Demonstrative Medical Illustrations

Posted on: June 4th, 2014 by southfloridamediator
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As an aid to mediation and as a support to testimony at trial, medical illustrations are a valuable tool.

Underlying medical testimony may be supported by demonstrative medical illustrations if they are relevant and helpful to the trier of fact.  A description and illustration of a surgical procedure, for example, is fundamentally relevant to:

  1. understanding the nature and extent of injuries;
  2. appreciating the sequential and life-altering phases of plaintiff’s treatment regimen;
  3. understanding the profound anatomical and mechanical changes brought about by the surgery; and
  4. justifying the reasonableness and necessity of corresponding medical bills.

Relevance must be shown and received by the court (and the mediator) as a basis for acceptance of the medical illustration.

More on this topic in my next blog post…

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Demonstrative Evidence and Visual Aids

Posted on: March 21st, 2014 by southfloridamediator
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There are times during a mediation when one or both of the parties decides to reveal demonstrative evidence of the accident/injury, for example.  Here is some advice regarding the use of such evidence…

A picture is worth 1000 words.  Nothing is truer than that adage. It is far more effective to show a picture, diagram, chart, anatomical model, or the like, than to talk about it.

Be sure, however, that the demonstrative aid is a fair and accurate representation, and it will assist the jury in understanding the issues in the case.  The person offering the evidence must be asked those two questions in laying the foundation for the offer of the evidence.

Avoid gratuitous gore; prepare the witness for the foundation questions.

To discuss these points further, call Stan Weissman at 561 994 4540

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Introducing Evidence of Medical Bills and the Health InsuranceDiscount

Posted on: March 7th, 2014 by southfloridamediator
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A mediator must be aware of the law as it pertains to the introduction of evidence concerning medical bills and the health insurance discount.  Sometimes a mediation will turn on the amount of these bills and whether plaintiff received collateral source payments.

A defendant may not introduce evidence of health insurance “discounts”.  Plaintiff may introduce the full amount of medical bills, but an award of damages to plaintiff is subject to a post-judgment setoff.  The collateral source rule prohibits introduction of evidence of payments received by plaintiff from private health insurance.  The mediator must be sure that both sides are aware of these rules.  If plaintiff is pro se and it appears that he/she is unaware of the law, the mediator should suggest that the litigant consult an attorney.

Pursuant to Fla. Stat. Sec. 90.956, medical bill summaries are admissible.

If you have any questions about these rules, or wish to retain an experienced personal injury mediator, call Stanley Weissman at 561 994 4540

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Mediating Negligence Cases – Use of Cell Phone While Driving – Punitive Damages

Posted on: February 24th, 2014 by southfloridamediator
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The recent number of cases involving use of cell phones while driving has given rise to concerns over whether punitive damages may be awarded to the injured party.

Since 2010, there were several decisions involving a claim for punitive damages.  However, there may be a divergence of views among the counties in Florida.  Although some states permit punitive damages to be awarded, Florida’s courts will only permit a claim for punitive damages in the most egregious case.

So it has been held in Broward and Collier counties that punitive damages may be claimed where a driver was texting on a cell phone while driving and a collision occurred.  It may be a factor in an action against the driver’s employer, that there was a policy in place that prohibited cell phone use while driving.

The mediator must be aware of the law in the jurisdiction where the action is pending.  It may be of extreme importance in a case involving multiple parties.

For more information on mediation services in South Florida contact Stanley Weissman at (561) 994-4540.

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Mediation of Negligence Cases: Subsequent Medical Errors

Posted on: February 19th, 2014 by southfloridamediator
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Often the mediator must deal with a case of a chain reaction involving a subsequent medical error.  This involves knowledge of the Florida Standard Jury Instruction 401.12.  (b) Concurring cause…need not be only cause…”contributes substantially…”

A wrongdoer is liable for the ultimate result, even where mistake or negligence of a treating doctor compounds the injury.  An initial tortfeasor may be held responsible for all subsequent injuries, including those caused by medical negligence.  This rule applies even where the initial and subsequent tortfeasors are both doctors.  In this case, be aware that there may be multiple parties to the lawsuit; each trying to settle for only its part of the total damage.

Where a defense expert’s version of events suggests that surgery was not indicated, and surgery would make the injury worse, the Court would have to charge the jury using the intervening cause instruction: Where one who has suffered personal injuries as a result of the negligence of another seeks medical treatment from a physician or surgeon, and the injured person’s injuries are thereafter aggravated or increased by the negligence, mistake, or lack of skill of such treatment, the law regards the negligence of the one causing the original injury as the proximate cause of the damages flowing from the later negligent, unskillful, or unsuccessful treatment of the physician or surgeon.

Although a mediator may not advise the parties of the law applicable to the case at hand, he/she must be aware of the present state of the law, and must see that all parties are guided accordingly.  If one party is obviously mistaken as to the law, the mediator may suggest that the party (if pro se) consult an attorney before continuing with the mediation.

