Tag Archives: attorney

Palm Beach Doctor held liable for $668,000 plus attorney’s fees, despite carrying malpractice insurance

Contrary to popular belief, medical malpractice insurance does not insulate a physician against personal financial exposure. In fact, most doctors in Florida only carry $250,000 in coverage when the malpractice verdicts commonly exceed $1,000,000.  You can do the math yourself.  Personal counsel can assist a physician by providing legal advice to best protect a physician against personal exposure when the damages of a case threaten to exceed the limits of the malpractice insurance policy.

A recent wrongful death lawsuit against a doctor in Palm Beach county demonstrates just how important personal counsel can be.   In 2015,  a plaintiff filed a medical malpractice case against Dr. B.C., a Board Board-Certified Orthopedic Surgeon.  The plaintiff claimed that Dr. B.C. negligently allowed his patient to resume a medication, Evista, following foot surgery.  The patient developed a DVT and pulmonary embolus which caused her death.  The patient was 60 years old.  The plaintiff claims that the death was caused by Dr. B.C.’s negligence and filed suit against him.

Dr. B.C. properly forwarded the lawsuit to his insurance carrier and the carrier appointed counsel to defend his case.  Dr. B.C., like most doctors would in situation, probably thought he was protected because he carried a $250,000 insurance policy.

Early in the litigation the plaintiff offered to settle the entire case for $250,000.00, the policy limits, by sending the plaintiff a “Proposal For Settlement” (aka “PFS”).  A PFS is a time sensitive demand that carries significant penalties if not timely accepted and the judgment turns out to be 25% greater than the offer.  Had the insurance company timely accepted the offer, the carrier would be responsible to pay the claim,  Dr. B.C. would owe nothing, and the case would have ended.  Instead, the carrier rejected the offer.

After an 11-day trial, the jury found in favor of the plaintiff and returned a verdict for $1,475,232.00. The jury apportioned 57 percent liability to Dr. B.C.  The Plaintiff also sought to collect his attorneys’ fees from the date of the settlement offer.  The court issued a  final judgment against Dr. B.C. in the amount of $668,604.79 plus attorney’s fees.  The insurance company appealed and lost.

Dr. B.C. had an opportunity to settle the case for $250,000.  Had he had personal counsel, the personal counsel could have advised Dr. B.C. of the risks involved in not accepting the PFS.  More importantly, the personal counsel could have cautioned the insurance company that if they failed to timely settle the case, they would expose Dr. B.C. to increase risk.  In some cases, courts have found insurance companies to be in “bad faith” by not accepting reasonable settlement offers and have forced the carrier to be responsible for the entire judgment, even if it exceeds policy limits.

Personal counsel may have prevented excess exposure against Dr. B.C.  If you are named in a lawsuit, personal counsel will serve as a key advisor and make you aware of the risks you are taking.   Personal counsel will assist the doctor in objectively assessing the defenses available and potential exposure at trial.  Personal counsel does not work for the insurance carrier.  Personal Counsel only advocates for the physician, doing his or her best to protect the physician from an adverse judgment in excess of policy limits.

 

YOU CANNOT AGREE WITH YOUR EMPLOYEES THAT YOU DO NOT HAVE TO PAY THEM OVERTIME, EVEN IF THE AGREEMENT YOU MAKE PAYS THEM MORE

The right to overtime under the Fair Labor Standards Act (FLSA) cannot be given up in an employment contract, or agreed between the employer and employee not to apply. In hundreds of FLSA cases I have been involved in, one of the most common things employers are sued for is coming up with ways to pay their employees more, but that do not pay them overtime at one-and-one half times their regular hourly rate. Often times these employers tell me that the employee gladly signed a contract to be paid that way because it meant more money. A contract to pay less than one-and-one-half times the regular hourly rate for overtime hours is an illegal contract and completely unenforceable. An employee cannot give up his/her right to overtime, and an employer cannot agree to not follow the law. However, if you do want to pay your employees in a way that is not a strict hourly rate, and one-and-one-half times that rate for overtime, there are ways to do that for some employees. Other employees the Fair Labor Standards Act (FLSA) does not require you to pay overtime to. While exceptions to overtime laws can be applied to some employees, and other employees can be paid a salary that reduces the overtime rate (salaried employees are entitled to overtime), complex legal rules apply. Implementing a system of payment that does not subject you to lawsuits usually requires a labor lawyer. The Fair Labor Standards Act is a specialized field. To have a specialist help you avoid costly lawsuits call or email Joshua Sheskin at Lubell Rosen today – By: Joshua H. Sheskin, Esq., 954-880-9500 – JHS@LubellRosen.com

A WRITTEN AMERICANS WITH DISABILITIES ACT (ADA) POLICY IS ESSENTIAL TO PROTECT YOUR BUSINESS AGAINST LAWSUITS

The word disability has a very broad meaning under the ADA, and conditions you would not think are disabilities can lead to costly lawsuits if an employer does not have a policy to properly handle ADA Accommodation requests by employees. Believe it or not, an appellate court has held an employer liable for not allowing an employee with a sleep disorder to show up to work late every day. However, not all accommodations are required. The most important thing for an employer to do when faced with an ADA Accommodation request is to follow the right process and procedure, but the employer needs to have and disseminate a written ADA Policy, in advance, to truly protect themselves. Big, and small, employers are regularly sued for failure to accommodate employees under the ADA. Protect yourself today with a written ADA policy, and training as to how to properly use it, call Joshua Sheskin at the Ft. Lauderdale Headquarters of Lubell Rosen. By: Joshua H. Sheskin, Esq., 954-880-9500JHS@LubellRosen.com.