuineness of his signature on the document and presented the testimony of a handwriting expert, the expert testimony based upon the missing or destroyed evidence may be stricken from the records. The debtor may be declared to be in default and will therefore lose his right to present his own evidence. Or, an evidentiary presumption may rise against him.

What happens if the spoliation is inadvertent or accidental?

In determining the sanction to be imposed, the court takes into consideration not only the importance of the evidence to the subject of the litigation but also the motives of the spoliator. Bad faith is when the party deliberately destroyed or altered the evidence to deprive the opposing party of his right to prove his claim.

In the example above, the debtor’s lawyer lost the document because he was mugged and the contents of his entire briefcase was taken by the mugger. Unless the story of the mugger was fabricated, it cannot be said that the loss of the copy of the contract was intentional, deliberate or calculated to deprive the creditor of his just claims. There can be no bad faith attributable to the debtor’s lawyer.

What are evidentiary presumptions and how do they work as sanctions?

There is a saying that evidence withheld is presumed to be unfavorable if produced. That is to say when bad faith attended the loss, destruction or alteration of an essential piece of evidence, the court will deem the loss, destruction or alteration of the evidence to have been accomplished because it was unfavorable to the spoliator.

In the example above, if bad faith on the part of the debtor or the lawyer is shown, the court will deem that the debtor or lawyer destroyed, lost or altered the contract because if it had been produced in court, it will be adverse evidence against the debtor.

Why is spoliation sanctioned?

Imposing sanctions on the spoliation of evidence in bad faith maintains the integrity of the court system. If such acts were not sanctioned, any person can defeat claims against him by simply destroying evidence. Also, the court has an interest in seeing that evidence is preserved because courts cannot decide cases if evidence goes missing or is destroyed. Missing evidence delays the disposition of cases by the court.

In the example above, lawyers are officers of the court and they have a duty and accountability before the court to maintain the integrity of the legal processes. They are supposed to maintain fair play in their dealings especially in keeping documentary evidence safe.

If you have any questions about this or any personal injury case please contact Mark at 727-386-9677

Bike hit by a car?

Bicycle Accidents

Mark Perenich has handled numerous accidents where a pedestrian on a bike was hit by a car. These are very unfortunate accident be sure to chose an attorney with the skills and qualifications to help you.

 

Look at this guy, he was in a bike accident. Probably hit by a car, not a good time. He needs a personal injury lawyer NOW!
Look at this guy, he was in a bike accident. Probably hit by a car, not a good time. He needs a personal injury lawyer NOW!

I would first off like to say: if you are riding you bike, PLEASE wear a helmet. If you do not have one check back as I will be giving one away.

 

What To Do When Your Bicycle Is Hit By A Car

More and more people are riding their bikes on a regular basis. You may be one of the millions that have taken to the streets with one of these, and you’re in danger. There’s an inherent danger when you’re trying to share the road in a legal manner, because there are motorists that will try and side swipe you and cause you a great deal of headache. You’ll find that without the help of a highly motivated bicycle accident lawyer, you could end up dealing with a lot of problems associated with getting hit. From paying for your medical bills to buying a new bicycle, you’ll find yourself in a world of issues that you may not be ready to deal with.

Hiring a Lawyer For Protection

When looking for a bicycle accident lawyer Clearwater, you will not just be doing it for the purpose of getting monetary compensation, you will be getting protection against the violations of your rights. As a bicyclist, you have rights that other motorists may have. If you’re struck by a vehicle, and you go down, they have committed a criminal act if they decide to run off. Not only that, they are liable for your damages and medical bills. If they stop and throw money at you, or they speed off, make sure that you hire a lawyer immediately. Not only that, you want to protect yourself against frivolous lawsuits.

Some motorists will try to say that the accident was your fault, and will even sue you for damages that they incur on their vehicle. This may be a problem on many levels, and the last thing you want to do is try to fight it on your own. With a bike accident or even a pedestrian accident, rights can be violated swiftly so be careful.

Getting Back on Your Bike

Getting back to your routine, riding your bike, and trying to live your life on your terms after an accident is going to be difficult. However, it is not something that is impossible, or should cause you any sort of distress. Making sure that you are able to heal, and get back on your bike, back to work, and live your life according to your terms is something that can be done with the help of legal, and medical professionals.

It’s easy for others to try and trample all over your rights. This is especially true when many legal teams try to fight to get money from innocent victims. Don’t allow anyone to trample your rights or steal your money, get protected and helped with an attorney that specializes in bicycle accidents and injuries. You will find that with a helping hand, you can fight back, and get your medical bills covered, and then some. There’s no reason why you should fight alone, or feel like you’re alone out there. There is hope for a brighter future, and it is found with the assistance of a legal team that will have your back.

