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Personal Injury

PERSONAL INJURY F.A.Q.S. (Florida Personal Injury and Motor Vehicle Law)

“Sometimes in personal injury cases a financial recovery may cost a social security recipient loss of his or her social security and/or Medicare Medicaid benefits. Most personal injury attorneys do not understand this” – Mike Murburg

Mike Murburg received his Bachelor’s Degree from Princeton University in 1977, graduated with honors from the Florida State University School of Law in 1986. He was thereafter admitted to practice law in Florida, Washington State and the United States Supreme Court. Before concentrating his practice on Social Security Disability and disability related matters, Mike was a successful trial attorney with over 80 jury trials which he handled the successful conclusion for his clients, winning almost 90 percent of the jury cases he tried.

Mr. Murburg has over 20 years experience dealing with questions from his disabled clients who have been injured as a result of someone else’s negligence.  The Law Offices of Mike Murburg P.A. do not actively pursue the representation of persons injured in accidents.  However, we will at the request of our present and former clients, represent them in these types of cases or refer them to another attorney who is best set to represent them in their particular case.

  1. What should I do if I am in an automobile accident?

If you are in an accident, it should be reported to your insurance company as soon as reasonably possible.

If you are injured at the scene, do not be afraid of obtaining medical care there.  An emergency medical technician is well qualified to examine you.  If necessary, go to the emergency room for diagnosis and x-rays to ensure there are no broken bones or internal injuries.  Once they release you, it may be a good time to consult an attorney about your case.

During the period prior to making a demand to settle your case and before actual litigation in court, if we cannot get your case settled, we will be constantly updating your file to obtain current medical reports, correspond with insurance adjusters, and compile medical bills or property damage reports and bills to be forwarded for collection from the insurance carrier.  We shall also identify and research actual and potential legal issues, obtain statements from witnesses when necessary and contact potential “Expert” witnesses for trial purposes when the need to do so becomes apparent.

  1. Who will pay my medical bills and lost wages?

If you are an injured driver or passenger in a motor vehicle accident in the State of Florida, unbelievably it is your own auto insurance carrier, through your own Personal Injury Protection Benefits who is responsible to pay 60% of your lost wages, and 80% of your medical bills.  This is true no matter who is at fault, and is payable up to an aggregate of $10,000.00 even if you were at fault; hence, the somewhat misleading term “No Fault” insurance.

During the course of your treatment, you may exhaust your PIP benefits.  This usually happens when the total of your bills exceeds $12,500.00.  So if you have health insurance, Medicare or Medicaid as well as PIP/no-fault benefits, please let your health care providers know and give them all the information necessary to bill that co-provider.  Remember, your PIP/no-fault benefits only pay 80% of your bills up to a total of $10,000.00 coverage.  The 20% is payable by your co-insurer (for example, Automobile Med-Pay, Blue Cross/Blue Shield, Aetna, Humana, Medicare, Medicaid) or by you out of pocket or eventually from your recovery should there be one in your case.  As a consequence, it is always wise after you are injured to check in with your family doctor to apprise him of your treatment.  It is important not to have him or her “out of the loop” since not only he/she is one of your most valuable witnesses if suit is filed, he/she may be called upon to make the appropriate referral for you to a specialist once your PIP/no-fault benefits are exhausted and payment for your medical bills is taken over by your co-insurer/health insurance provider.

Attorneys who practice personal injury law and put the client first, have found it financially favorable for our clients in the long run to obtain medical care through their co-insurer once PIP/no-fault benefits are exhausted.  Even though your health insurer maintains a lien on your recovery, the lien is much reduced because of the lower cost of medical attention, surgery, hospital care, and pharmaceuticals that the co-insurers have negotiated with providers.  This results in a greater net recovery for you out of an eventual settlement.  (For example, surgical facilities will bill you $10,000.00 per day if you are self-insured, but only bill a health insurance carrier or Medicare between $750.00 and $1,000.00 for the same facility.)  Additionally, I have seen surgical bills of $30,000.00 paid at a rate of $3,500.00 by a health insurance carrier.  The choice of where to get medical care and how to have it paid for is your decision.  Please try and be wise with your choices and check on your potential bills for services and on your total bill from your providers so you know what your bills are.  Your attorney should ask your PIP/no-fault carrier to advise him and you and to copy you with a Notice of Exhaustion of Benefits if, and when, your PIP benefits run out.

Additionally, you should confirm whether or not your health care providers are going to accept your private insurance, Medicare or Medicaid after your “No Fault” benefits are exhausted.  If not, let your attorney know in writing so that he or she can advise you of your options.

