Missouri Supreme Court finds that medical malpractice caps on damages are unconstitutional

Missouri, like Florida, has caps on recovery for pain and suffering in a medical malpractice case.   In essence, the law says that no matter what a jury thinks is fair for a victim of medical malpractice, the Legislature will decide what the maximum award will be.  Recently, the Missouri Supreme Court decided that these caps are unconstitutional.   You can read about the decision here


Our justice system is based upon a jury of our peers making fair decisions after hearing all of the evidence.  The idea of “caps” on damages completely deprives the jury of its right to make decisions and, instead, allows government officials to decide outcomes in our courtrooms.


Victims of medical malpractice and their lawyers have been fighting medical malpractice caps throughout the country in an effort to return the decision of damages to the jury.  Presently, in Florida, we are awaiting a decision from the Florida Supreme Court where a victim of medical malpractice is challenging the caps on pain and suffering damages.  All of us who represent these victims are hopeful that the court here in Florida will do what has just been done in Missouri and strike down the caps as unconstitutional.


Just to illustrate the point as to why these caps in Florida are so grossly unfair, you need to examine them from the perspective of a victim.  Ask yourself, what is the monetary value of pain and suffering if you are left paralyzed from the neck down because of a medical error?  What is the value of your pain and suffering if you lose arms or legs because of a medical error?  What is the value of your pain and suffering is you or your child suffer irreversible brain damage because of a medical error?  Certainly, a cap of $750,000 in pain and suffering against a doctor and a cap of $1.5 in pain and suffering against a hospital seems grossly inequitable given the life-altering nature of these types of injuries.  Still, no matter what a jury awards a victim with these injuries, the caps require the trial judge to reduce the verdict down to these damage caps.


Missouri has determined these caps are unconstitutional and, already, the Legislature is discussing an amendment to the State Constitution in order to negate the decision of the Court.  An amendment to the Constitution that restricts our access to the Courts?  Is that really the answer?  If a Court determines that these caps violate the Constitution, then one must ask why a State Legislature still be trying to enact these laws.  Clearly, victims rights are far less important to these Legislators than the special interest lobbyists that pour money into tort reform campaigns.


The bottom line is that a jury is in place for a reason.  They make the tough decisions based upon the evidence presented.  A doctor and a hospital have a fair opportunity to explain to a jury why a damage award should be lower, and if they fail in that argument, a jury’s decision should be respected.  Caps on damages send a message that we do not trust our juries to make the correct decisions.  Simply put, that message is wrong.  As a lawyer that represents victims who suffer catastrophic and life changing injuries, I hope to see these caps on damages removed from each state’s laws.



Reversed and remanded–The Leto Law Firm wins an appeal in the Fourth DCA

You can read the decision of the 4th DCA here


The Leto Law Firm was retained in late 2011 to assist a large foreclosure law firm in an appeal.  The case involved a foreclosed home that was supposed to be put up for public sale after the foreclosure process was completed. At the time of the foreclosure, the bank was owed $787,000.  The actual fair market value of the property at the time of foreclosure was $365,000.


Prior to a foreclosed home being sold on the courthouse steps, Florida law requires that notice of the foreclosure sale must be published once a week for two consecutive weeks in a newspaper of general circulation.  The purpose of this publication requirement is to place all interested parties on notice of the pending sale.


In this case, the notice was never published and the bank was never made aware of the sale date.  As a result, a disinterested third party successfully bid on the property for $1,622.  That’s right, a third party came in and bought a $365,000 property for $1,622.  When the bank became aware of this, an immediate motion was filed requesting the Court vacate the sale and allow the bank a fair opportunity to bid on the property.  That motion was denied by the trial court in Palm Beach County, Florida.


At that point, the law firm handling the case requested that we take over and file the appeal.  We argued that the sales price was grossly inadequate and that the trial judge abused his discretion in allowing the sale to stand.


Today, the Fourth District Court of Appeals issued its ruling and sided with us.  The trial court’s decision was reversed and the property will be reset for sale under circumstances that will allow for a fair and open bidding process for all parties.



