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Early this morning, a female resident of a Jacksonville nursing home died after falling from her bed.  The incident occurred at the Woodland Grove Health and Rehabilitation Center near Belfort Road on Jacksonville’s Southside.  The Jacksonville Sheriff’s Office is investigating the incident as an accident.  Florida’s Agency of Healthcare Administration will also investigate the matter.

The Centers for Medicare and Medicaid Services ranks all nursing homes that accept payment from Medicare on a scale of one to five stars.  Overall, Woodland Grove Health and Rehabilitation Center scores three out of five stars and scores a two out of five with respect to health inspections.   It is a 120 bed facility owned, in part, by Greystone Healthcare Holdings, which has 26 nursing homes in Florida, with one in Jacksonville, one in Fleming Island (Orange Park), two in Daytona Beach and one in Starke.

Falls are one of the leading causes of injury and death of nursing home residents.  According to the Centers for Disease Control and Prevention, a typical nursing home with 100 beds will report between 100 and 200 falls per year.  In addition, falls are often not reported.  Between 50% to 75% of nursing home residents will experience a fall each year.  Roughly 35% of falls in nursing homes involve residents who cannot walk.

Not only are falls common, the consequences can be catastrophic.  Annually, approximately 1,800 people die as a result of a fall in a nursing home.  Falls also cause serious life-changing injuries including arm, leg and hip fractures.  The immobility that results from such a fracture can lead to functional decline that greatly shortens a person’s lifespan and diminishes his or her quality of life.

Falls in nursing homes have a host of causes including muscle weakness, cognitive problems, changes in medication, wet floors, a nursing home’s failure to provide assistance when transferring from a bed to a wheelchair or toilet, incorrect bed height and improper or missing assistive devices.

There are many ways that nursing homes can reduce the risk of falls.  First and foremost, each resident must be screened for their fall risk.  Residents with an increased fall risk require care plans that put in place appropriate safeguards.  Some residents will require a one person or two person assistance with transfers to and from the bed and toilet.  Others require assistive devices when moving around such as a cane, walker or wheelchair.

The facility itself must also be scrutinized to make sure that hand rails are in place in bathrooms, floors are level and clean and that call buttons work.  Socks, slippers and shoes should have non-slip surfaces.  Beds should be lowered for persons will a high fall risk and cushioned mats should be placed around the bed to minimize any injury that may occur.  Bed rails or anti-roll cushions should be used for persons at risk for falling out of bed.  Residents should be educated regarding common scenarios that lead to falls and how to avoid them.  Finally, the residents should receive physical therapy and nutrition sufficient to keep them as strong and able as possible.
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A video of a resident on resident beating that lasted for over two minutes finally culminated in the state shutting down a beleaguered assisted living facility in Williston, Florida.  Williston is located about 20 miles southwest of Gainesville. The video shows an 86 year old man being punched more than 50 times by a 52 year old resident.  The 86 year old suffers from dementia.  The 52 year old has a history of mental illness and aggression.  During the beating, there were no staff members present in the common area where the incident occurred.  Furthermore, no one was assigned to monitor the surveillance camera that captured the incident.

Florida’s Agency for Heathcare Administration (“AHCA”), which regulates both nursing homes and assisted living facilities, sanctioned the Good Samaritan Retirement Home 17 times over the last 5 years and fined it in excess of $70,000.00.  Despite these measures, the assisted living facility remained in business.

One month after the beating, a female resident fell in the parking lot and was neither taken to the hospital nor provided any medical treatment.  Later that night, the woman was found non-responsive and blood-soaked.  She later died at the hospital.  After that incident, AHCA put in place a moratorium preventing the assisted living facility from accepting new residents; however, it was allowed to continue to operate with the residents already living there.

Two weeks later, another incident occurred which resulted in the arrest of an administrator at the assisted living facility. On December 7, one of the residents had a medical procedure and had to be closely monitored to watch for changes in condition.  Over the next few days, staff reported to the administrator that the resident had deteriorated; however, the administrator took no responsive action.  He was charged with neglect of the elderly.

Citing additional concerns and medication errors, AHCA finally shut down the facility effective December 23, seven weeks after the videotaped two minute beating occurred.  Residents and their families are understandably frustrated by the lack of a more timely response by the state.

