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Civil Litigation Questions

What is a personal injury claim?
A person who has been injured through another person’s negligence, or failure to use ordinary care, has a right to sue for damages for his or her loss. Personal injury is a catch all term for a wide variety of civil litigation law, including premises liability, product liability and general negligence.

What is a wrongful death claim?
A wrongful death claim is a claim filed by the survivors of someone who has died because of someone else’s negligence.

Who has the right to bring a wrongful death claim?
Generally, parents, spouses and children are eligible to file a claim as defined by Florida statute, although minors may need an adult guardian to bring a lawsuit. In some cases, other family members or legal dependents may also have the right to file a wrongful death claim.

Can I receive compensation for my emotional distress following the wrongful death of a relative?
Unfortunately, the law in Florida does not permit a person to recover for the emotional injury suffered from the death of a loved one, except in special situations in which a family member witnesses the serious injury or death of a loved one. In such cases, the family member who was within the "zone of danger" at the time of the accident may be able to recover damages for emotional distress. There can, however, be recovery for the pain and suffering the deceased endured before his or her death, as well as damages for economic loss. Recovery for "economic" losses is not limited to lost earnings. For example, loss of parental guidance and other services that had been provided by the decedent have an "economic" value that is compensable.

I was injured on someone else’s property. Is there anything I can do?
Property owners, including governmental entities such as the city and state, are responsible for injuries that occur as a result of a dangerous or hazardous condition on their property, which the owner either knew about or should have known about. The hazard may be obvious (such as ice on steps) or hidden (such as a hole in a lawn that is partially covered by grass). In some instances it may not be apparent, as in flooring that appears normal but is slippery. The dangerous condition could be permanent, such as broken concrete with a change in elevation, or temporary, such as a liquid spill in a supermarket aisle.

In certain cases, a property owner has been held liable for inadequate security where a person has been injured or killed by a criminal act on the property. In general, an owner will be considered to have knowledge of a dangerous or hazardous condition if it is permanent in nature, because the owner knew, or should have known, about the condition before the incident occurs.

In the case of temporary conditions (like a liquid spill), the length of time that the condition existed before the incident occurred has legal significance. If the spill occurred just before the incident, then the property owner may not be liable for injury, because the owner could not have known about the spill (and would not have been able to do anything about it) before the injury occurred. If, however, the spill was present for some period of time before the incident, or occurred in an area subject to liquid spills, or is a recurring event in the area, then the owner may be liable, even if the owner did not know about the spill before it occurred.

What defenses can I expect will be raised against my claim of injury on someone else's property?
One of the most common defenses is to deny the existence of any dangerous condition on the premises or to deny having timely knowledge of its existence. For example, a defendant may argue as follows: There was no liquid on the floor in aisle five, and even if there were liquid on the floor, we did not know about it in time to take any action. Or the defendant may argue that the floor is specially designed to be slip resistant, even when wet. Another common defense is to argue that you were careless or negligent in failing to observe the dangerous condition (the spill, the loose carpet, the step down, for example) and as a result, should either have all compensation denied or substantially reduced.

What is product liability?
Product liability is a legal term that holds the seller of a defective product responsible for any injury that results to a buyer, user, or in some cases, an innocent bystander. Defendants in product liability cases may include manufacturers, distributors, and retailers.

How do I know if a product is defective?
Sometimes, common sense will tell you that a product has failed to perform because of a defect, but more often than not, you won’t know. Product liability is a highly technical area of the law, and cases virtually always require the input and advice of experts. Under Florida law, there are three different types of product liability cases: manufacturing defects, design defects and duty to warn. Manufacturing defects typically result from some mistake in the manufacturing process, improper workmanship or the use of defective materials. Design defects occur when a product shares a design feature that is defective and unreasonably dangerous. Along with its responsibility to design and construct safe products, a manufacturer also has a duty to warn consumers of unsafe or dangerous features of its products.

What if I no longer have the equipment or device? Do I still have a case?
Yes. Although preserving the product in the same condition it was in at the time of the injury is important, not having the product does not necessarily prevent you from making a claim.

What if the equipment or device belongs to my employer or a friend?
It is very important that you contact an attorney as soon as possible, so he or she can inform whomever has possession of the product not to alter or destroy it.

What is medical malpractice?
Medical malpractice is negligence committed by a professional health care provider - a doctor, nurse, dentist, hospital or hospital worker - whose performance fails to meet the standard of care expected of those with similar training and experience, resulting in harm to a patient. The profession itself sets the standard for malpractice by its own custom and practice.

Do I need a lawyer to pursue a medical malpractice case?
Yes. Medical malpractice cases are very complex and difficult to pursue, and can be quite expensive to litigate. Our firm will obtain all of the proper medical records, laboratory results, pathology reports and all other data resulting from testing that may be relevant to your case.

What sort of damages can be recovered from a medical malpractice lawsuit?
Medical expenses for treating the injuries caused by the malpractice; damages for pain and suffering; disfigurement and disability damages; lost wages and ability to earn wages in the future. In certain circumstances, spouses, children and parents of negligently injured people may recover damages for the loss of the love, care, affection, companionship and other pleasures of the family relationship lost due to malpractice.

Who will receive money after a successful lawsuit for a birth injury?
If a living child suffers harm due to an avoidable birth injury, damages awarded as part of a successful lawsuit will typically go to the child, sometimes in the form of a legal trust.

What if my insurance company or Medicare/Medicaid paid for the treatment that I believe was malpractice - can I make a claim even though no money came from my pocket?
Absolutely. It makes no difference who paid for the medical expenses. Health care providers are required by law to render care and treatment based on the acceptable standard of care.

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The Barry A. Cohen Law Group
Fifth Third Center 201 East Kennedy Blvd.
Suite 1950 Tampa, FL 33602