Check out Justin Leto’s weekly appearance on nationally syndicated radio talk show America Now with Andy Dean

Every Wednesday at 7Pm EST, Justin Leto appears as a guest on America Now with Andy Dean.  Andy Dean is a conservative radio talk show host and each week, Justin and Andy discuss the trending legal topics of the week,.  Inevitably, there is heated debate given the considerably differing political views of Andy and Justin.  All is in good fun, of course.  Check out this week’s segment:


Justin Leto on America Now with Andy Dean 8/15/12


During this week’s segment, Andy and Justin discussed the following topics:


1.  Mitt Romney’s choice of Rep. Paul Ryan.   There is no doubt that Paul Ryan was a bold choice.  But was it a smart political move?  No!  Mitt Ronmey’s views are just too different from Paul Ryan’s views on items such as the budget, Medicare, federal bailouts, and wartime decisions.  While our discussion did not get deep enough to discuss Paul Ryan’s views on victim’s rights, it is clear from his voting record that he is a true-believer in federal tort reform and destroying the rights of victims to have free access to the courts.


Politicians have been very successful in painting lawsuits as the evil of society, driving up insurance costs while harming doctors, hospitals and the everyday citizen.  However, the facts show that these arguments are false and have been used as a tool to promote a pro-business, anti-consumer agenda.  By eliminating the rights of the citizens of this country to have free access to the courts, the net result will be huge profits for big businesses with absolutely no oversight.  Businesses will have no accountability as they will not be obligated to fairly compensate victims of negligence.  The words “tort reform” have become a rallying cry aimed at tricking the American public into believing that this is in their best interest.  At the same time, the words “trial lawyer” have been demonized and described as the problem with society.  Here at The Leto Law Firm, we are proud to represent victims of medical malpractice, auto negligence, and defective products.  And we firmly believe that all citizens should have the right to free access to the courts with a jury of their peers to decide the outcome.  Tort reform removes that constitutional protection and replaces it with strong-arm government intervention.  All citizens deserve access to their courts, not further restrictions on their rights.


2.  Drew Peterson murder trialDrew Peterson is accused of killing his 3rd wife.  During his murder trial, the judge made a pretrial ruling prohibiting the prosecutor from introducing evidence of a protective order sought by his 4th wife.  Despite the judge’s order, the prosecutor asked questions directly related to the protective order.  As a result, the defense asked the judge to declare a mistrial with prejudice, meaning that Drew Peterson could never be tried again for this alleged murder.

When a judge issues a ruling before trial and instructs lawyers that certain evidence will not be shared with the jury, that ruling needs to be taken seriously.  Violation of such an order can result in the judge dismissing the case or imposing severe sanctions.  As lawyers, we do not always agree with the rulings of a judge, but that is why we have the ability to appeal the case after the trial is over.  In the Drew Peterson case, the prosceutor’s decision to violate the judge’s order was a terrible and inexcusable blunder.  He blamed his error on a mistake in reading pre-prepared questions off of his notes.  In my estimation, a silly excuse.


3. George Zimmerman Stand Your Ground Defense dropped.  Mark O’Mara, defense attorney for George Zimmerman, has elected to drop the stand your ground defense and instead opt to go with a traditional self-defense claim. This defense is more logical based upon the facts of the case.  Under Florida’s controversial stand your ground defense, you do not have a “duty to retreat” if you feel your life or safety are in danger.  Instead, you can use deadly force to protect yourself.  In Zimmerman’s case, he claims he was being held down on the ground and beaten when he fired his gun at Trayvon Martin.  In order for Zimmerman’s story to have any credibility, the stand your ground defense had to be abandoned because it contradicts what Zimmerman claims occurred.  Under the circumstances that Mr. Zimmerman claims, he could not have retreated even if he wanted to, so the defense of stand your ground would not apply.

Will YOUR car insurance company defend the driver that caused YOUR injuries? Seems illogical, but it happens all the time

Car insurance is an interesting animal.  We are required to have it if we want to drive our cars, and it is supposed to be there to protect us if (a) we need to repair our car, (b) we cause damage to someone else’s car, and (c) if we injure or kill someone in an accident.  However, there is a fourth area of protection that many people do not realize exists which can be very important if you are injured in an accident.  It is called Uninsured or Underinsured Motorist Protection.  Essentially, it provides insurance coverage for bodily injuries and pain and suffering caused by an other driver that either has no insurance or has inadequate insurance to cover your injuries.  Basically, your insurance company “steps into the shoes” of the uninsured driver in order to provide you with payment for your injuries.


Uninsured motorist insurance is not mandatory and is oftentimes costly.  The insurance company is required to provide you with the option to buy uninsured motorist protection and if you choose to reject it, you must sign a form indicating you were told about the option and rejected it. (You can take a look at the rejection form here)  While uninsured motorist coverage can be costly, it is an extremely important level of protection needed for your family.  Florida has a terrible problem with uninsured drivers and if you are unfortunate enough to be injured in accident caused by an uninsured driver, you could be left with nowhere to turn to pay for your medical bills, lost time at work, and pain and suffering.  With uninsured motorist coverage, your insurance company will provide that much needed protection.