The bottom line here is that you cannot rely on the state to vet a nursing home or assisted living facility for you.  If you or a loved one is in need of assisted living or a nursing home, it pays to do your own homework.  As a starter, for nursing homes, we recommend you review the five star rating system created by the Centers for Medicare and Medicaid Services.  Next, you should visit the nursing home or assisted living facility.  While there, you should do your best to observe whether: the facility is clean; whether the facility has an unpleasant odor; whether there are common areas that meet your needs; and whether the staff is qualified to meet your healthcare requirements.  Continue reading

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Recently, shocking video footage was captured at a South Florida nursing home showing a certified nursing assistant striking a resident, pouring mouthwash on him, pushing him and handling him very roughly.  The resident was ninety four years old and suffered from dementia.  The CNA involved claimed she knew nothing of the allegations – until the video surfaced.  Apparently, the resident’s family members were suspicious that he was being mistreated and hid the camera in his room.  Without the camera footage, the abuse would probably never have been proven.

It is common that family members of nursing home residents call us to express a concern that a resident is being abused or mistreated.  Without obvious signs of injury, abuse can be very hard to prove as some residents with dementia may be confused to the point of equating normal movement required for bathing and dressing as abuse.  With advances in technology, it is now economically possible for most people to purchase small video cameras that can be concealed in a room.  Consequently, we have seen a rise in hidden surveillance footage and it is certainly going to continue to increase.

Of course, the use of hidden surveillance cameras also raises ethical concerns.  While a resident certainly has the ability to use such a camera, when the camera is placed by a family member, what if the resident lacks the mental capacity to consent to being filmed?  Nothing in standard power of attorney or health care surrogacy documents addresses this issue.  We support the ethical use of surveillance cameras as one of many tools that can be used in an effort to ensure a resident is receiving safe and respectful care.

Some states have enacted legislation specifically allowing nursing home residents to install cameras, which means that a nursing home cannot remove, or refuse to admit, a resident on this basis.  Most states; however, have no laws addressing the issue.  Florida does not have such a law.  A nursing home industry group, the American Health Care Association, has fought legislation allowing for cameras as it claims that people placing the cameras are more interested in gathering evidence for a lawsuit than in protecting the resident.  They also claim that, with cameras in place, it will be more difficult to hire and keep qualified caregivers.

Our Jacksonville law firm focuses on nursing home neglect and abuse cases.  If you suspect nursing home abuse, we provide free no obligation consultations.  Often, we help guide family members dealing with the issue of whether to leave a resident in his or her current nursing home.  We frequently recommend that the family request a care plan meeting to be attended by the resident’s doctor, the nursing home’s director of nursing and the resident’s nurse unit manager.  When abuse, neglect or mistreatment is more certain, we recommend the resident be moved to a nursing home with strong ratings and we recommend the resident or the resident’s family members contact Florida’s Department of Children and Families abuse hotline at 1-800-96-ABUSE.  Nursing home ratings are published by the Centers for Medicare and Medicaid Services and can be found here.

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Yesterday, the Florida Supreme Court affirmed Florida’s longstanding legal principle that an insurer may have to pay as much as 2.5 times the usual attorney fee when a homeowner has to sue his or her own insurance company and wins.  The basis for this rule, called a “multiplier,” and its effect on homeowner’s claims is especially timely given the recency of Hurricane Matthew and Hurricane Irma.

The case involved a St. Augustine couple who suffered water damage to their home and presented a claim against their homeowner’s insurer, Federated National Insurance Company.  The insurance company denied their claim based on its position that the homeowners failed to accurately list prior claims when they completed the application for insurance.  The homeowners retained an attorney on a contingency basis, meaning that the attorney agreed she would only get paid if she was successful.

After litigating the case for months, it was determined that the disputed prior claims were disclosed by the homeowners to Federated National, and, as a result, it agreed to pay the claim.  The homeowners’ attorney was to be paid a reasonable fee to be determined by the St. Augustine court pursuant to Florida Statute 427.428.  The judge determined that the attorney’s time at a customary hourly rate came to $38,150.00.  Then, the judge applied a “multiplier” of 2 and thus, doubled the fee to $76,300.00.  The insurance company appealed.