Hiring a Medical Malpractice Lawyer Tampa

After a recent conversation with a prospective client I thought I would go through some of the benefits of hiring a medical malpractice attorney

Benefits of a Medical Malpractice Lawyer

The medical world doesn’t always get it right. It happens a great deal of the time, but there are times when you will come out of a procedure, or diagnosis and something has gone awry. In those times, you or someone you know can feel helpless, without assistance. It’s hard to deal with problems associated to the medical world, which is why medical malpractice lawsuits are filed. If you have ever wanted to investigate this, or feel that you’ve been a victim, all you need to do is contact a medical malpractice lawyer. This may not be the first thing that comes to mind at first, but it will definitely be clear, when you ascertain the benefits involved.

 

Doctor

Explanation of Your Rights

When you go into a hospital or any sort of medical facility, you are not told all your rights. Patients have rights that are sometimes hidden in fine print (normally and arbitration agreement), and long formatted texts. You may be rushed through signing paperwork so that a doctor can get to work helping you, or any number of reasons. When you visit a lawyer, however, they will sit down with you and explain the rights that you have as a patient and even talk about what may have gone wrong. If your rights have been violated in any way, you will have a case, and that could help offset the costs of repair, and even pay you for damages after the fact.

A malpractice attorney spends their lifetime trying to help people that have become victims of the medical world. You may find this to be a bit scary at first, but it’s absolutely something that you need to understand on a grand scale. If anything goes awry while in surgery, or even when getting a vaccination, or blood drawn, you are to be cared for, and if insurance companies, and doctors don’t listen, you’ll have no choice but to ask for help from someone that will listen, an attorney.

Alleviating Problems

Millions of people end up losing their jobs, or having a pile up of bills start to show up on their doorstep, and it’s not an easy thing to get out of. No matter how hard you fight to avoid this issue, you may end up feeling sick, or not getting back on your feet properly. When these things happen, you absolutely have the opportunity to get help, and legal action can be taken. Legal actions don’t always mean that you get rich, but rather, your bills and your work life can be restored. You could even get a second opinion, or a corrective procedure done to alleviate the issue. Medical malpractice is a serious issue and something that should not be glanced over.

If you feel that you or someone you know is a victim of this problem, make sure that you seek out a little bit of help. Without the helping hands of a legal professional, you will not be able to overcome the hurdles that are thrown at you. Take into account the above and move forward with relative ease.

Hiring someone with experience:

Mark Perenich has 30 years experience, and has successfully handle numerous medical malpractice cases despite the medial malpractice caps law.

If you need a medical malpractice lawyer please call Mark Perenich today 727-386-9677

7 interesting Facts about Lawsuits in the Personal injury field

7 Things you need to know about Lawsuits

Large Corporations, who have been defendants too many times in various cases and paid millions in fines and compensation to the plaintiffs, have now resorted to lobbying against and bullying the Justice system by spreading misconceptions about lawsuits. Perhaps the ‘Business consultants’ hired by these corporations found that the corporations can save money by not fighting costly legal battles and not paying huge compensation but instead just spreading white lies and creating a lobby that convinces legislatures and the general public that lawsuits are harmful for Businesses and Individuals. Let’s address a few of these misconceptions step-by-step –

 Misconception #1

Punitive damages awarded to plaintiffs, destroys many businesses due to the huge amounts involved.lady justice clearwater

Fact –

Punitive damage was awarded to only 3% of tort cases in which the verdict was in favor of the plaintiff and in contract cases (businesses fighting businesses) it was nearly thee times that at 8%., for the year 2005. The median compensation a tort case plaintiff was paid was $55,000 (keep in mind that part of this money goes to pay back the medical bills). It goes on to show that punitive damages are paid in significantly lower number of cases than what corporations make them to appear and the amount paid is also significantly lesser than the ‘millions’ they proclaim and want us to believe.

 Misconception #2

Lawsuits increase the cost of Medical Treatment and Medical practitioners are not able to practice because of lawsuits.

Fact –

Doctor Clearwater

Out of over 20 million hospitalizations each year in America, nearly 600,000 patients –safety incidents takes place. Each year nearly 200,000 people die due to medical negligence. The number of medical malpractice suits filed each year in U.S. lies only between 15,000- 19,000. If total healthcare spending is taken into picture, only two percent of it is spent on malpractice and this data comes from Congressional Budget Office.

The total number of physicians practicing in U.S. has increased from 8, 50,085 to 8, 78,194 in just two years between 2010 and 2012 and this trend has been in place since decades. Between 1990 and 2006 the overall increase in physician practicing in U.S. was 40% while the population of U.S. increased by merely 18% in the same period.

Misconception #3

Lawsuits Jeopardize and destroy small businesses hence legal reforms are needed to curb them.

Fact –

Yelling at an attorney

If litigation was really a cause of concern, why its abuse is ranked as the last worry of Manufacturing Companies? Yes, According to the survey conducted by National Association of Manufacturers in 2006, Abuse of litigation was ranked at the last position.

One look at the list of corporations who have been sued the most, and the three dominant type of industry one can find common in them are – Oil, Pharmaceuticals and Insurance. Small business owners have ranked ‘threat of lawsuits’ as among the least important worries and ranked it at the 65th position that is a cause of worry according to a survey conducted by National Federation of Independent Businesses. It is clear that who is spreading the lies about lawsuits jeopardizing small businesses.  I always tell people, if you are running a business honestly, and you are making sure that you patrons are safe, then you need not worry.