  1. If I am on Medicare or Medicaid, shouldn’t they pay my bills?

If you receive Medicare or Medicaid payments on account of your accident, this may slow down our abilities to release funds to you at the time of settlement of your case.  Federal law requires that Medicare and Medicaid be reimbursed for monies paid to physicians who treat as a consequence of your accident.  Sometimes the procedure in getting Medicare or Medicaid to respond can take months.  Often times Medicare does not come up with the right amounts, nor do they come up with the right doctors.  You will have to be patient in determining these amounts and the waiting time that the additional investigation by Medicare and/or Medicaid may cause.  If you have not done so already, you should provide my staff with a copy of your Medicare or Medicaid card for our file if you are receiving benefits from either or both of them so that your attorney can begin the process of obtaining information regarding any lien Medicare or Medicaid may claim in regard to your accident as soon as possible.  The same is true with your private health insurance carrier who will also have a lien on your recovery for accident related expenses he/she have paid for.

During the period prior to making a demand to settle your case and before actual litigation in court, if we cannot get your case settled, we will be constantly updating your file to obtain current medical reports, correspond with insurance adjusters, and compile medical bills or property damage reports and bills to be forwarded for collection from the insurance carrier.  We shall also identify and research actual and potential legal issues, obtain statements from witnesses when necessary and contact potential “Expert” witnesses for trial purposes when the need to do so becomes apparent.

  1. How and when should my case be concluded?

In order to help conclude your case, your attorney must be in possession of sufficient facts to sustain our position before a demand to settle your claim or lawsuit is filed. The length of time it takes to reach the point of filing a lawsuit will vary from case to case. Most cases are settled before it is necessary to file a lawsuit. Others are settled at “mediation” or later “at the courthouse door” after the claim has been filed and just before the trial actually begins. The personal injury staff and your attorney are continually working to successfully settle disputes without resorting to trial. However, everything that we do contemplates the possibility of trial so that our clients and your case are properly preserved and protected if that circumstance becomes a reality. Insurance companies respect this and know that this firm is not afraid to try these cases thereby allowing us to recover what you deserve.

  1. What should I tell my doctors?

At some point in time, you will be visiting doctors in reference to the injuries you sustained in this case.  Patient history is of the utmost importance.  You should give each of your treating physicians a written and exact description of how the accident in question occurred and whether or not you had any prior similar or dissimilar injuries or accidents as well.   Please take your time and be accurate and advise him of any and all accidents and injuries for which you sought care.  Do not try to hide anything. Your honesty and integrity are the most important part of your case.  Moreover, the insurance companies will know of just about all instances in which you sought medical care.  Do not try to hide anything.  Even if you are not a liar, a good defense attorney or insurance adjustor can make it look that way if you are careless about your injury or medical history.  So take your time, think about the questions you answer and be careful.

Not only will it be important that you keep all medically related appointments with your doctors, you should also keep your doctor fully informed with regard to all progress and problems associated with our medical recovery.  Some orthopedic and neurological problems come and go.  Please communicate with your doctor and let your physician know about your “bad” days even though you may be experiencing a “good one” in his office.  It is also helpful if after each visit with the doctor you keep a diary or write notes to yourself with regard to what the doctor has said concerning your progress or prognosis.  Please note in your diary only pains or symptoms you may experience so that you may relate them to your physician and to me on a later date.  Once again, copies of all medical bills and reports should be forwarded to our office so that they may be submitted to your insurance carrier or made a part of your file.  If you take any over-the-counter medication for your accident related injuries, please keep copies of the receipts for these medications and all empty bottles until the case is concluded.

During the course of your treatment until the resolution of the case, we suggest that you not go on any rides at any attractions.  These rides have warnings about persons with injuries to the back and neck not riding on them and as is often the case, people try them and get re-injured.  That will also deduct from the value of your case.  Only healthy people should go on these rides anyway.  Additionally, should you brave the ride and it comes up during litigation that you had gone on the ride, the insurance company will try to make it look like there is nothing wrong with you to the extent that you are able to go on amusement park rides and not suffer any consequences, hospitalizations or additional medical treatment subsequent to those attraction rides.  As a consequence we advise against going on to any of the rides at any of the attractions locally or otherwise.

  1. With whom must I communicate about my accident?

After having retained a law firm to represent you, you should not discuss the nature of your claim or any facts surrounding it without first talking to us. Apart from the filing of a lawsuit, you have the right not to communicate with anyone. Do not take that right lightly. Please keep your attorney advised of all developments which relate to your case. This information may be related by telephone or mail to the personnel in our office and usually will not require a personal interview unless you feel that it is necessary or it is requested by our office. Your attorney will be sending you insurance disclosures early on in your case and will advise you of important developments regarding the progress of your case. Please remember that a good personal attorney is constantly involved in working on active cases for all of his/her clients. Time and ability to devote proper attention to our cases has a direct bearing on our effectiveness. Office personnel are trained to take messages and to relay routine information promptly. One can understand that if each client called to speak with an attorney each week, the attorney would spend most of the time on the telephone and be unable to work with files, prepare legal motions or documents, or attend trial and court hearings. You should be therefore cooperative and understanding.

  1. What is a “Letter of Protection,” and how will it affect my case?

A Letter of Protection will protect the bills of your healthcare provider.   If you want your healthcare provider’s bills to be protected and the provider to forebear from the collection process, you will be asked to sign a Letter of Protection for that healthcare provider.