The use of fee multipliers in contingency cases has been part of Florida jurisprudence for decades.  The rationale for awarding a multiplier is to encourage attorneys to accept these types of cases on a contingency basis which provides access to the courts for people who cannot afford to hire an attorney.

From the attorney’s perspective, taking these cases on a contingency basis involves a big risk of time and money.  The attorney is not going to win every case.  As such, if the attorney is awarded only a normal hourly fee when he or she does win, then, with respect to the caseload as a whole (with some cases being lost), the attorney would be working for a less than a reasonable wage.  As a result, few, if any, qualified attorneys would agree to handle cases against insurance companies.

The multiplier can range from 1.1 to 2.5 depending on the likelihood of success at the outset.  A low multiplier is to be applied to cases where winning at the outset was likely – meaning that the attorney had a strong incentive to take the case.  The higher multipliers are to be applied where the likelihood of winning at the outset was low.

On appeal, the Fifth District Court of Appeal struck the multiplier portion of the attorney fee award citing federal law for the proposition that multipliers are to be applied only in “rare and exceptional circumstances.”  The Florida Supreme Court rejected this holding and explained that it never limited the application of multipliers to “rare” or “exceptional” circumstances.

In the wakes of Hurricanes Matthew and Irma, this is very good news for homeowners in the St. Augustine and Jacksonville areas.  For one, it makes insurance companies more likely to fairly evaluate claims at the start even before an attorney is hired.  This, of course, is because the insurer is aware that not adjusting the claim fairly could result in a significant financial loss if the homeowner later hires a lawyer to sue the insurance company.  Second, it helps homeowners hire an attorney without having to pay out-of-pocket, an important consideration as many of these homeowners are already financially distressed due to the costs associated with dealing with hurricane damage. Continue reading

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When Hurricane Irma plowed the length of Florida on September 10 and 11, it left a surprising amount of damage throughout the Jacksonville area given that the eye of the storm passed more than 60 miles to our west.  Heavy flooding occurred in downtown Jacksonville, Doctor’s Inlet, St. Augustine, San Marco, Jacksonville Beach, Orange Park and Middleburg.  Wind damaged thousands of roofs.  Falling trees damaged houses, fences and cars.  Rising waters flooded homes and destroyed bulkheads and docks.  In Vilano Beach, at least one home fell into the ocean.

Within a few days of Hurricane Irma, our phones starting ringing with people concerned that their homeowners insurance companies were not treating them fairly.  At least one caller was shocked to learn he did not have flood insurance after his broker assured him that flood coverage was in place.  Others have already received woefully insufficient offers to address their storm damage.  In one Hurricane Irma claim, our client was offered $9,000.00 by his homeowners insurer for repairs that are estimated to exceed $50,000.00.

The most common insurance disputes our lawyers handle following hurricanes or major storms include: whether damage (especially interior water damage) existed before the storm; whether out-buildings are covered under the insurance policy; whether docks, decks, boatlifts or bulkheads are covered under the insurance policy; whether appropriate mold remediation has been completed; whether the hurricane deductible has been applied correctly; whether the value of damaged personal property has been fully evaluated; and whether the full extent of required repairs have been determined.

Often, our attorneys resolve insurance claims without filing suit; however, when suit is necessary, we do not hesitate.  We find that proper preparation and using appropriate experts and contractors usually convinces an insurer that paying the claim in entirety is its best course of action.

If you have a dispute with your own insurance company regarding damage from Hurricane Irma, we recommend that you speak with an attorney experienced in hurricane damage claims without delay.  If your insurer asks you to submit to an examination under oath, we cannot stress highly enough the importance of discussing the matter with an attorney before the statement is taken.  These statements can be used by the insurer to deny or limit the claim.


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Nine residents of a Miami, Florida, nursing home suffered death by agonizing heat distress after Hurricane Irma interrupted the supply of electricity to the nursing home.  The people who lost their lives ranged in age from 71 to 99.  Many other residents were treated for dehydration, breathing difficulties and other heat related issues.

For days following the hurricane, the nursing home’s residents were left in Miami’s sweltering heat and humidity.  The day after the hurricane passed, the temperature rose to 98 degrees.  The fallout from this tragedy is just beginning as the deaths were entirely preventable. A criminal investigation is ongoing and civil damages are likely to exceed $10,000,000.00.