Misconception #4

Lawsuits against Companies and businesses have risen over time

Fact –

Actually, quite the opposite of that has happened. If one compares the data of lawsuits filed in years between 1998 and 2009, one can see that the number of tort cases being filed has gradually declined by almost 25% and in state courts it has decreased by almost 6% in between 2007 & 2008 while contract litigation (businesses suing other businesses) increased by 25% in the same period. The U.S. Department of Justice has stated in a report it released in October 2011 that “Few civil cases are actually tried, as most are settled by mutual agreement outside the court system”, a testimony to the fact that trials and proceedings for tort cases has reduced considerably over time.3D Character and Question Mark

 Misconception #5

The amount of fees charged by attorneys on per hour basis is shockingly high which makes filing a Lawsuit significantly costlier.

Fact –

Most of the attorneys, who fight tort cases, charge the clients Contingent fees and do not bill them on a per hour basis.

In a contingent fee system, the client pays a share of the compensation that is awarded to the attorney if he / she win the case. There are many cases that personal injury lawyers settle and they often times make very little.  E.g. If I settled a case, and I got paid attorney’s fees totally $5,000.  That seems good, however about half of that goes to overhead of running a law firm, and paying staff. I still have $2,500 left over: that would be a nice pay check right? Sure, however I probably spent 1oo hours on the case by that time, unless I’m settling a case under what I think it should settle for (this is something that happens in other law firms where your lawyer does not litigate cases) 

Misconception #6

The insurance premiums are rising because of litigation3d person and globe3d person and globe

Fact –

With ‘ObamaCare’ being passed and the shares of Insurance companies flying high, there is an average expectation of premiums rising by 8-10% each year, compared to that tort cases don’t even account for 1% of the billings of the healthcare and Insurance industries. The insurance companies in America made a combined record profit of over $60 billion in 2007. 

Misconception #7

A fairly large share of the taxes collected from the public is spent on litigation.

Fact –

Again this is something that has been spread by the lobbyists of the large corporations, there is no accurate evidence attached to these claims. As said previously, punitive damage is paid in only 3% of tort cases and even in those cases the median compensation was below $60,000.

Finally, we will like to say that seeking Justice and being heard is the right of every American citizen, these large corporations especially those involved in the business of Pharmaceuticals, Insurance and Oil are trying their best to suppress the voice of the ordinary citizen and their right to be heard, when wronged. By claiming that lawsuits are a cause of businesses going bankrupt or facing crisis, they are trying to avoid being accountable for their misdeeds.

Mark Perenich and the team and at Perenich Caufield Avril Noyes has fought numerous cases and launched several crusades against the Corporations who are hell bent in denying victims their rights and compensations. We know that these misconceptions regarding lawsuits have been spread by the large corporations, to convince legislatures into changing their stance regarding justice in the name of ‘Legal Reforms’. The strong laws of this country is what gives the average American confidence to live their life with freedom and ensures that they will get justice, no matter who or how big an entity has harmed them. When we represent a plaintiff, we don’t care who the defendant(s) are but instead how can we do our best in ensuring that the victim gets justice and is compensated for the harm done to him / her. Call 727-386-9677 for a free consultation.

 

 

 

Great idea for bike safety.

Bike Injury lawyer Mark Perenich

I was once an avid cyclist, I have noticed that the sport has been picking up more momentum as of late.  Maybe it’s not the sport of cycling itself, i.e. the Tour de France.  But there has been a push by younger generations to get around via peddle power.

For those that bike often this would be added protection like an airbag for your head.  Please see the video.

 

The Invisible Bicycle Helmet | Fredrik Gertten from Focus Forward Films on Vimeo.

Personal Injury Lawsuits: Five Mistakes to Avoid to Win Your Case

Clearwater Personal Injury lawyer Mark Perenich

Today we have a guest post. Entitled:Injury

Personal Injury Lawsuits:  Five Mistakes to Avoid to Win Your Case

 If you are like most people, you never planned to be in an accident.  While it was always a remote possibility (accidents do happen) most people assume that if they are in an accident the loss will be minimal.  Perhaps some damage to the vehicle which will be covered by a liability insurance policy.   We don’t consider that we could be the ones that need repair after an accident (not just our cars) and that the injury we sustain can take months or even years to recover from.

When it comes to having a case or requesting fair compensation by law, automobile accidents are just one type of personal injury claim that can be made.  There are a variety of circumstances where individuals can suffer an accident or loss that makes a second party liable for damages depending on the circumstances.

Understand that any time you experience an event which causes you harm cognitively or physically, that there is a question of liability and a right to request compensation for loss.  Filing a personal injury suit is a means of insuring that the care, therapies or other treatments needed to recover from your loss will be there to allow you to heal and get back to your normal activities of life.

