As the holidays come to an end, please make sure that you drive carefully!  Lots of travelers have opted to drive rather than fly this year so there are many more cars on the road.  A deadly crash early this morning shut down the northbound lanes of I-95 at Malabar Road in Brevard County for several hours.  On person was killed in the four-car crash near Palm Bay and as many as ten people were treated at the scene and seven were taken to area hospitals.  The Florida Highway Patrol believed it was due to the holiday traffic as several vehicles had out-of-state tags.  Please use caution when driving!

Merry Christmas from all of us at the Kane Law Firm!

Meghan Kane

Tom Kane

Rayna Peters

1. Accidental poisonings. Holiday decorations can include poinsettias, mistletoe, and oils and products meant to smell like cranberries or gingerbread. These new items can prove to be very tempting for young children, especially when these products are scented. Pets can also be in danger of ingesting these potentially harmful products. Where possible, keep such items well out of reach and supervise children and pets closely.
2. Burn injuries. When families are busy and candles are left burning to bring holiday cheer to a home, fires can accidentally start. Children may also get to close to the flame and burn themselves. Additionally, fireplaces are often lit at this time of year, creating additional risks. Keep candles and fireplaces monitored at all times. Additional electrical use - in the form of outdoor decorations and indoor lights - can also pose fire hazards. Old-fashioned electric lights can overheat and can cause burn injuries and fires. Before decorating for the holidays, look over your lights and electric decorations. If you see signs of wear, replace your lights. Consider switching to LED lights, which stay cooler and therefore pose a smaller risk of fire. Also, avoid using excessive electrical products in one outlet can help prevent electricity fires.
3. Car accidents. Extra stress and rushing during the holidays can mean more mistakes behind the wheel and therefore more car accidents. Holiday parties and festive drinks can also lead to more drunk driving accidents at this time of year. To stay safe, make sure that your car is in good condition and practice defensive driving. Have a holiday plan for getting home safely if you attend a party where alcohol is served.
4. Pedestrian accidents. With more shopper running in and out of stores during this time of year, pedestrian accidents are more of a risk, especially in parking lots, where hurried shoppers and hurried drivers both share the same space. Both drivers and pedestrians have a duty to prevent accidents. If you drive, keep alert for extra shoppers walking around at this time of year. When you are shopping, take extra care to watch for drivers and ensure that drivers can see you at all times.
5. Slip and fall accidents. Thoroughly search your house before the holiday begin. Are there broken gates or lights that pose a danger? Is there a leaking gutter that is causing a pool of water to form on a walkway? Identify possible dangers and have them fixed promptly. Additional rain and wet leaves at this time of year can lead to slip and fall injuries, which can mean broken bones, twisted ankles, and even head injuries. Keep the area around your property and business clear of debris and any possible dangers - such as puddles. When out walking, wear sturdy shoes that offer good traction. Indoors, food preparation and some decorative items can cause spills. If these are not cleaned up right away, they can lead to slips and injuries. Poor lighting contributes to many slip and fall accidents. Install motion-detector lights or bright lights along walkways to help visitors reach your home safely.
6. If you are leaving for the holidays, secure your home well and hire someone to check in periodically. Even if you are away, you may be responsible for keeping your outside areas safe. If a child wanders into your backyard due to a faulty gate, for example, and falls into your pool, you may be held liable, even if you are not at home at the time of the incident.
7. Head injuries. Head injuries are quite common at this time of year. Many people take part in winter activities, such as skiing and skating, which can increase the chances of head injuries. As well, some accidents are more common at this time of year - such as pedestrian accidents, car accidents, and slip and fall accidents - which can also increase the chances for head injuries. No matter what your holiday plans, keep safety rules in mind. If you do fall or bump your head, remember to get the injury checked by a physician to ensure that a head injury does not ruin your holidays.
8. Accidental cuts and bruises. Broken holiday ornaments, sharp edges on toys and on decorations can cause cuts and other injuries. In households with children, it is a good idea to keep decorations high, away from children.
9. Injuries caused by defective products. Not all toys and products sold during the holiday season are safe to use. At this time of year, when most of us get several new items in our home, it is a good idea to remain alert to product recalls and to remove recalled products from the home at once.
10. Children at Holiday events. Supervise children near vendors and refreshment stands. Hot elements and hot drinks can mean burn injuries for small hands. Do not let your child wander too close to the floats or entertainers. Items may accidentally drop from floats or entertainers with costumes may not notice your child and bump into them. Hold your child’s hand at all times so they do not wander away. If you have a small child, keep in mind that others may not notice your child and may inadvertently bump into him or her. Carry small children and look for areas that are not as crowded. Teach small children how to find a police man in case they become separated from you. Have a plan in case you get separated from your group. Older children can be taught to meet you at a pre-selected place. Younger children can be taught your cell phone number and how to find a police officer in the crowd. Make sure your child washes their hands before eating and after returning home from the parade. Crowds may have ill people in them and smaller children may end up touching items on the crowd. This season, with concerns about the H1N1 flu, it is a good idea to encourage children to wash hands frequently. Bring a small packet of hand sanitizer so that you can wash hands before eating parade treats.