This Letter of Protection will guarantee that your medical bills from the provider shall be paid out of your judgment or settlement in this case.  The issuance of a Letter of Protection may prevent these bills from being negotiated downward in the future and may have some negative impact on medical testimony offered at trial (if any) by the provider.

  1. If I am injured, am I entitled to a financial recovery, even though I was not at fault?

The answer is yes.  However, how much, and whether or not you can collect on that entitlement may be another story.

Over 20 years ago, Florida’s legislature passed the “No Fault Law” to keep non-serious cases out of court.  Hence, in order to file a claim or lawsuit for your pain, suffering, inconvenience and/or mental anguish, you must be diagnosed by a physician (medical doctor, doctor of osteopathy, doctor of pediatric medicine or doctor of chiropractic medicine) with a “permanent injury.”  Without a diagnosis of “permanent injury” your recovery is limited to your out-of-pocket medical expenses and accident-related future medical expenses to the extent they exceed your personal injury protection benefits.  You are also entitled to provable past and future accident-related lost wages to the extent they exceed your PIP benefits.

Sometimes there is insurance (bodily injury insurance) to cover these damages from the person who caused the accident.  If he or she is uninsured or underinsured (i.e. has some bodily injury insurance but not enough to cover your damages), you will need to look to your own policy or the policy of the driver of the car in which you were injured to determine whether there is “uninsured motorist coverage” (“U.M.”) or “underinsured motorist coverage” (“UIM”).  This is insurance that may be used to cover your losses in such a situation.  If you are covered by U.M. or UIM, you will need written permission to settle with the person who caused the accident or his/her insurance company and to obtain your UM/UIM insurers written waiver of subrogation.  This is something your attorney should do for you and is one of the reasons why an attorney should be retained.

  1. When should my lawsuit be filed?

The decision to settle a case without a trial is your decision after receiving all relevant legal advice from your attorney.  If the amount offered is not enough for you to settle your case, you have the right to a jury trial.

In Florida, there are consequences and costs to filing a lawsuit, however.  If and when a lawsuit is filed, we are be busy working in the preparation of appropriate legal motions and responses, preparing for and attending depositions (sworn statements) of both our witnesses and those of the other side, mediations (settlement conferences), and trial preparation including securing the attendance of witnesses, preparation of any required trial briefs and exhibits, and preparation for a trial of the issues.

  1. If a lawsuit is filed, I have heard that I must attend and give a “deposition”. Exactly what is that and how should I prepare for it?

If you have never been to a deposition before you may ask, “What is a deposition”?  Sometimes on television you can see courtroom scenes in which surprise witnesses are called with important testimony.  In the real world courts don’t work that way anymore. In today’s world each side has an opportunity to question the parties and important witnesses of the other side in a question and answer session called a “deposition”.  This is what you have been scheduled for.  Even though a deposition is an official court proceeding, you should not think of a deposition in the way you think of actual testimony in court before the jury.  There are a lot of differences between the two.  For example, if you are in the courtroom, you would be trying to persuade or convince the jury of the believability and importance of your case.  In a deposition, by way of contrast, you are there only to answer the questions put to you by the other side.  You will be placed under oath to tell the truth, and of course, that is the most important thing for you to do.  The other lawyer will ask you questions, but there will be no judge or jury at the deposition.  Your testimony will be treated as the truth for virtually all purposes after you are deposed.

As your lawyer, I will be there with you.  I will be there not only to ask you specific questions but to make sure that the questions the other side asks you are fair, properly worded and not “trick” questions.  I will most likely not ask you any questions at all, because, again we are not there to present your case at that time, but are there only to answer the other side’s questions.

You may ask why they want to take your deposition.  First, the other side does not know you and wants to get your side of the case.  Next, they want to see how you look, how you answer the questions, and in general what kind of witness you will make in your own behalf.  This is important, because if they believe that you are going to be an effective witness, they will place a higher value on your case.

The most important thing that the other side wants is to be able to catch you in a lie or a misrepresentation of the truth.  The attorney taking the deposition will ask you many questions to which they already know the answer but they want to see if you give the correct answers.  If they should happen to catch you in some kind of a lie or misrepresentation, they will be able to point that out to the jury or judge later on, and your case will lose all or most of its value.  Judges and Juries simply do not award substantial money to people who have lied or misrepresented the facts of their case.

You may also inquire about the questions you will be asked?  Because the Florida Rules of Civil Procedure permit the other side to ask almost anything that they want to ask in a deposition, it is impossible to precisely predict what questions they will offer.  However, most depositions cover the following categories:

  1. Background:  Where you grew up, went to school, work history, previous accidents, previous claims or lawsuits filed, and previous injuries or significant other injuries.
  2. Accident facts:  Where you had been, where you were going, what you had observed before the accident, how the accident occurred, and what conversations went on afterwards, etc.
  3. Injury and Treatment:  How you were hurt in the accident, what areas of your body bothered you, what medical treatment you sought, and what treatment has been given.  They also are going to want to know about any pre-existing injuries or treatment that you had received prior to your accident.
  4.  Effects of the injury:  The attorney asking the questions will want to know whether the injury has interfered with your work, how it has effected your home life and activities, and what you have trouble doing now or can’t do now on account of the injury.