Some other common types of personal injury cases are:

  • Insurance Disputes
  • Long Term Disability
  • Boating Accidents
  • Trucking/Logistic Accidents
  • Motorcycle Accidents
  • Construction or Workplace Accidents
  • Child or Sexual Abuse
  • Wrongful Death
  • Slip and Fall Injuries
  • Product Liability and Manufacturer Negligence

Regardless of the type of personal injury case you have, there are a number of ways you can actually damage your chances of successfully filing suit and winning a settlement. One of the unfortunate and consistent issues with personal injury claims is that element of surprise.   Since we never expect to get into an injury or sustain a personal loss, we do not adequately prepare ourselves for the event of one.  That is when costly omissions and mistakes which can jeopardize your case will occur.

We have put together five common mistakes made by personal injury claimants who should be avoided if you intend to win your case and the fair compensation that is owed to you.

Failure to Document the Incident

When unable to resolve personal injury claims by private settlement, most suits end up going to court for decision.   Since serious injuries can result in significant monetary settlements, it is a high-stakes situation with the insurer (or the individual who is liable) fighting to avoid a costly payment.

The defendants can and will be looking for any loophole to argue the liability of the personal injury suit and try to discharge the claim and/or lower the amount of legal liability they have in the eyes of the court.  And the best way to do that is to isolate weaknesses in the personal injury claim.

Train yourself to record the pertinent information and key points that will support your personal injury claim.   These include:

  1. Date and time of accident.
  2. Weather conditions, ice, water or other environmental factors present at the scene.
  3. The speed you were driving (if operating a vehicle).
  4. Anything you may have overheard from other participants or people on the scene.
  5. Take pictures for documentation.  As many as possible.
  6. Lawyers for the defendant (or Insurer) will evaluate any weakness in the injury case as a means of reducing the amount of settlement they may be forced to pay.  That’s why documenting everything and doing it in a manner that is legally defensible is so critically important.

Delay in Reporting the Loss

For all personal injury claims there is a statute of limitations.  Some of these limitations are outlined in private contracts where insurance coverage is involved, and can be found in the waiver that is signed by tour operators and transportation providers, for instance.   In some cases they allow you a shorter amount of time with which to report any personal injury that occurs as a result of their personnel or equipment and facilities.

If you are considering a law suit for personal injury you must act quickly following the accident, and seek the advice of a lawyer immediately.   The Lawyer will be able to ascertain whether you have sufficient circumstance to file a claim.

Failing to Seek Medical Evaluation

If you have sustained an injury due to a motor vehicle accident, slipping fall or other kind of injury you may feel like a doctor’s evaluation is not needed.  Immediately following the accident the human body will elevate its adrenaline which can act as a temporary pain blocker while the injured is in shock.   You may have sustained a significant injury which may not present itself until the day or two days after the injury.  Ensure you see a doctor or emergency room immediately following any accident to get the important first examination which will measure and estimate physical loss (if any) for legal purposes.

Be Honest About Previous Injuries because you would be amazed by how much Insurance Companies are able to know about your health history, when it comes down to making a request.  It’s fraud, so don’t do it.

Refusal to Follow Medical Advice is another problem that can cause you to lose your personal injury suit.   If you have been injured and you are receiving therapy, ensure that you are following your practitioner’s advice precisely.   If it appears as though you may be exacerbating your injuries by not following medical advice, your law suit will be jeopardized.

We know that thinking about having an accident can be stressful, but it is important to prepare yourself for the day when you may be injured and confronted with the important task of presenting your best personal injury case for compensation.  Make a checklist of things to remember and keep it in your car and in your wallet to prompt you to pay close attention to the details that can give you the best chance at winning your law suit.

Author Bio:

Frank Pipolo is President of FP Internet Marketing a certified Internet marketing consultant, professional marketing advisor to law firms, legal marketers, administrators and lawyers, and writer for Swope, Rodante P.A., a Tampa Florida law firm that specializes inMotorcycle Accident Lawyer. He has more than 20 years’ experience partnering with clients to build their business through development and implementation of track-proven Internet marketing strategies.. Follow him on Google+

Personal injury lawyer Clearwater

Criminal Defense Attorney Guest Blog

Clearwater Personal injury attorney Mark Perenich

Today I have a guest blogger that is going to be discussing the importance of hiring a “sex crime lawyer.”  I recommend this article, especially if have strong basis for you being found not guilty.  I think most of my followers are not criminals, however life throws us curve balls so it’s best to be ready for anything.

Importance of Hiring a Sex Crime Lawyer

What is a sex crime?

Sexual crimes are serious concerns that carry harsh punishments. Any sexual act prohibited by law is treated as the sex crime. These crimes carry great deal of social stigma. Sex crimes are many which include rape, sexual abuse, statutory rape, indecent exposure and children molestation charges. If you are a completely innocent person being accused of a sex crime, then you should need a qualified criminal defense lawyer representing you. This is because being charged with a sex crime can be a distressing to your daily life and reputation. So it is very important to hire reputed sex crime lawyer.