Following Hurricane Wilma in 2005, it became abundantly clear that nursing homes in the state needed to have a backup source of electricity in the event weather conditions cause an interruption of power.  In 2006, legislation was proposed to require that all nursing homes in the state have generators able to cool and run their facilities.  Of course, providing this level of resident safety and comfort came with a price tag.  The nursing home industry successfully lobbied against the bill. Now that there has been a tragedy of this magnitude it is likely that similar legislation will pass.

It should not require legislation for nursing homes to obtain backup electrical power.  Common sense dictates that the loss of air conditioning alone creates life-threatening circumstances for the elderly and infirm.  If a nursing home operator is being paid to provide a safe environment for its residents, it is axiomatic that the operator should make the investment necessary to provide an uninterrupted supply of electricity.

Nursing home operators claim that they operate on slim profits due to the limited amount they receive from the Medicare and Medicaid programs.  However, for the most part, this is not the case.  While balance sheets can make it look like there is little profit to the nursing home owners, many of the listed “expenses” for rent, consulting services, and management services are paid to corporations owned by the same people that own the nursing home itself.  With the average nursing home profiting well over $1,0000,000.00 per year, there are certainly enough funds to finance a backup generator system.

It is my hope that the families of these victims obtain a full measure of civil justice.  With large payments to the families, perhaps this nursing home operator and others will realize that, even if they do not feel morally obligated to provide a safe environment, the short term financial savings in not doing so are outweighed by the legal claims that result.  Continue reading

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On June 28, 2017, the United States House of Representatives passed H.R. 1215 titled, Protecting Access to Care Act of 2017.  Among other provisions in this bill is a limit on non-economic damages that can be recovered from a nursing home that accepts Medicare or Medicaid funds.  This encompasses essentially all nursing homes.  The bill will become law if passed by the Senate by a simple majority.  With the republican majority in the Senate and, with tort reform being a battle-cry campaign platform for the Republican party, the chances of this bill passing are a real concern.

What are the effects of this bill?

Non-economic damages compensate a person for the emotional harm he or she has suffered.  Non-economic damages do not include medical bills, funeral costs or lost wages that might result from injuries caused by neglect.   Economic losses are not subject to any cap or limitation and, under this bill, would remain uncapped.  With nursing home residents, this provides little assistance as there is almost never a lost wage claim given the age and infirmity of the residents.  Further, the medical bills resulting from injuries caused by neglect are typically paid by Medicare or Medicaid, and any sums recovered for medical bills must be turned over to the government.  As such, practically speaking, non-economic damages (i.e., pain and suffering) provide the only recovery that can compensate an injured victim of nursing home abuse or neglect.

Currently, the pain and suffering damages are uncapped.  If a jury is horrified by neglect or abuse, it can render a verdict that provides incentive for the nursing home to provide quality care for its residents.  Without this “check and balance” in place, the nursing homes’ financial incentive will be to minimize their costs.  As the single largest expense of operating a nursing home is staffing, an incentive to lower costs translates into fewer nurses and nurse assistants available to provide care.

The Practical Effects of a $250,000.00 Cap

At first blush, $250,000.00 may sound like a lot of money.  However, it is necessary to keep in mind that this is the worst case scenario for a negligent nursing home operator.  Why would the operator voluntarily agree to pay its worst day?  Rather, in all but the most egregious cases, the operator will offer only a fraction of that amount.  One reason for this is that they know going to trial is nearly impossible for the plaintiff’s attorney with such a cap in place.

Even if we were to achieve a verdict of $250,000.00 at trial, the years of work and tremendous amount of time we spend on these case make such a recovery unprofitable.  Add to that the uncertainty of winning when we decide to take a case and it quickly becomes obvious that agreeing to handle a nursing home neglect case is a poor business decision.

Some specifics may flesh this out.  Abuse or neglect in nursing homes almost always start at the top with a corporate culture of saving money at the expense of resident care.  This is typically done by under-staffing the nursing home leaving nurses and nurse assistants with more work than can be done during their shifts.  In order to prove that under-staffing is the root cause of neglect, we must perform a very thorough investigation.  The time records of every nurse and cna must be evaluation and matched with the shifts in question.  In addition, the census and overall acuity of the health needs of the nursing home residents must be considered.  Multiple expert witnesses are needed to perform this analysis, each with a hefty price.  Further, nursing home operators fight tooth and nail to try to keep the time records and budget information from being provided to us, creating delay and additional expense.