You can contact mediator Stanley Weissman by calling (561) 994-4540

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Mediation of Chain Reaction Accidents – Sequence of Events Part I

Posted on: February 13th, 2014 by southfloridamediator
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The mediator must be aware of the law relating to a chain of events which cause injury.  Each fact situation must be carefully analyzed by the mediator in order to assess liability.  Then the mediator will have a better understanding of the position of each party.

In chain collision accidents, the basic rule is that a driver who causes the initial accident is liable where his conduct sets in motion a chain of events resulting in injury down the line.  It is enough that the resulting injury is within the “scope of risk” created by the original tortfeasor.  For example, where one stops his car in the middle of a multi-lane highway, a reasonable person would have to conclude that such conduct creates a risk that other cars may collide as a result of trying to avoid hitting the stopped car.

In another fact pattern, a plaintiff was injured by a thief who stole a vehicle. The rental car company employee who negligently left the keys in the ignition could be liable for making the vehicle accessible to the thief.  This set in motion the chain of events which led to plaintiff’s injury.

Where a bicyclist was killed when he swerved into traffic while avoiding a defect in the bicycle path, the county was held liable for negligently failing to maintain the bicycle path.  Plaintiff’s own negligence does not abrogate the claim of causation arising from the first event; it may only be used as comparative defense.  This rule also applies to the negligent installation of a burglar alarm (a home robbery was a foreseeable event that was not an intervening cause).  However, one must be aware that there my be instances where the original negligence is remote; the injury was caused by a superceding cause.

Go here to contact Stanley Weissman about his mediation services.

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Auto Accident Mediation: Rear End Collisions

Posted on: February 10th, 2014 by southfloridamediator
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A mediator must be aware of the law as it pertains to the type of case before him.  The most common cases involve personal injury litigation.  Of these, the most prevalent are auto accident cases.  Some recent decisions involving the “hit in the rear” fact pattern will aid the mediator in understanding the position of plaintiff and defendant.

Where plaintiff’s car is lawfully stopped and struck in the rear by defendant’s car, there is a presumption of negligence against defendant.  Unless the presumption is rebutted, the beneficiary of the presumption (plaintiff) is entitled to judgment as a matter of law.  This presumption arises out of necessity because the front driver is usually in a poor position to observe the conduct of the rear driver, and thus introduce evidence as to the cause of the collision.  Often plaintiff can offer no evidence against defendant, and the latter refuses to do so.

There are conflicting decisions as to what constitutes a rebuttal of the presumption.  In one case, defendant/front driver was talking on a cell phone at 45 mph, came to an abrupt stop over a blind hill.  Plaintiff/rear driver following 4 car lengths behind at 35 mph slowed approaching the hill but was unable to avoid the collision.  Rear driver’s damage claim was barred unless he can establish a complete absence of negligence on his part.  In another case (decided by a different Court of Appeals) a front driver going 35 mph stopped in traffic for no apparent reason.  It was held that a jury could find that the front driver’s actions were unreasonable and his negligence was at least one of the proximate causes of the collision.  This confusion was resolved when the Fla. Supreme Court held that the rearward driver need not establish complete lack of negligence on his part in order to rebut the presumption.  It is sufficient to show some degree of negligence attributable to the front driver.

Thus, the mediator must understand that rear end collision cases must be governed by principles of comparative fault.  Where a jury could conclude that the front driver was negligent and comparatively at fault, the presumption is rebutted.  The case will go to the jury without the aid of the presumption.

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Mediation: The Fast, Efficient, and Least Costly Way to Resolve Litigation

Posted on: February 5th, 2014 by southfloridamediator
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As Florida attorneys are aware, mediation is compulsory in all civil cases.  Moreover, mediation is the fast, efficient, and less costly way of resolving litigation.  The mediator, whether appointed by the court or chosen by the litigants, is an experienced, unbiased, and disinterested attorney whose job it is to help the litigants and attorneys reach an amicable resolution to their case.

Most importantly, everything discussed during mediation is privileged and confidential.  Nothing that was said or learned during the process may be divulged in court or to others unless the parties agree.

It is the parties to the litigation, not the court or jury, who decide to settle the case.  The outcome is strictly in the hands of the litigants…not left to the whim or caprice of those who are not involved in the lawsuit.

You can contact Stanley Weissman here, or call him at (516) 994-4540.

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South Florida Mediator on Youtube

Posted on: July 9th, 2012 by southfloridamediator
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South Florida Mediator Stanley Weissman has just posted his first Youtube video! Take a look…

 

Looking for a fair and experienced mediator to help you resolve legal disputes without the delay and cost of a trial?

Certified Circuit Court Civil Mediator, Stanley Weissman is available to handle your mediation in Palm Beach and Broward Counties.

Mr. Weissman has more than 51 years of litigation experience and has taken part in mediations for both plaintiffs and defendants in legal matters involving personal injury, medical malpractice, commercial disputes, probate, and foreclosure.

If you’re looking for a mediator in South Florida who is both fair and experienced then give Stanley Weissman a call today at 561.994.4540.

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