 

Investigation process:-

Investigations are most powerful when experts are guided by specialized knowledge, sensitive to the needs and interests of victims etc. This process is carried out by the officials by examining the latest trends, thorough investigation and well preparing for trial. These law enforcement officers guide you in each and every step of the emerging trends and new laws and also analyze how they are influencing investigations. These officials have proper and effective methods to carry out the investigation procedures for sex crime cases.

The first step involved in investigation process is that, when you report the crime to the police, then it is referred as a complaint. It gives the brief details and an initial record of the crime. Then police ask you to make the statement.

Now, your specialized attorney who is trained to work with victims of sexual assault will take care of your case and collect the details of your case. For this, they do lot of investigation and work hard day and night to get the best evidence.

Importance of hiring an experienced:-

Are the person arrested due to sex crime which you did not commit? This is really a worse condition that society also blames you. So search for the right attorney who stands back of you to remove your hassle. An attorney should have a strong legal mind and good reputation in the community. He or she should be daring and confident enough to handle the toughest cases and not backing down.

Sex crimes are quiet complicated and thus an attorney should have extensive knowledge to smoothly win the case. Experienced lawyers have thorough understanding everything about criminal laws and jurisprudence. Also, provide you the peace of mind in specific criminal court cases. They are always for you recognize your difficulties and solve them easily. The highly skilled advocates have professional relationships with lawyers, judges, police officers, thus can carry out their services in a highly manner.

Experienced criminal lawyers provide you with extra legal support and advice in the case of severe penalty. They put their maximum efforts and work with you day and night to give you relief. As they are experienced with number of cases, they will have an idea about how to deal the case in a perfect manner.

About the Author: – Robert Pennington is an established sex crime attorney in New Jersey. He has been in this field since long time and tackles various types of criminal cases. Apart from his profession, he also likes to provide information upon several criminal cases such as crimes against children, DUI, sex crimes etc.

 Mark Perenich Clearwater Injury lawyer

The darkside of anti-inflamatory drugs

Mark Perenich products liability medical negligent lawyer.

Below is an article written by Tim Perenich, he is completing his final year of chiropractic education, and he wanted to share some information about NSAID’s Non-Steroidal Anti-Inflammatory Drugs.  I’m not a physician I do not suggest you discard medical advice, this is only a presentation on the opposing view of the discussion.   If you have a question about your medical treatment, please call your doctor.  If you believe that you or a loved one have been injured as a result of a drug, please contact me ASAP.

727-386-9677

 “Take Two and Call me in the Morning…?”

Doctor

It has almost become cliché in healthcare to treat all minor complaints and even some major ones with aspirin. Society is constantly bombarded with messages through the mainstream media and a pro-drug advertisements that aspirin is safe and effective. And while millions of people take aspirin and other variants like Ibuprophen, Advil, Naproxen etc—AKA Non-Steroidal Anti-Inflammatory Drugs (NSAID’s)—many of them don’t always end up with beneficial outcomes.

For over fifty-years physicians have known NSAID’s cause and exacerbate gastric ulcers (that is erosions or holes in the lining of your stomach and dueodenum).[i] Despite these hazards it is estimated that over 60 million Americans are prescribed NSAIDs per year. The Amercian College of Gasteoenterology reported over “100,000 Americans are hospitalized each year” due to “gasterointestinal bleeding from NSAID use” and approximately 16,500 of them will die.[ii]

However, these are just the statistics of NSAID complications from gastrointestinal bleeding. Some physicians estimate that over all deaths from NSAID complications are between 100,000 to 200,000 in the United States annually.[iii] One of the lesser-known but deadly complications of NSAID use is liver destruction. For example a 39 year old man reportedly taking ibuprophen (an NSAID) at high doses for a tooth ache destroyed his liver, had to be hospitalized, and was put on a waiting list for a liver transplant.[iv] NSAID toxicity can be compounded in the elderly population who are often put on a number of drugs and already have compromised liver function due to age. Another group of people at serious risk for liver damage is alcohol consumers. Taking an aspirin or NSAID following a night of drinking may cause irreversible life-threatening damage to the liver.[v] Alcohol and prescription drug use can deplete the liver of its naturally produced protective antioxidants and hinder its ability to detoxify the blood.

Aside from liver damage NSAIDs have also been implicated in damaging the kidneys, lungs, and the vascular system.[vi] Interestingly, a case leukocytoclastic vasculitis (inflammation of the small blood vessels) was reported right here in Largo, FL following usage of naproxen (another NSAID) resulting in multi-limb amputation for the patient.[vii] Apparently naproxen triggered the immune system to attack the small blood vessels of the body feeding muscles and nerves. This in turn caused damage to the distal limbs producing ischemia making them susceptible to gangrene. The medical staff did all they knew but could not save the limbs.