However, what happens when you request that your insurance company pay a claim for injuries sustained by an uninsured driver?  You would think that your insurance company would be there to protect you and pay you for your losses, especially given the added cost of purchasing uninsured motorist coverage.  For some insurance companies, this is true.  They take care of their insureds and pay claims in a fair and honest manner.  For other insurance companies, the experience of making your claim may be just as unpleasant as the accident itself.


A recent example of such a situation made national headlines when Progressive Insurance refused to pay a claim made by the family of a young woman that was killed in an accident with an uninsured driver.  Instead of paying the claim, Progressive hired lawyers and proceeded to take the position that the uninsured driver was not at fault and, instead, Progressive’s own insured driver (the deceased young woman) was at fault.  The case proceeded to trial and, at trial, the uninsured driver sat at the same table as Progressive’s lawyers, spoke with Progressive’s lawyers in the hallway at breaks, and Progressive defended the case as if the uninsured driver was their client instead of the family of the deceased young woman.  You can read more about this case at Abovethelaw.com, here.


Sound crazy?  It is not crazy at all.  In fact, it is common and happens all the time.  In a case like the one described here, the insurance company took a position that they often take: a position of defense and damage control.  Progressive obviously felt that they had a chance of prevailing and proving that their insured driver caused the accident, thus obviating their need to pay the claim.  And sometimes, these defenses are successful.  In this particular case, the defense failed and the family was awarded $760,000.00.


Here at the Leto Law Firm, we are very experienced in handling auto injury cases as well as uninsured motorist cases.  It is quite common, and more often the case than not, that an auto insurer will force an injured person into litigation and to trial before paying a claim.  This is the rule, not the exception and requires an auto injury lawyer that is experienced in handling these situations.  It is sad enough that the family of this young girl passed away in a tragic car accident, but to have to defend the case against the same insurance company that you have paid premiums to for years only makes things that much worse.

Justin C. Leto named to Florida Trend Magazine’s Legal Elite 2012

The Leto Law Firm is pleased to announce that Justin C. Leto has been named to Florida Trend Magazine’s list of Legal Elite for 2012.  Of the approximate 67,000 lawyers that are members of the Florida Bar, this list comprises only 2% of lawyers in Florida.

Medical Malpractice–What you need to know before you pursue a case

Medical malpractice is a phrase fraught with controversy.  Politicians love to invoke “medical malpractice reform” as a key platform to reducing our insurance rates and improving health care in this country.  They have done an incredible job at convincing the public that medical malpractice cases are bad for society and that doctors deserve a special level of immunity when performing their jobs that no other profession is afforded.  The end result is an American society that is tricked into believing they are doing the “right thing” when they go to the polls and vote in favor of medical malpractice reform.  They blame us lawyers for making it expensive to get health insurance and the only perceivable way to remedy this problem is to allow doctors to operate (pardon the pun) with impunity .  In the end, the doctors and hospitals are given a green light to make medical errors with no realistic concern that they will be held accountable for their actions.  And the people that are harmed are left with little, if any, recourse.  The ironic, and disturbing, facts is that the people that vote for medical malpractice reform often regret that vote when they realize the harmful effect it has on their own case, when a doctor makes a medical error that harms them or a family member.


When hiring a medical malpractice attorney, the attorney must understand the pitfalls and issues that the case faces in order to properly strategize.  The laws in this area are intricate, complicated and strict; requiring a lawyer that can navigate successfully through the shark filled waters.


Here are some examples of the issues which face medical malpractice cases that are unique to ONLY medical malpractice cases:


1.  Medical malpractice cases cannot be filed until the lawyer has complied with Fla. Stat. sec. 766 and has properly investigated the claim.  This requires that the lawyer gather all medical records relevant to the case, have those records sent to an expert to analyze, and procure an expert affidavit from the expert confirming that reasonable grounds exist to initiate a medical malpractice case against the doctor or hospital.


2.  The expert hired by the lawyer has to be in the “same or similar specialty” as the doctor/health care provider that is being sued.  In other words, if you are suing an orthopedic surgeon, than your expert has to be an orthopedic surgeon.  If you are suing an emergency room physician, your expert has to be an emergency room physician.  If you have an expert that is not in the “same or similar specialty”, your case can be dismissed for failing to comply with the legal requirements.  There are exceptions which your medical malpractice lawyer should be aware of.  For instance, a doctor that practices in a hospital setting can usually testify against a nurse.  Similarly, a neurosurgeon that performs spinal surgery can usually testify against an orthopedic surgeon that performs similar surgery.  It is imperative that the lawyer handling these cases understand these specific requirements before starting the case.