You may ask how should I answer the questions asked of or posed to me.  There are two simple rules for answering the questions of the other side.  First, it is very important that you listen to the whole question and make sure you understand it.  If you don’t understand the question, you may say so and the question will be repeated or rephrased.  When you answer, your answers will by recorded by a court reporter.  Please answer the questions asked of you in a direct manner.  Please don’t use the words “uh huh” or “un uhs”, since these expressions cannot be easily recorded and have no value when placed on the record since they can just as easily be interpreted as a “yes” or a “no” answer.  If the answer is a “yes” or a “no” answer, please use “yes” or “no” in your replies.  Please do not nod your head yes or shake your head no without giving a verbal response of either “yes” or “no” to the question.

The second very important rule is that you give only the information that is asked in the particular questions that are put to you.  Keep your answers as short as possible while still answering the question fairly.  Remember, the more you say, the more the other side has to use against you.  Therefore, confine your answer only to the question asked; do not volunteer any information.  If the attorney asked you what color was the sky, you may answer the sky was blue.  Do not volunteer that the clouds were white, that the trees were green and that the birds were singing, and that the children were playing out in the yard.  Keep your answer short and sweet and to the point.  As Officer Joe Friday used to say, give “just the facts ma’am/sir, just the facts.”

During the deposition you may be inclined to ask me questions.  We can go off the record and do this.  Please just tap my shoulder and say, “Mike, can we talk?”  If need be, we’ll go off the record.  Since our conversations in my office or outside my office are confidential and privileged, I am instructing you at this time that I will be raising that privilege and you should not divulge any of what I have said to your or what you have said to me during your deposition.  If we had referred you to a physician, that is privileged and confidential as well.  As a consequence, please just tap my shoulder and say, “Mike, can we talk?” if the question of how you go to Dr. Smith, Jones, is asked.  Again, what you have told me and what I have told you is not discoverable by the defense and it should not be volunteered at deposition by you.

You may also ask what kind of attitude should I have in giving my deposition.  In answering this question you should not think that the other lawyer is your enemy.  In fact, you should be friendly and cooperative in your answers, and it won’t hurt to smile.  The reason for this is that if the other side understands that you are a nice person they will put a higher valuation on your case than if they think you are not going to make a good impression on the judge or a jury.  Of course, if you are relaxed and just being “a nice person” you will feel better and you actually give better answers, keeping in mind the instructions that I have given you.  Please be friendly with the attorney who is taking your depositions.  However, please remember he is not your “buddy.”  Often attorneys will try to get overly friendly with you and make you say things that you wouldn’t ordinarily say at depositions.  The bottom line is, please be warm and cordial.

Additionally don’t try to figure why a certain question is being asked; this will just take your concentration away from answering the question.  Think about the questions before you answer and remember to answer the question fairly but only answer the question that is asked.

On rare occasions I may object or instruct you not to answer the question at all.  If that happens, don’t worry about it.  If I object, let me finish my objection and then answer the question.  It is my job to make proper objections on the record to be preserved for a judge to consider later on.  If I instruct you not to answer a specific question, do not answer that question.

There are some common traps that defense attorney’s use to try and trip people in their depositions. The first area that normally trips deponents up concerns old claims or injuries.  As you know, computers these days contain about everything you’ve ever done.  The insurance companies have access to most computer information and they will dig up any and all insurance claims that you have ever made.  They will also know about previous injuries, and they will know many of your medical conditions, especially those for which you may have had a health insurance claim.  Nevertheless, the lawyer will ask you in detail about these, hoping that you will try to hide or misrepresent information about one of them.  Again, if that happens, the lawyer will be able to point that out to the jury or the judge, to try to prove that you are not a truthful person.  When you are asked about prior injuries or medical conditions, it is very important that you be as complete and as accurate as you can be about previous injuries, accidents, insurance claims and prior medical treatment.  It is of the utmost importance that you do whatever you can to refresh your memory prior to the deposition, speaking with family and friends concerning any injuries you may have received.  The attorney for the insurance company or defendant that will be deposing you will know many of your medical conditions and accidents, especially those for which you have made a motor vehicle, homeowners or health insurance claim.

You may also be asked about any arrests or convictions you may have had.  Again, the above advice about being complete and honest applies.  All information about arrests or convictions is available, and I assure you that the insurance company will have that information.  Don’t try to hide such information or misrepresent it.  If you do, the results will be fatal to your case.  Please note that in Florida, if you have not been adjudicated guilty of an offense, then that offense charged does not constitute a conviction. If you have any questions about this, please let me know, and I will clarify your questions before the deposition.