Though many people have little problem taking something as ubiquitous as Advil (an NSAID) never experiencing any terrible effects, this does not mean these  drugs are safe for everyone. Moreover, just because someone does not experience severe side effects does not mean they are precluded from having subclinical damage to their liver or GI tract. Part of the problem is conventional medicine often overstates the benefits of drugs while understating the risks. *The problem is compounded when patients do not know they have alternatives. *Moreover, many live a lifestyle which makes their condition worse (i.e. smoking, drinking, drug use, and obesity). *While no doctor can force a person to change their lifestyle, they can inform their patients to take control of their well-being. *Thus, the patient can become a wise healthcare consumer. So next time you are told to “take two…” you may think twice.

[i] Muir A, Cossar IA. Aspirin and Ulcer. British Medical Journal. 1955 July 2. 7 – 12.

[ii] American College of Gasteroenterology. Understanding Ulcers, NSAIDs & GI Bleeding. A Consumer Health Guide. (accessed June 9, 2013 at http://patients.gi.org/brochures/) 7

[iii] Prystupa A. NSAID-induced acute liver failure—A Case Report. Baltic Journal of Comparative & Clinical Systems Biology. 2012; 2: 31 – 37.

[iv] Ibid.

[v] Weathermon R, Crabb DW. Alcohol and Medication Interactions. Alcohol Research & Health.1999; 23 (1): 40 – 54.

[vi] Prystupa A. Baltic Journal of Comparative & Clinical Systems Biology. 2012; 2: 31 – 37.

[vii] Brown K, Martin J, Zito S. Severe leukocytoclastic vasculitis secondary to the use of naproxen and requiring amputation: as case report. Journal of Medical Case Reports. 2010; 4: 204.

 Personal injury lawyer clearwater Mark Perenich on drugs and injuries

 

Medical Malpractice, do I need a Dr’s OK to sue another Dr?

Clearwater Medical Malpractice Attorney

Yes, according to Florida Statute (malpractice statute) (F.S.) 766.106 (full text below) you must conduct a presuit investigation which requires an attorney to follow F.S. 766.203 as it states in pertinent part :

Corroboration of reasonable grounds to initiate medical negligence litigation shall be provided by the claimant’s submission of a verified written medical expert opinion from a medical expert as defined in s. 766.202(6), at the time the notice of intent to initiate litigation is mailed, which statement shall corroborate reasonable grounds to support the claim of medical negligence.

Doctor Clearwater

 

In order words a medical malpractice lawyer will need to consult another Doctor before they can initiate a lawsuit. This is one of many tort reforms Florida has instituted.  In fact, Florida is one of the leading states in medical malpractice reforms.  The legislature, however, still argues that medical malpractice cases are forcing Doctors to leave the state.  Such a statement is conjecture and completely unfounded.  I know many doctors, and they see no benefit to these laws, yet the legislature continues to spend your time and money for the benefit of insurance companies that want to receive malpractice premiums and don’t want to pay on honest claims.  Despite all these reforms, malpractice insurance continues to climb, and premiums in Florida, are not lower than states that do not have all the sweeping reform.

 If you have any questions about medical malpractice contact Mark Perenich today

766.203?Presuit investigation of medical negligence claims and defenses by prospective parties.—

(1)?APPLICATION OF PRESUIT INVESTIGATION.—Presuit investigation of medical negligence claims and defenses pursuant to this section and ss. 766.204-766.206 shall apply to all medical negligence claims and defenses. This shall include:

(a)?Rights of action under s. 768.19 and defenses thereto.
(b)?Rights of action involving the state or its agencies or subdivisions, or the officers, employees, or agents thereof, pursuant to s. 768.28 and defenses thereto.

(2)?PRESUIT INVESTIGATION BY CLAIMANT.—Prior to issuing notification of intent to initiate medical negligence litigation pursuant to s. 766.106, the claimant shall conduct an investigation to ascertain that there are reasonable grounds to believe that:

(a)?Any named defendant in the litigation was negligent in the care or treatment of the claimant; and
(b)?Such negligence resulted in injury to the claimant.

Corroboration of reasonable grounds to initiate medical negligence litigation shall be provided by the claimant’s submission of a verified written medical expert opinion from a medical expert as defined in s. 766.202(6), at the time the notice of intent to initiate litigation is mailed, which statement shall corroborate reasonable grounds to support the claim of medical negligence.

(3)?PRESUIT INVESTIGATION BY PROSPECTIVE DEFENDANT.—Prior to issuing its response to the claimant’s notice of intent to initiate litigation, during the time period for response authorized pursuant to s. 766.106, the prospective defendant or the defendant’s insurer or self-insurer shall conduct an investigation as provided in s. 766.106(3) to ascertain whether there are reasonable grounds to believe that:

(a)?The defendant was negligent in the care or treatment of the claimant; and
(b)?Such negligence resulted in injury to the claimant.

Corroboration of lack of reasonable grounds for medical negligence litigation shall be provided with any response rejecting the claim by the defendant’s submission of a verified written medical expert opinion from a medical expert as defined in s. 766.202(6), at the time the response rejecting the claim is mailed, which statement shall corroborate reasonable grounds for lack of negligent injury sufficient to support the response denying negligent injury.