As everyone in Washton is debating health care reform, I wanted to take a few minutes to debunk some common myths about medical negligence as set forth by the American Association for Justice (AAJ)…

Myth #1: There are too many “frivolous” malpractice lawsuits.

Fact: There’s an epidemic of medical negligence, not lawsuits.  Only one in eight people injured by medical negligence ever file suit.  Civil filings have declined eight percent over the last decade, and are less than one percent of the whole civil docket.  A 2006 Harvard study found that 97 percent of claims were meritorious, stating, “portraits of a malpractice system that is stricken with frivolous litigation are overblown.”

Myth #2: Malpractice claims drive up health care costs.

Fact: According to the National Association of Insurance Commissioners, the total spent defending claims and compensating victims of medical negligence was just 0.3% of health care costs, and the Congressional Budget Office and Government Accountability Office have made similar findings.

Myth #3: Doctors are fleeing.

Fact: Then where are they going?  According to the American Medical Association’s own data, the number of practicing physicians in the United States has been growing steadily for decades. Not only are there more doctors, but the number of doctors is increasing faster than population growth.  Despite the cries of physicians fleeing multiple states, the number of physicians increased in every state, and only four states saw growth slower than population growth; these four states all have medical malpractice caps.

Myth #4: Malpractice claims drive up doctors’ premiums.

Fact: Empirical research has found that there is little correlation between malpractice payouts and malpractice premiums paid by doctors. A study of the leading medical malpractice insurance companies’ financial statements by former Missouri Insurance Commissioner Jay Angoff found that these insurers artificially raised doctors’ premiums and misled the public about the nature of medical negligence claims.  A previous AAJ report on malpractice insurers found they had earnings higher than 99% of Fortune 500 companies.

Myth #5: Tort reform will lower insurance rates.

Fact:  Tort reforms are passed under the guise that they will lower physicians’ liability premiums. This does not happen. While insurers do pay out less money when damages awards are capped, they do not pass the savings along to doctors by lowering premiums. Even the most ardent tort reformers have been caught stating that tort reform will have no effect on insurance rates.

“All the facts and evidence show that tort law changes will do practically nothing to lower costs or cover the uninsured,” said AAJ President Anthony Tarricone.  “It’s no wonder the tort reformers, insurance lobby, and other corporate front groups have to gin up lies and phony stats, since no legitimate data or research supports their claims.  Our focus should be on reducing the 98,000 deaths by medical error that occurs every year, not limiting patients’ legal rights.”  The full American Association for Justice report can be read here.

Florida’s police take aggressive measures to search for and arrest anyone found driving while impaired.  In 2008, there were over 22,000 alcohol-related Florida car accidents resulting in over 1,100 traffic deaths, and over 15,700 injuries. Drunk driving continues to be one of the more common causes of accidents - it doesn’t help that binge drinking continues to be a habit on the rise.

Over the weekend, a driver was hospitalized after he crashed into three cars, a mailbox, a light pole, a palm tree, and barely missed the front porch of a home in the Quail Trail neighborhood off Goldenrod Road and Pershing Avenue.  The man is on life support at an area hospital, and will likely be charged with a DUI.  Nobody is immune to this type of lawsuit.  NFL Cleveland Browns Football wide receiver Donte Stallworth struck and killed a pedestrian while intoxicated.  Even more recently, Florida’s Carlos Dunlap was arrested for passing out behind the wheel on a street near campus and was suspended from playing for UF in the SEC Championship game.

The consequences of drunk driving can be devastating both personally and financially.  Recently, a Central Florida man was killed when his motorcycle was hit by a drunk driver.  The impaired driver who lost control of his vehicle was convicted of DUI manslaughter, and is currently serving a 15 year sentence.  The widow of the motorcycle driver was awarded $3 million dollars.

According to NHTSA, there are approximately 3,000 drunken-driving deaths in the state of Florida each year.  Overall, there are approximately 40,000 people killed in crashes in which a driver had a blood alcohol concentration of 0.08, the legal limit in the United States, or higher levels. 

Please drive responsibly.

If you plan to drink, ask a friend to drive you home, or call a cab before risking your life and the life of others. 

Don’t drive intoxicated or under the influence of any substance that impairs your ability to stay safe.