As an example, in a recent case, our law firm spent approximately $150,000.00 on experts and litigation expenses – this figure includes nothing the reflect the value of the time we spent on the case.  We worked on the case for four years.  The result of our work was nothing short of alarming – the nursing home understaffed the facility by: having employees listed as working when they were not; counting nurse managers as providing hands on care when they did not do so; and having a system in place designed to staff the facility at the bare minimums regardless of the overall complexity of the health needs of the facility’s residents.  Only upon the discovery of this damming information was the case was settled for a fair amount.  With the cap in place, we could not have done the investigation and we never would have uncovered the nefarious reason why the nursing staff failed to provide sufficient care.  Simply put, with the cap in place, we cannot prosecute these claims.

Nursing home neglect is a serious problem.  Capping damages decreases the incentive to provide quality care as plaintiff’s lawyers will no longer investigate these incidents.  With the aging of our country, this is the last thing Americans should support.  Continue reading

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Sexual abuse in nursing homes is a sad occurrence.  A CNN  investigation concluded that between the years of 2013 and 2016, the federal government cited over one thousand nursing homes failing to prevent, or otherwise mishandling, allegations of sexual abuse including rape. Even more disturbing is that nearly every instance of sexual abuse is preventable if nursing homes are properly staffed and if employees and residents are properly vetted and supervised.

Several years ago here in Jacksonville, a $750,000.00 verdict was rendered against a nursing home as a result of a female resident being sexually assaulted by a male resident.  The male resident had criminal record for past sexual crimes.  What is worse is that there were also complaints that he was engaging in inappropriate aggressive and sexual behavior at the nursing home before the rape occurred.

Many residents of nursing homes are unable to protect themselves due to dementia or physical limitations, or both.  This makes them vulnerable to resident on resident sexual abuse and abuse from nursing home employees.

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Last year, the Centers for Medicare and Medicaid Services (“CMS”) enacted a federal regulation banning the use of pre-dispute arbitration agreements for nursing home residents.  Through such an arbitration agreement, a nursing home resident agrees to give up his or her right to have any disputes, including those related to injuries resulting from abuse or neglect, resolved by a jury.  Instead, one or more arbitrators will decide the outcome.  The arbitrators are usually attorneys who have practiced in the field of healthcare related injuries.

Awards in arbitration cases are often more limited than those provided by juries.  This results in part due to the fact that the discovery allowed in arbitrated cases is much more limited than in a lawsuit.  As a result, the most damming of evidence is often never found.  This is because much of the nursing home neglect that occurs is not the result of a simple mistake by a nurse or nursing assistant.  Instead, nursing home neglect usually results from a corporation’s systemic effort to cut staffing, training and supplies to a bare minimum in order to maximize profits. Without the ability to conduct thorough discovery, this type of information cannot be uncovered.  As a result, a full measure of justice is often avoided by a neglectful nursing home if the case is arbitrated.

In November of 2017, we reported that a federal court ruled that CMS’ rule banning arbitration agreements was invalid as it overstepped the rule-making authority of CMS. In short, an agency is entitled to make regulations for the implementation of laws provided the rules are consistent with the authority granted by the legislation.  However, an agency cannot create rules beyond the scope of that authority.

The federal court’s decision was on appeal at the time CMS enacted the new rules.  The new rules essentially render the appeal moot as the new regulations remove the ban on pre-dispute arbitration agreements.  This is unfortunate for nursing home residents.

The new rules do provide some additional measures a nursing home must take in order for an arbitration agreement to be binding; however, these measures are more form than function. The new measures include:

  1.  The arbitration agreement must be in plain language;
  2. If signing the agreement is a condition of admission, the agreement must make that clear;
  3.  The arbitration agreement must be explained “in a form and manner” understandable to the resident;
  4.  The resident acknowledges that he or she understands the agreement; and
  5. The nursing home must post a notice in a visible area advising of its use of arbitration agreements.