(4)?PRESUIT MEDICAL EXPERT OPINION.—The medical expert opinions required by this section are subject to discovery. The opinions shall specify whether any previous opinion by the same medical expert has been disqualified and if so the name of the court and the case number in which the ruling was issued.
History.—s. 50, ch. 88-1; s. 26, ch. 88-277; s. 33, ch. 91-110; s. 113, ch. 92-33; s. 3, ch. 92-278; s. 60, ch. 2003-416; s. 154, ch. 2004-5.

 

766.106?Notice before filing action for medical negligence; presuit screening period; offers for admission of liability and for arbitration; informal discovery; review.—

(1)?DEFINITIONS.—As used in this section, the term:

(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.
(b)?“Self-insurer” means any self-insurer authorized under s. 627.357 or any uninsured prospective defendant.
(c)?“Insurer” includes the Joint Underwriting Association.

(2)?PRESUIT NOTICE.—

1(a)?After completion of presuit investigation pursuant to s. 766.203(2) and prior to filing a complaint for medical negligence, a claimant shall notify each prospective defendant by certified mail, return receipt requested, of intent to initiate litigation for medical negligence. Notice to each prospective defendant must include, if available, a list of all known health care providers seen by the claimant for the injuries complained of subsequent to the alleged act of negligence, all known health care providers during the 2-year period prior to the alleged act of negligence who treated or evaluated the claimant, copies of all of the medical records relied upon by the expert in signing the affidavit, and the executed authorization form provided in s. 766.1065.
(b)?Following the initiation of a suit alleging medical negligence with a court of competent jurisdiction, and service of the complaint upon a defendant, the claimant shall provide a copy of the complaint to the Department of Health and, if the complaint involves a facility licensed under chapter 395, the Agency for Health Care Administration. The requirement of providing the complaint to the Department of Health or the Agency for Health Care Administration does not impair the claimant’s legal rights or ability to seek relief for his or her claim. The Department of Health or the Agency for Health Care Administration shall review each incident that is the subject of the complaint and determine whether it involved conduct by a licensee which is potentially subject to disciplinary action, in which case, for a licensed health care practitioner, the provisions of s. 456.073 apply and, for a licensed facility, the provisions of part I of chapter 395 apply.

(3)?PRESUIT INVESTIGATION BY PROSPECTIVE DEFENDANT.—

(a)?No suit may be filed for a period of 90 days after notice is mailed to any prospective defendant. During the 90-day period, the prospective defendant or the defendant’s insurer or self-insurer shall conduct a review as provided in s. 766.203(3) to determine the liability of the defendant. Each insurer or self-insurer shall have a procedure for the prompt investigation, review, and evaluation of claims during the 90-day period. This procedure shall include one or more of the following:

1.?Internal review by a duly qualified claims adjuster;
2.?Creation of a panel comprised of an attorney knowledgeable in the prosecution or defense of medical negligence actions, a health care provider trained in the same or similar medical specialty as the prospective defendant, and a duly qualified claims adjuster;
3.?A contractual agreement with a state or local professional society of health care providers, which maintains a medical review committee;
4.?Any other similar procedure which fairly and promptly evaluates the pending claim.

Each insurer or self-insurer shall investigate the claim in good faith, and both the claimant and prospective defendant shall cooperate with the insurer in good faith. If the insurer requires, a claimant shall appear before a pretrial screening panel or before a medical review committee and shall submit to a physical examination, if required. Unreasonable failure of any party to comply with this section justifies dismissal of claims or defenses. There shall be no civil liability for participation in a pretrial screening procedure if done without intentional fraud.

(b)?At or before the end of the 90 days, the prospective defendant or the prospective defendant’s insurer or self-insurer shall provide the claimant with a response:

1.?Rejecting the claim;
2.?Making a settlement offer; or
3.?Making an offer to arbitrate in which liability is deemed admitted and arbitration will be held only on the issue of damages. This offer may be made contingent upon a limit of general damages.
(c)?The response shall be delivered to the claimant if not represented by counsel or to the claimant’s attorney, by certified mail, return receipt requested. Failure of the prospective defendant or insurer or self-insurer to reply to the notice within 90 days after receipt shall be deemed a final rejection of the claim for purposes of this section.