The most common lawsuit at Orlando’s theme parks is a simple slip and fall. The Orlando Sentinel published a review on March 30, 2009 of the 477 state and federal lawsuits filed against the region’s three big theme-park companies between Jan. 1, 2004, and Dec. 31, 2008, found that 218 cases — 46 percent — involved people who said they had slipped or tripped and fallen during a visit to Walt Disney World, Universal Orlando or a Busch Entertainment Corp. theme park or resort. Rides or attractions — the heart of the theme-park business — accounted for 101 of the cases. The other 158 lawsuits involved a variety of accidents in shops, during shows or on streets or sidewalks.

Here is a look at the full searchable database of lawsuits.

The parks may attract more than their share of frivolous lawsuits, one expert says, because they create a fantasy world where expectations of comfort and safety run high. The suits offer a variety of complaints:

• A man from Virginia sued Disney World in 2005, saying food poisoning caused him to gag so badly he ruptured his esophagus.
• A Titusville woman sued SeaWorld in 2005, saying she fell and was injured when the Clydesdale parade horses spooked and charged the crowd.
• A woman from Hawaii sued Busch Gardens-Tampa Bay in 2006, saying she contracted a rare blood disease when a wayward vulture from a trained-bird show clawed her legs.
• An Orlando man sued Universal in 2006, saying he was roughed up and injured when security guards threw him out of a bar at CityWalk.

Theme parks have been described as “little cities” where non-normal things happen on a regular basis like people being thrown in the air on roller coasters, or pyrotechnics. Lyrissa C. Barnett Lidsky, a University of Florida law professor has said, “It is hard to imagine another business that has such a wide array of activities that create a potential for tort liability.” However, considering the number of guests who pass through each park each day, there are surprisingly few lawsuits. The Sentinel’s lawsuit review also found that:

• Few of those who sue a theme park rush into it. Three-fourths of the plaintiffs claiming injuries since the start of 2004 waited more than a year before filing a lawsuit. Almost one in every five waited until just before the Florida statute of limitations expired — four years. Many people spend years trying to negotiate their injury claim to get their medical bills paid before suing. Typically, Plaintiff’s are from out of state; they come down here, they get injured,  — their vacations are ruined – and they want to be compensated.
• Once sued, a theme park rarely backs down quickly. More than two-thirds of the cases filed against a theme park since the beginning of 2004 remained active in court for at least a year. Some cases from 2004 were still active at the start of 2009.
• Most lawsuits are settled out of court. Of the 477 cases, 117 were still pending as of March 15. Of the 360 cases filed since the start of 2004 that have been resolved, only seven went to trial and reached a jury verdict — and the theme parks won all seven. Two-thirds of the rest were either settled officially or concluded with private agreements that stop short of using the word “settlement.” Another 27 percent were dismissed by a judge with no indication of a deal.
• Most settlements are secret. Of the 246 cases filed since 2004 that have already ended in some sort of agreement, only six reported dollar amounts: three with Universal, two with Disney and one with Busch Entertainment. Those deals ranged from a low of $4,300 — offered to the family of a boy injured on Doctor Doom’s Fear Fall in Universal’s Islands of Adventure — to a high of $145,000 — offered to the family of a toddler run over by a taxicab at a Disney hotel.
• Plaintiffs who lose sometimes end up footing the theme parks’ legal bills. The theme-park companies can, and do, go after unsuccessful plaintiffs, seeking reimbursement for their legal expenses. Under Florida law, anyone who sues anyone else over a personal injury faces this possibility. If the defendant offers a settlement, but the plaintiff rejects it and then loses the case (or, in some circumstances, even if the plaintiff wins the case), the defendant can demand the plaintiff pay the defendant’s legal bills.

What happens if you sue a Theme Park?  Only a tiny percentage of personal-injury lawsuits in the U.S. ever go to trial. In the 101 ride or attraction-related suits filed against Disney, Universal or Busch Entertainment in state or federal court, none has reached a jury. Twenty-three of the suits are still pending, but the other 78 — including some that claim rides caused strokes, heart attacks, spinal injuries or, in two cases, a person’s death — were either settled out of court or dismissed by a judge. As is typical in personal-injury cases, many of the theme park-case dismissals, and nearly all of the settlement agreements, were then sealed from public view; the only three exceptions involved small settlements, worth $25,000 or less each.

Injuries reported: Florida law exempts theme parks from the state inspections and mandatory reporting required of carnivals and small amusement parks. In 2000, the big parks signed a “memorandum of understanding” with the state in which they volunteered to start providing certain ride-injury information to the Florida Department of Agriculture and Consumer Service’s Bureau of Fair Rides Inspection. This gave Florida one of the country’s best injury-reporting system. California, the only other state with several large theme parks, has stricter reporting requirements, but they don’t necessarily generate better data. Yet, the Florida system requires theme parks to disclose only injuries that involve a person’s death or an immediate hospital stay that exceeds 24 hours “for purposes other than medical observation.” As a result, only nine of the 101 ride-related lawsuits found in the Sentinel’s review of 2004-08 court cases were reported to the state as accidents when they occurred, even though at least a few of the 92 other cases include allegations of serious harm.