3.  After hiring the expert and procuring a favorable affidavit, the lawyer for the injured person needs to send a “Notice of Intent to Initiate Medical Malpractice Litigation” to the defendant doctor/hospital.  This Notice of Intent must be sent by Certified Mail and must contain a copy of the affidavit by your expert.  The return-receipt green card which is returned to your lawyer by the U.S. Post Office is critical evidence that must be maintained to later prove that you have complied with this section of the statute.  Without the green card proving that the Notice of Intent was received by the doctor/hospital, the defendant can file a motion to have your case dismissed for failing to comply with the statute.


4.  Once the Notice of Intent has been received by the doctor/hospital, there is a 90-day investigatory period where the doctor/hospital and their insurance company has the right to perform their own investigation into the case.  This is called Presuit. During this 90-day period, a lawsuit cannot be filed.  Instead, the doctor or hospital’s lawyer can request information from you, including medical records, tax returns and employment records that will allow them to analyze the merits of your case.  At the conclusion of this 90-day period of time, the defendant can either (a) admit liability and pay your damages, (b) deny liability and provide an affidavit from their expert that states there are no reasonable grounds for a malpractice case, or (c) request that you enter into non-binding arbitration.  9 times out of 10, the defendant denies liability.  You are then free to sue.


5.  What happens if the defendant requests non-binding arbitration?  At this point, the defendant agrees to admit they are at fault for the injury. The only question at arbitration is your damages.  The key point to remember is that when a defendant requests arbitration, you can reject that request. However, if you reject that request, your non-economic damages (otherwise known as pain and suffering) is limited at trial to $350,000.  In other words, there is a penalty to rejecting arbitration.  If you accept arbitration, the pain and suffering damages is limited to $250,000 per claimant, plus a 15% additional charge to the defendants for attorney’s fees.  In either scenario, your economic damages (meaning your medical bills, loss of pay, future care, etc.) are all preserved.  But you are severely limited on pain and suffering.


6.  What happens if the defendant rejects the claim and a lawsuit is filed?  Once you can file suit, everything proceeds like a regular lawsuit.  However, these cases take far longer and cost far more money than they average personal injury lawsuit.  And the defendants are more stubborn than the average defendants.  This makes for a case that can be lengthy, emotionally draining, and very expensive.


The bottom line is that medical malpractice is a very specialized field of practice that requires a medical malpractice attorney that is experienced in the intricacies of these laws.  The most minor misstep can cause the entire case to be dismissed or lost at trial.

Justin Leto’s weekly appearance on Nationally Syndicated radio talk show, America Now with Andy Dean

My weekly Wednesday appearance with nationally syndicated conservative radio talk show host Andy Dean from August 10, 2012.


Listen Online


Andy and I discussed the following topics:


1.  Execution of mentally handicapped Texas man–In the case of Atkins v Virginia, The United States Supreme Court decided that people that are mentally handicapped cannot be executed because it is cruel and unusual punishment.  However, the Court left the decision of what is considered “mentally handicapped” to the States.  Texas has been notorious for executing people with IQs which indicate they are mentally handicapped.  Andy and I debate whether Texas applies the law fairly or whether they make it virtually impossible to avoid execution despite clear mental handicap.


2.   The recent Super PAC ad released by Priorities USA, a pro-Obama Super PAC, linking Mitt Romney to the death of a fired worker’s wife–In the case of Citizens United v. Federal Trade Commission, The United States Supreme Court decided that corporation could make unlimited political donations to campaign Political Action Committees, otherwise known as Super PACs.  This decision has caused some of the dirtiest campaigning this nation has even seen because there is no limit to the amount of money that can be spent smearing the other side.  Andy and I debate the recent Obama Super PAC ad which improperly asserts that a woman died of cancer because of Mitt Romney’s decisions at Bain Capital.  The Super PAC is wrong for releasing this ad, but the real problem we face as a country is the unending cash which allows this type of campaigning.  Limiting campaign contributions would put an end to all of this.