These additional requirements do little to help.  For the most part, they mirror already existing case law that our lawyers use to challenge the enforceability of a nursing home arbitration agreement.  Further, the requirement that the resident acknowledge understanding the agreement will likely be addressed by a signature line next to a sentence that affirms something to the tune of “I understand the terms of this agreement and I willingly and knowingly enter into the agreement.  I have been provided the opportunity to ask questions about the agreement and to consult with a lawyer regarding the agreement.”

Since these forms are routinely signed as part of a volume of admission documents that are all signed at once, adding such a signature line actually does nothing to demonstrate the resident understood the agreement at all.  Illustratively, it is estimated that fifty percent or more of nursing home residents suffer from some degree of dementia.

It appears that federal legislation will be necessary if pre-dispute arbitration agreements are going to be banned for nursing home residents. With the current makeup of Congress, this is not likely to happen anytime soon.

If you suspect nursing home abuse or neglect, we encourage you to call Florida’s Department of Children and Families’ hotline at 1(800)962-2873.

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Since 1976, Florida law has required that all vehicle owners purchase personal injury protection insurance coverage.  Personal injury protection (commonly called “PIP”) coverage provides medical and lost wage benefits for people injured in car accidents.  PIP coverage, also referred to a “no-fault” coverage, applies to injuries suffered by the vehicle owner and occupants in the vehicle regardless of fault.  In other words, your own auto insurer pays for up to $10,000.00 for your medical expenses and lost wages even if another driver was at fault for causing the car accident.

By requiring these benefits, Florida’s PIP statute prevents injured persons from seeking reimbursement for pain and suffering unless the person suffered a permanent injury, the loss of an “important bodily function,” significant scarring, or death.  In other words, if you suffered injuries in a car accident but eventually returned to normal, an at fault driver and his or her auto insurance company are only obligated to pay any unpaid medical bills or lost wages.

Concerns have arisen that PIP has provided fertile ground for insurance fraud by medical providers and unscrupulous accident “victims” charging for unnecessary medical care.  The cost for PIP coverage, which can duplicate health insurance benefits that most Floridians now have, was also a concern.

During Florida’s most recent legislative session, House Bill 461 was introduced to repeal and replace Florida’s PIP law.  Instead of requiring PIP coverage, the bill, if enacted as law, would require that every vehicle owner carry bodily injury coverage of $25,000.00 per person and $50,000.00 in aggregate bodily injury coverage if two or more persons are injured.  Currently, Florida law does not require that vehicle owners carry any bodily injury coverage at all.  It was estimated that, if enacted, repealing PIP would save Florida car owners approximately $80.00 annually.

Florida personal injury car accident lawyers are mixed on the idea.  The existing PIP framework allows for injured persons to have their medical expenses and lost wages paid.  This makes it easier for them to obtain medical care, especially for those who do not have health insurance.  Also, medical bills paid by PIP do not have to be paid back to the client’s auto insurer if the client receives a financial recovery from the at-fault driver’s insurer.

On the other hand, people who have suffered serious injuries sometimes lose their case because a jury does not agree that the person has suffered a permanent injury.  This most commonly arises with injuries to intervertebral discs. Spinal discs tend to degenerate over time and can be likened to brake pads that eventually wear out.  Some people who have never suffered an  accident or any trauma of significance have herniated or bulging discs.  Because of this, the presence of a herniated or bulging disc identified on an MRI is not the same as an x-ray that shows a person suffered a broken bone in an accident.

Insurers hire doctors of their own choosing who routinely testify that herniated or bulging discs were not caused by an accident. Unfortunately, the car insurers do this in almost every disc injury case even if the injured person never previously suffered from neck or back pain in their entire life prior to the car accident.

The result can be very unfair.  A jury may very well check the “no” box on the verdict form indicating a legitimately injured claimant suffered no permanent injury, which then results in a loss and subjects that person to a judgment for the insurer’s significant court costs.

If PIP is repealed, the “permanency” threshold will not apply, and jurors will simply award the amount of compensation to which a person is entitled, assuming the jury finds the other driver to be at fault for causing the accident.

For the time being, Florida’s PIP laws will remain in place as the House bill died during the legislative session as the Senate failed to vote on it before the session ended.  Similar bills will certainly be proposed in the future.  Continue reading