Legal Blog
Medical Malpractice Recovery Rights for U.S. Soldiers?
The United States House of Representatives yesterday (10/7/09) took action that will hopefully lead to the end of discriminatory treatment of soldiers injured by medical malpractice.
Since the Feres decision by the United States Supreme Court in 1950, soldiers have not been able to bring actions for medical malpractice against the government; this is true irrespective of the level of disregard for their well being. Since the 1950’s untold numbers of soldiers after serving acting duty have been subjected to substandard treatment in military medical facilities. The House Judiciary Committee has now approved the Military Medical Accountability Act which would allow soldiers the same rights as private citizens injured by medical malpractice.
The bill named after Marine Sgt. Carmelo Rodriguez, who served his country with honor for nearly a decade, including a tour of duty in Iraq, and died as a result of preventable medical negligence. A blotch on his buttock went untreated and misdiagnosed multiple times by military doctors. By the time Sgt. Rodriguez learned it was a cancerous melanoma the damage was done. Sgt. Rodriguez, the father of a 7 year old son passed away shortly after a proper diagnosis.
If this bill is passed by both the House and the Senate, it is anticipated that it will be signed into law by President Obama.
Posted by: Leland Garvin
Broward County Judge Throws out DUI Test Results
Last week Broward County Court Judge Lee Jay Seidman concluded a four-day hearing by ruling that the accuracy of many breath tests using the Intoxilyzer 8000 has been “fatally compromised.”
The Intoxilyzer 8000 is the most recent version of a device that is designed to detect the percentage of alcohol in the breath of a suspect who has been arrested upon suspicion of drunk driving; this device is commonly referred to as a breathalyzer. Pursuant to Florida law these machines must be periodically inspected and certified for accuracy by the Florida Department of Law Enforcement.
Previous to this ruling F.D.L.E. inspector, Sandra Vegia, testified that during her inspections of the Intoxilyzer she would commonly cut off the power to the device if it did not meet specifications and then conduct the inspection a second time with the hopes of receiving a passing score.
In addition to ruling that state law “was not substantially complied with” Judge Seidman went on to say that “Moreover and certainly more troubling is the further finding that fraudulent practices and the systematic intentional destruction of evidence occurred regarding these state-regulated breath alc
ohol testing machines.”
While Judges in Monroe, Manatee, and Sarasota counties have already ruled that the Intoxilyzer 8000 results are not admissible in a criminal prosecution, Judge Seidman is the first Broward Judge to make this ruling. His ruling will only apply to DUI cases that occurred from 2007 through the summer of 1008.
Broward criminal defense lawyers are anxiously awaiting the rulings of many other Fort Lauderdale county court judges who have yet to weigh in the matter. Meanwhile, DUI Attorneys in Palm Beach are preparing to file these same motions on cases involving the Intoxilyzer 8000.
Posted by: Leland Garvin
Southwest Florida Trial Lawyer, Jeffrey Garvin sworn in as FLABOTA President
The Garvin Law Firm is proud to announce that Attorney Jeff Garvin was sworn in as President of the Florida Chapter of the American Board of Trial Advocates at its Annual Convention in Longboat Key, Florida on July 25th.
ABOTA is an invitation only national organization of trial attorneys dedicated to preserving the independence of the judiciary and the right to trial by jury.
At the convention, Mr. Garvin spoke on the topic of the cross examination of expert witnesses.
Also sworn in were Bob Cole of Jacksonville as President-elect and Tom Gamba of Miami as Treasurer
Posted by: Leland Garvin
New Florida Seat Belt Law Goes Into Effect Today
Until now, drivers could only be cited for not wearing seat belts if they were pulled over for something else, such as speeding.
That changes today with the passage of the Dori Slosberg and Katie Marchetti Safety Belt Law. With the passage of this new law a Florida driver who is not wearing a seat belt can be pulled over and issued a traffic citation for a nonmoving violation.
The state fine for a seatbelt violation will be $35, and each county may impose additional fines and court fees as well. Drivers and passengers who are found in violation of the new law are subject to a $114 fine in Miami-Dade County and $115 fine in Broward County.
This law is named in memory of two Florida teens that were killed in separate traffic accidents and died as a result of not wearing their seatbelts.
There are some exemptions to the new law, for instance a traffic ticket cannot be issued if an occupant has a doctor’s note, drives a trash truck, deliver newspapers, or is in the back of a pick-up truck.
Posted by: Leland Garvin
Palm Beach Appeals Court Affirms $6.4 Million Verdict in Med Mal Case
Back in June of 2007 attorney Jeff Garvin of Fort Myers and Wilton Strickland of Fort Lauderdale successfully argued that medical malpractice was committed when a Broward County otolaryngologist (ENT) failed to diagnose tongue cancer.
A Broward County Jury awarded the Garvin Law Firm client $6.4 Million Dollars after hearing two weeks of testimony. Garvin argued that the Pembroke Pines Doctor was negligent when he failed to notice several recognizable symptoms of tongue cancer. This argument was strengthened when evidence was presented that the client sought a second opinion and this doctor noticed cancer almost immediately. Unfortunately for the client, the cancer had already spread and required extensive surgery to remove the growth.
After this surgery, which required the removal of most of his tongue, the client was left with a difficulty speaking, can’t swallow, and is forced to eat blended food through a tube in his stomach.
After the jury awarded a $6.4 million dollar verdict (which was reduced to $5 million by the Judge), the defense lawyers appealed the case to the 4Th District Court in Palm Beach County. In reviewing the case, the appellate court determined that the money was properly awarded and allowed the verdict to stand.