The attorney taking your deposition will be interested if your activities before your accident have been affected by your injury.  Sometimes clients will say that they cannot do a certain activity now, when what they really mean is that they don’t do the activity very often or that when they try it they don’t do it as well as they did it before the accident.  Be careful about that; you should say that you cannot do a certain activity only if you absolutely cannot, and do not, and have not performed that activity.  Remember, it is very common these days for the other side to “spy” on you and film your activities with a video tape.  It is not uncommon for the insurance companies to video tape you early on in your claim and ask you questions in deposition concerning certain activities you may have been videotaped doing.  They will be delighted, if you say that you can’t do the activity when they have evidence that you can.

In preparing for your deposition you must remember that your manner of dress is important.  Since you are trying to make a good impression, you should dress as if you are going to Court or even to church.  Men should dress in a coat and tie if possible and a woman should be in a conservative outfit appropriate for church.  If it is practical or appropriate to do so in your case, you should visit the scene of the accident before testifying.  As you visit the scene, go over in your mind how the accident occurred or who did what and when.

Finally, in order to summarize my instructions to you on how to act while giving your testimony I would advise you as follows:

Tell the truth. Never lose your temper.  Don’t be afraid of the lawyers. Speak slowly and clearly. If you don’t understand the question, ask that it be explained or repeated until you do understand the question.  Answer all questions directly, giving concise answers and stop talking.   Never volunteer any information.  Wait until the question is completely asked, then answer it and stop talking.  If you can answer a question completely with a “yes” or “no” answer please do so.  And stop talking.  Stick to the facts and testify only to that which you personally know.   Tell the exact truth about your injuries or losses.  Do not minimize or exaggerate.  Testify only to basic facts and do not attempt to give opinions or estimates of time and distance unless you have good reason for knowing such matters.

Additionally, if you don’t know an answer, just say so.  Some witnesses think they should have an answer for questions asked. You cannot know all the facts in your case, and you do yourself a disservice if you attempt to testify to facts with which you are not acquainted.  It is imperative that you be honest and straight forward in your testimony.  Also if you do not recall at the time the question is being asked and you are giving an answer, please tell the attorney that you cannot recall “at this time”.

Don’t try to memorize your story.  Justice requires only that you tell your story to the best of your ability.  You must remember that the most important aspect of your case is you and the appearance that you make.  If you give the appearance of earnestness, fairness and honesty, and if, in giving your deposition, you keep in mind the suggestions made here, you will be taking a great stride toward a successful and satisfactory completion of the litigation of the suit or claim that has been filed in your behalf.

Most people don’t find depositions unpleasant, and there is no reason to be nervous.  If you follow the above advice, you will give a good deposition and help your case.  Above all, tell the truth.

  1. I have read that 90% of lawsuits filed are settled in “Mediation.”  What is Mediation?

Since many people may not be familiar with the legal terminology or the process, the information that follows may be of some help to you on the process, procedure and potential outcome.

First of all, it is important to understand that mediation is not to be mistaken for just another form of arbitration.  The goals of the two differ considerably.  It is sufficient here to observe that arbitration is designed to provide an alternate dispute resolution forum for a limited class of less complex civil cases at the early stages of the case.  In contrast to that program, mediation is designed to serve the interests of the more complex civil case which has not been arbitrated, which has completed most, if not all, discovery requirements and is or ready to be set for trial

  1. Why is a case mediated?

It is important to understand that the Court has coordinated its trial docket in an effort to ensure that case will be tried as scheduled.  However, given the statistical reality that over 80% of all scheduled trials settle prior to the morning of trial, the Court and the attorneys for the parties have a duty to the other cases on its docket to ensure that all possible avenues of settlement in this case are explored prior to trial.

The statistics demonstrate that nearly 70% of all mediated cases settle at the mediation conference.  Settlement rates in Federal Court have been significantly higher.  Consequently, the Florida Supreme Court and the Federal Court for the Middle District of Florida have determined that mediation is the best and most appropriate forum in which to consider the possibilities for settlement in a particular case.

  1. What is a Mediation?

Mediation is a supervised settlement conference presided over by a qualified, certified and neutral mediator who suggests alternatives, analyzes issues, questions perceptions, uses logic, conducts private caucuses, stimulates negotiations between opposing sides and keeps order.

Mediation is also a docket and litigation management tool which has proved successful in securing a high percentage of settlements on an amicable basis without the expense, exposure, and uncertainty of trial.  Mediation has proven to be most effective when it is conducted within 45 days of the scheduled trial date, when discovery is substantially complete, and the parties are fully informed as to their respective positions.  So, if you have seen any new physicians or have received any new bills, please let us know.

The mediation conference is conducted either in a courtroom or conference room.  During the mediation process, private rooms or offices are made available for individual “caucuses,” meetings, if you will, and conferences.