Access difficult: Most theme park guests who get injured do not sue. However, they do report their injuries at a theme-park first-aid station, or later from home. Theme park lawyers have blocked requests to see their injury-claim records, arguing that the company maintains such information in anticipation of lawsuits and so the documents are protected by the legal principle of attorney-client privilege.

Basic safety claims: Some cases are not ride-related lawsuits in that they do not blame the injuries on accidents, equipment failures or operational errors. Instead, they allege that the very nature of the attraction caused people serious harm. The Sentinel’s review of lawsuits found 24 cases with this allegation among the 101 ride-related suits filed from Jan. 1, 2004, through Dec. 31, 2008. All of the theme parks challenge any suggestion that their rides could be inherently unsafe. The rides all are designed to international safety standards, and all three companies have some of the top ride-safety experts in the country on their staffs. The parks blame the problems on riders who behave recklessly or fail to heed conspicuous warnings even though they have risky, pre-existing medical conditions. Central Florida’s theme parks have the clearest and most comprehensive ride warnings, often involving signs plus audio and video recordings.

Many of you have been attempting to brave the early morning fog.  Thankfully, it has not been as bad as early January of 2008 when a dense smoke from a brush fire and early morning fog created what is referred to as “superfog” - a killer combination of thick smoke and dense fog that forms under certain conditions.  This superfog created zero visibility on Interstate 4 near Lakeland resulting in the horrific 70-vehicle smashup in Polk County that killed five people and injured 38 others and shut down nearly 15 miles of I-4 between Tampa and Orlando.Superfog forms overnight, when humidity is at its highest, as dense smoke captures air moisture and quickly condenses into a ground-level cloud that flows across the landscape, blinding everything in its path.

The unusual weather anomaly is now the subject of intense study because of its threat to motorists, especially in Florida, given the state’s frequent controlled burns, high humidity and heavily traveled roadways through swaths of wildlands.

Eight accidents, including the 2008 pileup, involving superfog conditions on major Florida highways have killed 18 motorists, injured 81 others and wrecked about 110 vehicles since 1996, state climate reports show.

Safe Driving Tips:

• Drive with lights on low beam. High beams will only be reflected back off the soke and actually impair visibility even more.
• Slow down - before you enter smoke.
• Watch out for slow-moving vehicles and parked vehicles.
• Reduce distractions in your vehicle. Turn off radio and cell phone.
• Use wipers and defrosters liberally for maximum visibility. Sometimes it is hard to tell whether poor visibility is because of smoke or moisture on the windshield, especially in the early-morning hours.
• Use right edge of road or painted road markings as a guide
• Be patient. Avoid passing and/or changing lanes.
• Signal turns well in advance, brake early as you approach a stop.
• Roll your windows up. Use your air conditioner on the recirculation mode to avoid outside air.
• Do not stop on a freeway or heavily traveled road.

As a personal injury attorney who deals with car accident victims on a daily basis (and drives much more carefully because of that fact!) it was shocking to me to find out that lawyers and doctors have the highest rates of car crashes of any occupation.The article points to fatigue; however, I think that multi-tasking by talking on cell phones, using blackberries, or just the sheer the number of hours on the road traveling to meet clients or be in court contribute as well!

For doctors, the accident rate is 109 accidents per 1,000 drivers; and, for lawyers it is 106 accidents per 1,000 drivers, the Journal News reports. The rate of speeding tickets for doctors is 44 tickets per 1,000 drivers, and for lawyers it is 37 speeding tickets per 1,000 drivers.  Their accident rate is lower than that of students, however, according to the Quality Planning Corp., which compiled the figures. Students have 152 accidents and 87 speeding tickets per 1,000 drivers.

Robert Sinclair, spokesman for AAA New York, told the Journal News that the reason for the high rate of accidents may be fatigue. “These are professions that put in lots and lots of hours,” he said. “Often fatigued driving can be a greater impingement on skills and abilities than alcohol.”

After doctors and lawyers, architects were the next most likely to have an accident. Also in the top 10 were real estate agents, enlisted military personnel, social workers, manual laborers, analysts, engineers and consultants, the story says.  Farmers had the lowest rate of accidents, followed by firefighters and pilots.

Regardless of your profession:  Please Drive Safely!

Interesting Good Morning America TV clip of one man who lost his insurance benefits after being recorded on video surveillance.

This is not uncommon for the insurance company to hire an investigator to follow and videotape individuals involved in a lawsuit.  The surveillance videos may show you working in your yard, shopping, or engaging in sports activities - these videos can later be shown to a jury to refute that your injuries are as limiting as you have stated.  In a lawsuit, be completely honest about your injuries and physical limitations.  Do not hesitate to do all that you can under your doctor’s advice; however, do not do more than your doctor advises.