(d)?Within 30 days of receipt of a response by a prospective defendant, insurer, or self-insurer to a claimant represented by an attorney, the attorney shall advise the claimant in writing of the response, including:

1.?The exact nature of the response under paragraph (b).
2.?The exact terms of any settlement offer, or admission of liability and offer of arbitration on damages.
3.?The legal and financial consequences of acceptance or rejection of any settlement offer, or admission of liability, including the provisions of this section.
4.?An evaluation of the time and likelihood of ultimate success at trial on the merits of the claimant’s action.
5.?An estimation of the costs and attorney’s fees of proceeding through trial.
(4)?SERVICE OF PRESUIT NOTICE AND TOLLING.—The notice of intent to initiate litigation shall be served within the time limits set forth in s. 95.11. However, during the 90-day period, the statute of limitations is tolled as to all potential defendants. Upon stipulation by the parties, the 90-day period may be extended and the statute of limitations is tolled during any such extension. Upon receiving notice of termination of negotiations in an extended period, the claimant shall have 60 days or the remainder of the period of the statute of limitations, whichever is greater, within which to file suit.
1(5)?DISCOVERY AND ADMISSIBILITY.—A statement, discussion, written document, report, or other work product generated by the presuit screening process is not discoverable or admissible in any civil action for any purpose by the opposing party. All participants, including, but not limited to, physicians, investigators, witnesses, and employees or associates of the defendant, are immune from civil liability arising from participation in the presuit screening process. This subsection does not prevent a physician licensed under chapter 458 or chapter 459 or a dentist licensed under chapter 466 who submits a verified written expert medical opinion from being subject to denial of a license or disciplinary action under s. 458.331(1)(oo), s. 459.015(1)(qq), or s. 466.028(1)(ll).

(6)?INFORMAL DISCOVERY.—

(a)?Upon receipt by a prospective defendant of a notice of claim, the parties shall make discoverable information available without formal discovery. Failure to do so is grounds for dismissal of claims or defenses ultimately asserted.

1(b)?Informal discovery may be used by a party to obtain unsworn statements, the production of documents or things, and physical and mental examinations, as follows:

1.?Unsworn statements.—Any party may require other parties to appear for the taking of an unsworn statement. Such statements may be used only for the purpose of presuit screening and are not discoverable or admissible in any civil action for any purpose by any party. A party desiring to take the unsworn statement of any party must give reasonable notice in writing to all parties. The notice must state the time and place for taking the statement and the name and address of the party to be examined. Unless otherwise impractical, the examination of any party must be done at the same time by all other parties. Any party may be represented by counsel at the taking of an unsworn statement. An unsworn statement may be recorded electronically, stenographically, or on videotape. The taking of unsworn statements is subject to the provisions of the Florida Rules of Civil Procedure and may be terminated for abuses.
2.?Documents or things.—Any party may request discovery of documents or things. The documents or things must be produced, at the expense of the requesting party, within 20 days after the date of receipt of the request. A party is required to produce discoverable documents or things within that party’s possession or control. Medical records shall be produced as provided in s. 766.204.
3.?Physical and mental examinations.—A prospective defendant may require an injured claimant to appear for examination by an appropriate health care provider. The prospective defendant shall give reasonable notice in writing to all parties as to the time and place for examination. Unless otherwise impractical, a claimant is required to submit to only one examination on behalf of all potential defendants. The practicality of a single examination must be determined by the nature of the claimant’s condition, as it relates to the liability of each prospective defendant. Such examination report is available to the parties and their attorneys upon payment of the reasonable cost of reproduction and may be used only for the purpose of presuit screening. Otherwise, such examination report is confidential and exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I of the State Constitution.
4.?Written questions.—Any party may request answers to written questions, the number of which may not exceed 30, including subparts. A response must be made within 20 days after receipt of the questions.
5.?Unsworn statements of treating health care providers.—A prospective defendant or his or her legal representative may also take unsworn statements of the claimant’s treating health care providers. The statements must be limited to those areas that are potentially relevant to the claim of personal injury or wrongful death. Subject to the procedural requirements of subparagraph 1., a prospective defendant may take unsworn statements from a claimant’s treating physicians. Reasonable notice and opportunity to be heard must be given to the claimant or the claimant’s legal representative before taking unsworn statements. The claimant or claimant’s legal representative has the right to attend the taking of such unsworn statements.
(c)?Each request for and notice concerning informal presuit discovery pursuant to this section must be in writing, and a copy thereof must be sent to all parties. Such a request or notice must bear a certificate of service identifying the name and address of the person to whom the request or notice is served, the date of the request or notice, and the manner of service thereof.
(d)?Copies of any documents produced in response to the request of any party must be served upon all other parties. The party serving the documents or his or her attorney shall identify, in a notice accompanying the documents, the name and address of the parties to whom the documents were served, the date of service, the manner of service, and the identity of the document served.
(7)?SANCTIONS.—Failure to cooperate on the part of any party during the presuit investigation may be grounds to strike any claim made, or defense raised, by such party in suit.
History.—s. 14, ch. 85-175; s. 9, ch. 86-287; s. 3, ch. 88-173; s. 48, ch. 88-277; s. 245, ch. 94-218; s. 1, ch. 94-258; s. 424, ch. 96-406; s. 1800, ch. 97-102; s. 164, ch. 98-166; s. 225, ch. 2000-160; s. 166, ch. 2000-318; s. 1, ch. 2000-341; s. 49, ch. 2003-416; s. 11, ch. 2011-233.
1Note.—Section 16, ch. 2011-233, provides that “[t]his act shall take effect October 1, 2011, and applies to causes of action accruing on or after that date.”
Note.—Former s. 768.57.

Perenich Medical malpractice lawyers

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