The mediation process itself is intended to be informal in nature, which the actual ebb and flow of the process is structured by the mediator.  Unlike arbitration, which results in an award and possible judgment, the only result of the mediation conference is the agreement of the parties.  Although the mediation process is inherently flexible, as a rule, the following guidelines apply to the conduct of the mediator:

The mediator will:

  1. Be impartial.
  2. Suggest alternative.
  3. Have private meetings or caucuses with the attorneys, parties, corporate representatives, and claims professionals.
  4.  Assist in clearly identifying the issues.
  5. Privately debate each side’s logical basis and perceptions.
  6. Respect confidential and/or privileged information.
  7. Allow the parties to negotiate.
  8. Guide the parties and counsel in finalizing a specific settlement agreement.

The mediator will not:

  1. Act as a judge or arbitrator.
  2. Rule upon questions of fact or law.
  3. Render a decision or award.
  4. Hear testimony.

In order for trial counsel and the parties to include corporate representatives and necessary claims professionals, they are required to appear and participate in the mediation process and must attend the conference with complete authority to compromise and settle the action.  Participants are required to remain and participate in the mediation conference until a settlement is reached, the parties, with the consent of the mediator, agree to continue the mediation conference to a date certain prior to the regular schedule trial date, or the mediator declares an impasse.  As a rule, the mediation process usually lasts somewhere between 2 to 5 hours.

  1. Who are the mediators?

Court appointed mediators have been certified by either the Florida Supreme Court of the Chief Judge of the Middle District of Florida pursuant to Local Rule 9.02. Each mediator has demonstrated the unique qualities required to effectively facilitate the mediation process, and each has already completed the 40 hour Florida Circuit Court Mediation Certification program.

  1. How are mediators compensated?

Unless otherwise agreed by the parties, the mediator is paid between $200 to $250 per hour of service, and the cost is borne equally by the parties. Experience has shown that the average cost of the mediation conference is approximately $200 per party.

  1. What are the advantages of mediation?

Advantage for the Court:

  1. Docket management and control.
  2. Resolves the case without the necessity of additional judicial labor for trial.
  3. The dispute is resolved early and not on the eve of trial, thereby allowing the Court to schedule other cases in the allotted time.
  4. Voluntary settlements as a result of bargaining by the parties usually do not need post-trial enforcement proceedings or appeal and resolve all outstanding issues between the parties.
  5. Citizens and attorneys are more satisfied with the “system.”

Advantages for the Attorneys:

  1. Enables them to negotiate a settlement which may be more favorable than their expected result at trial.
  2. Facilitates negotiation – forces the creation of an event at which both sides must negotiate in good faith.
  3. Accomplishes the goal of the client without a disproportionate expenditure of attorney’s fees.
  4. Client satisfaction – enables the attorneys to deliver a product (resolution of the dispute) favorable to their client with which their client is satisfied.
  5. Provides more effective use of the attorney’s time.
  6. Protection of having the client participate in the negotiation process.
  7. Durable agreement – no appeal – no collection problem.
  8. Prevents settlement negotiation distraction during trial process.

Advantage for the Parties:

Allows them some management control over the resolution of the dispute.

Prevents the unlimited exposure and uncertainty of a trial.

Allows them to exert some informed direct influence over the outcome of the dispute after observing the other attorney, the other party, and hearing a capsule discussion of the case with a neutral outsider.

Avoids the expenses of final trial preparation and trial.

Allows the party to bargain through counsel for certain key elements which are extremely important in exchange for the other elements which are less important.  The Court would make a decision without knowledge of or regard for these key elements.

Each side gets to see the other’s best offer and the parties can decide to take it or litigate.

Enables a party to stop an expenditure of time and personal involvement in the litigation and therefore, exert energies to other business pursuits or other normal activities.

  1. Will my statements at mediation be confidential?

According to the Mediation Confidentiality and Privilege Act, effective July 1, 2004, mediations conducted in the state of Florida are subject to new provisions relating to confidentiality and privilege.

Briefly, the law creates the “Mediation Confidentiality and Privilege Act” that applies to any mediation:

  1. Required by statute, court rule, agency rule or order, oral, or written case specific court order, or court administrative order;
  2. Conducted under the act by express agreement of the mediation parties; or
  3. Facilitated by a mediator certified by the Supreme Court, unless the mediation parties expressly agree not to be bound by the act.

The mediation parties may agree in writing that any or all specified provisions of the act will not apply to all or part of a mediation proceeding.  The terms “mediation participant,” “mediation party,” “subsequent proceeding,” and “mediation communication are defined, the latter as “an oral” or written statement, or nonverbal conduct intended to make an assertion, by or to a mediation participant made during the course of a mediation, or prior to mediation if made in furtherance of a mediation.”  In addition, it should be noted that the commission of a crime during a mediation is not a mediation communication.

Except as otherwise provided, all mediation communications shall be confidential and a mediation participant shall not disclose a mediation communication to a person other than another mediation participant or a participant’s counsel.  A violation of confidentiality may be remedied by a civil action or, if the mediation is court-ordered, may also subject the mediation participant to sanctions by the court, including, but not limited to, costs, attorney fees and mediator fees.  The civil action, which may be brought by any party, for a knowing and willful disclosure of confidential information, could subject the violator to equitable relief and compensatory damages, as well as attorney fees and costs.