Posted by: Leland Garvin
Naples Criminal Defense Lawyer Prepares "Stand Your Ground" Defense after Shooting Death
According to the Collier County Sheriff’s Office, the shooting took place some time after 4 a.m. this past Friday when 44 year-old Sterlin F. Misener Jr confronted 19 year-old Patrick Hutchison after seeing the teen exit a camper that was parked in Misener’s Naples Driveway.
Misener told authorities that he awoke to the sound of a burglar alarm and shortly after saw Hutchinson exit a camper that was parked in his driveway. According to reports, a confrontation began and Misener stated that the teen lunged at him before he fired the fatal shot.
According to Florida Law, if a person has a reasonable belief that they’re in danger of death or great bodily harm, they can legally respond with deadly force. Further, that a person is presumed to have held a reasonable fear of death or great bodily harm if the intruder had forcefully and unlawfully intered a dewlling, residence, or occupied vehicle.
The statute, enacted in 2005, goes on to state that a person who uses deadly force is justified in using such force and is immune from criminal prosecution.
Whether or not the camper parked in Mr. Miseners driveway will meet the definition of “Dwelling” is yet to be determined.
According to the Naples Daly News, Homeowners generally aren’t prosecuted, but a Hillsborough man was arrested on a charge of aggravated battery, was prosecuted, but won a motion to dismiss the charges. The prosecutor appealed and won in December 2007, when the Second District Court of Appeal ruled David Heckman was not entitled to immunity from prosecution under a statute that provides immunity when protecting a home.
The Hillsborough decision will not bar Mr. Miseners ability to use this defense as the two cases are quite different, but Floridians will have to follow this case for the final result.
For more on the Justifiable Use of Deadly Force Defense take a look at Florida Statute Section 776
Posted by: Leland Garvin
Broward County Sheriff Begins Traffic Ticket Blitz
Starting this morning (3/16/09), Broward Sheriff’s Office deputies and state troopers will be conducting a ticket blitz in western Broward County.
Squads will be on Interstates 75 and 595 and on the Sawgrass Expressway from 8 a.m. to 2 p.m. Monday, Tuesday and Wednesday. On Thursday, the officers will patrol those highways from 2 p.m. to 10 p.m.
The joint operation, which targets aggressive motorists and violators of the “Move Over” law and seatbelt requirement, will continue for four days, according to Sheriff’s Office spokesman Mike Jachles.
For more information visit our page on traffic ticket defense.
Florida Criminal Defense Lawyer Forced To Represent Client?
In any criminal case a defendant is entitled to an attorney even if they cannot afford one; the same defendant is also entitled to an attorney who is free from a potential conflict of interest.
This normally does not create a problem unless there are multiple co-defendants, who cannot afford a private attorney.
Clearly the public defender would be appointed to represent the first defendant, but what about the others? If the public defender’s office represented more than one defendant there could be a conflict of interest. after all, how could the same office be expected to do what is best for each defendant individually. In any criminal case the defense lawyer must look out for his or her client individually; even if that comes at the expense of others charged. The defense attorney must always be able to use the argument: “the other guy did it” or ” the other guy made my client do it”.
In the past, private attorneys would sign up to represent the other defendants at a pre-arranged, lower cost rate. In 2008, the Legislature decided to drastically reduce the rate that it paid private “conflict attorneys” which caused the list to shrink leaving only a hand full of attorneys.
This created a problem for Manatee County Chief Judge Lee Haworth last May when he was assigned a 15 defendant drug trafficking case. Judge Haworth assigned the public defender for the first defendant then turned to the conflict counsel list and began to make appointments until he ran out of lawyers. That’s when the Judge decided to randomly appoint attorney Gregory Hagopain; the only problem was that attorney Hagopain wanted nothing to do with the case and the small amount of money that the state was willing to pay. Hagopain has been trying to get off of the case ever since his appointment but his pleas have been denied. According to Hagopain the case has 382 witnesses and boxes of discovery that would swamp his one lawyer practice.
This appointment has not been good for the attorney, as he is forced to take time away from his other clients, and the defendant has been forced to have an attorney who does not want to represent him. It is likely that this will become a more common situation as the legislature continues to cut funding for the Florida Judicial System.
Posted by: Leland Garvin
Florida Judge Throws Out Over 100 DUI Breath Test Results
A Manatee County Judge ruled that the Breath Test results in over 100 DUI cases are inadmissible at trial.
The Kentucky-based manufacturer has refused to release the machines source code, citing the fact that the code is a protected trade secret. This refusal has already resulted in over $2 million in fines against the company.
Posted by: Leland Garvin
Miami-Dade Criminal Defense Attorneys Stuned after Successful Insanity Defense
After 5 hours of deliberations a Miami-Dade jury came back with a verdict of not guilty by reason of insanity verdict. Defendant Lavenston Horne Horne was charged with shooting and killing both of his parents as his father was fixing dinner on July 8th, 1996. Lavenston also shot his sister multiple times when she walked into the room. Lavenston’s sister, Inga, survived and testified that a few weeks before the murders, her brother came to her and told her that he was hearing voices that were telling him to do bad things.
After Lavenston fired on both of his parents he is reported to have stood over his mother and shouted “Who’s the king now?”
After Lavenston was arrested, he told the officers that his father “went crazy” and shot his mother and sister, and then turned the gun on himself.
Prosecutor David Waksman, a 34-year veteran who has won two other insanity cases and dozens of murder cases, certainly expected to convict Horne.
Many Defense Lawyers agreed that this would be a tough case to use the Insanity Defense; this was based largely on Lavenson’s statements as well as other damaging evidence.
Check out the Miami Herald for the full more information.
Posted by: Leland Garvin