Each mediation party has a privilege to refuse to testify and to prevent any other person from testifying in a subsequent proceeding regarding mediation communications.

The law provides exception to confidentiality and privilege in relation to the following communications:

  1. A signed written agreement reached during a mediation (unless otherwise agree)
  2. A communication that is willfully used to plan a crime, commit, or attempt to commit a crime, conceal ongoing criminal activity, or threaten violence.
  3. The making of a mandatory report of child abuse or neglect or elder abuse, neglect or exploitation, solely for the purpose of making the mandatory report to the entity requiring the report.
  4. A communication used to report, prove, or disprove professional malpractice or misconduct occurring during the mediation solely for the purpose of the internal body investigating the misconduct or the malpractice proceeding.
  5. A communication establishing or refuting legally recognized grounds for voiding or reforming a settlement agreement reached during a mediation.

There also is no privilege and no confidentiality if it has been waived by all parties.  Communications subject to disclosure remain confidential and are not discoverable or admissible for any other purpose, unless otherwise permitted by law.  Information that is otherwise admissible or subject to discovery does not become inadmissible or protected from discovery by reason of its disclosure or use in mediation.

Other provisions of the mediation law extend mediator judicial immunity to trainees fulfilling mentor ship requirements for mediator certification by the Supreme Court and provide limited immunity for a mediator in relation to any non-court-ordered mediation within the scope of the Mediation Confidentiality and Privilege Act.

  1. What does a mediator report to the Court?

Within five days of the conclusion of a mediation conference, the mediator files a mediation report indicating whether all required parties were present. The report also indicates whether the case settled, was continued with the consent of the parties, or whether the mediator declared an impasse, which means that the case did not settle.

  1. What if I am injured in a “Slip and Fall” Accident?

If you are injured in a slip and fall, you should report the injury to the owner or occupier of the place where you were injured. Get the names and addresses of any witnesses. Photograph the area and cause of your fall. If the defect was caused by the owner of the property agents or assigns there is liability. If someone else left something for you to trip over, that person is liable. The landlord/renter will be liable, if the person knows of the defect and did not fix it or should have known of the defect through reasonable inspection but failed to act reasonably in conducting the inspection or failed to conduct the inspection. Remember that just because you are injured, someone is not automatically at fault.

  1. If I am injured in a slip and fall who will pay for my bills?

Good question. If you are covered by private health insurance, Medicare, Medicaid or the VA, you are covered, but must repay your insurer from the proceeds of your settlement, if any, for accident related expenses. Sometimes, a landowner will have “medical payments coverage”, usually less than $5,000.00 to pay your accident related medical bills no matter who is at fault. If the accident happens at work, your workers compensation carrier should be liable. Otherwise, you should consult an attorney and ask him about a “Letter of Protection” or find that section on the website.

  1. In Florida, if I am disabled and a Medicare recipient, can a physician legally charge me more than Medicare will allow?

No.  Florida Statute §456.056, Treatment of Medicare Beneficiaries, provides in pertinent part of the following:

(5) Any attempt by a primary physician or a consulting physician to collect from a Medicare Beneficiary any amount of charges for medical services in excess of those authorized under this Section, other than the unmet deductible and the 20 percent of charges that Medicare does not pay, shall be deemed null, void, and of no merit.

  1. So, if I am in an accident, what should I do?

You may have only a limited amount of PIP benefits, so in writing, advise your physician that after your PIP benefits are exhausted, they should bill Medicare for their services after your PIP benefits run out; otherwise you may be forced into litigation over your bill.

  1. Does Florida law define me as a Medicare recipient?

Florida Statute Section 456.056 defines “Beneficiary” as a “beneficiary of health insurance under Title XVIII of the federal Social Security Act.” (42 U.S.C. § 1395 et seq., Health Insurance for Aged and Disabled).

If I become a Plaintiff, and I am a Medicare Beneficiary and sustain injury, who is liable for damages including the amounts that treating physicians charged under contract/letters of protection?

You are liable to your physicians for bills you incur even though the person who caused you injury may be liable to you to compensate you for those damages.  If you assign your claim in writing to your physician, that physician has your claim for the bills you incurred to him on account of someone else’s negligence but this recovery is a limited one.

Pursuant to Florida Statute §465.056 treating physicians are limited to charges authorized by Medicare as found in 42 U.S.C § 1395 et seq., which provides that physicians may charge only a limited amount above the Medicare-Approved Amount when the physician does not accept assignment of the claim.  See 42 U.S.C. § 1395w-4 et seq., 42 C.F.R. §§ 424.56 and 414.48.

Medicare set the limiting charges for years subsequent to 1993 at 115% of the Medicare-Approved amount for unassigned claims.  See 42 C.F.R §414.20 and 42 C.F.R. §414.48 (if the physician accepts assignment of the claim, the physician is limited to only 100 percent of the Medicare-Approved Amount).

Moreover pursuant to 42 U.S.C.A § 1395w-4 (g) no Medicare Beneficiary is liable for payments of any amounts billed for service in excess of the limiting charge.

Physicians who are enrolled with Medicare are bound by agreements not to charge Medicare Beneficiaries individually for services that the individual could have had covered under Medicare. See 42 U.S.C. §1395cc. So, notify your physician immediately that you are a Medicare recipient so that he is not stuck holding the bag for his services or expecting you to make payments that Medicare would otherwise make.

  1. How can a physician go about legally charging me more than Medicare will pay?

If a physician seeks to have a Medicare Beneficiary held liable as an individual for charges that are in excess of the Medicare-Approved Amounts, the physician must meet the requirements of 42 U.S.C. §1395a that mandates a written contract between the Physician and the Medicare Beneficiary must be entered into and signed by both individuals, and that the contract set forth the specific services to be provided, that the Medicare Beneficiary will not submit a claim to Medicare, that the Medicare Beneficiary understands he or she will be responsible for payment of services and that Medicare will not reimburse him or her for those services, that the Medicare Beneficiary acknowledges there exists limits under Medicare regulations limiting charges to specific amounts, that the Medicare Beneficiary has the right to services provided by other physicians who would limit their charges to Medicare-Approved Amounts, and that the physician indicate whether or not he or she is a participant in the Medicare program.  If no contracts that meet these requirements exist, then your physician may not collect more then the Medicare allotted amounts.

In addition to the contractual requirements, the physician must notify Medicare by way of affidavit stating that the physician will not submit a claim under Medicare for services provided to the Medicare Beneficiary for at least two years after executing the contract.  If the physician fails to abide by the regulations and codes under 42 U.S.C. § 1395 et seq, the physician may be subject to sanctions including fines amounting to two to three times the excessive charge, removal from the Medicare program, or refunding of any payments made by the beneficiary that are excessive and assessment of $2,000.00 for each instance of excessive billing.

It is obvious that Medicare does not want Medicare Beneficiaries to be taken advantage of by physicians circumventing the Beneficiaries’ right to have the charges limited by Medicare.

  1. So, how would this work out in an accident case involving a Medicare Beneficiary?

For example, in an accident case, it is not unusual for physicians to bill the injured patient in excess of Medicare paid services because there is a financial incentive to do so. The American Orthopedic Institute billed $35,417.47 over the limiting charges allowed by Medicare for the arthroscopic surgery for knee meniscus tear and related services. Dr. Smith billed $779.44 over the limiting charges allowed by Medicare for a single office visit and Calcium Chiropractic and Rehab billed $2481.28 over the limiting charges allowed by Medicare for chiropractic care and services. Billing amounts for these physicians exceed $46,018.35, which exceeds the Medicare-Approved amounts by at the least $40,000.00. The actual Medicare-Approved amounts equate to only about $7,440.00 for these services.

  1. How do courts limit these recoveries from physicians in Florida?

The Second District Court of Appeal addressed the admissibility of charges exceeding Medicare amounts in Cooperative Leasing Inc. and Domer v. Johnson, 872 So.2d 956, (Flat 2d DCA 2004).  The facts in Cooperative were that a motorist was injured in an automobile accident and the trial court allowed into evidence bills for all medical expenses.  The bills were in excess of benefits paid by Medicare.  The Second DCA ruled that the excessive billing was inadmissible because the plaintiff was not liable for the excessive billing pursuant to Title 42 U.S.C. §1395 and precedent.  In citing the U.S.C., the Second District determined that the plaintiff’s medical bills were paid by Medicare at the Medicare-approved amounts and that the physician could not recover from the plaintiff personally.  The Second District goes on to provide precedent that the plaintiff is entitled to compensation for reasonably valued medical care and found that the Medicare amounts paid to the physicians were customary and reasonable.  This is also the basis for approved amounts under 42 U.S.C. §1395w-4.  Therefore, any amounts in excess of the Medicare-approved amounts would allow the plaintiff to receive a windfall by recovering “phantom damages”. Id, at 959.  In its ruling, the Second District goes on to provide that the difference between what the physicians charged and the Medicare-Approved Amounts are not a collateral source that would be deducted as a set-off post verdict.  Id. At 960.

Moreover, all billing of the above physicians that do not meet the requirements for contracting with a Medicare Beneficiary and/or that are in excess of the Medicare-Approved Amounts are null, void, and of no merit as a matter of law pursuant to Florida Statute §456.056  It is of the utmost importance, therefore that if you are involved in any accident, you let your treating physician know you are disabled and on Medicare, so that you do not create any outstanding bills or bad-will by failing to tell your physician up front to bill Medicare, especially if you are involved in an accident other than one involving a car or other passenger vehicle

  1. If I have been injured in a motor vehicle accident, will you evaluate my case and contact me?

Yes, please complete the intake form provided below.  Once you have completed the form, send it to us electronically to support@disabilityattorney.net or by fax at 813-514-9788, and we will get back with you as soon as possible