3.  Prisoner sues Federal Bureau of Prisons for disallowing his jigsaw puzzles, claiming the decision violated his right to freedom of expression–A federal prisoner claimed that he should be permitted to put together jigsaw puzzles because the puzzles, when constructed, were a constitutionally protected form of expression.  The federal courts rejected this ridiculous, but creative, argument stating that even if the jigsaw puzzle was expression when it was completed, there was no right under the First Amendment to put together jigsaw puzzles.  Yes, this case actually does exist.  Andy and I discuss it.


4.  The Obama Admisnitration told police to stand down on Occupy Wall Street protesters–In recent emails, there is evidence that the Obama Administration told police to stand down and allow Occupy Wall Street protesters to break curfew laws.  Andy and I discuss it.  Here is a link to an article about the story.  http://www.dailymail.co.uk/news/article-2185502/Revealed-Obama-administration-told-police-stand-Occupy-protesters-Portland.html


5.  Nancy Kerrigan’s brother has asked to go back to prison rather than serve a difficult and expensive probation sentence–Andy and I discuss whether the Courts can deny a convicts request to serve out his time in prison rather than abide by draconian probation terms.  The answer…the Courts, and not the convict, decide how sentences are served.  Here is a link to the article.  http://www.nydailynews.com/news/national/nancy-kerrigan-brother-convicted-2010-death-father-back-jail-serve-rest-sentence-article-1.1131371




Justin C. Leto named to SuperLawyers Magazine

The Leto Law firm announces Justin Leto’s selection as a 2012 Super Lawyers Rising Star.  This is the 4th consecutive year that Mr. Leto has been named to this prestigious list of Rising Stars in the Florida legal community

All Florida drivers should have Uninsured/Underinsured Motorist protection

Many of the people that drive on Florida’s roadways do so without any liability insurance.  And many who have insurance carry the absolute minimum required by law.  What does this mean for you?  It means that, in the event you or a family member is injured in a car accident, there is a significant chance that the cost of your injuries will be higher than the amount of available insurance from the at-fault driver.  I see this happen regularly.  Someone comes to me after being involved in a car accident.  They are injured.  They have medical expenses, lost wages, and pain and suffering.  However, the driver that hit them either has no insurance or minimal insurance.  In many instances, the medical bills, alone, are higher than the available insurance from the at-fault driver.  And in the majority of these cases, the people that suffered injury do not have uninsured motorist coverage on their own insurance policies.  As a result, they are left with bills, lost time at work, and inadequate compensation.

What can you do to prevent this from happening to you?  The answer is simple.  Call your insurance agent and tell them that you want uninsured motorist coverage that matches your liability coverage.  Uninsured motorist coverage is insurance that you purchase yourself that will help compensate you if you are involved in an accident with someone that is uninsured or underinsured.  In essence, your insurance company “stands in the shoes” of the at-fault driver.  Your insurance company becomes responsible for all damages that would otherwise have been the responsibility of the at-fault driver.  This coverage is not very expensive but it will make the world of difference if you are involved in an accident with one of Florida’s many uninsured drivers.

Medical malpractice and the hurdles of Florida law (rights of survivors under Florida’s medical malpractice laws)

While the great majority of Florida hospitals, doctors and medical professionals provide excellent care to patients, there are still some instances where errors are made that have serious and catastrophic consequences for patients.  If you or a loved one is involved in one of these unfortunate medical errors, it is important to understand the intricacies of Florida’s medical malpractice laws.  The laws are written to benefit insurance companies, hospitals and doctors, not patients.  In fact, the laws in Florida have made it very difficult to pursue a medical malpractice case.  So, its important to know what your rights are and what the law will allow.

The one area that I find most difficult to explain to potential clients is why, after a loved one has died as a result of poor medical care, are they not permitted to sue the doctor or hospital.  The short answer is that the Florida medical lobby is strong in Tallahassee.

All too often, I have had a potential client come to me and tell me about a loved one that has died as a result of medical malpractice and I have been forced to turn the case down, even though the malpractice was egregious and led to someone’s death.  The reason for this is that, under Florida law, when someone dies as a result of medical malpractice, there are only certain, specifically defined individuals that can bring a case for the loss of the loved one.  These specific family members are as follows:  (1) a child under the age of 25, (2) an adult child that is dependent on the deceased for financial support, (3) a spouse, and (4) a parent of a child under the age of 25.  If a loved one falls within any other category, there can be no claim under the law.  It is a sad reality and, unless the laws are changed, this is how things will remain.

In any other accident, if you are not married and do not have a child under 25, your lineal relatives can bring a claim.  Your parents or your siblings can bring a claim on your behalf.  But not in medical malpractice.  As part of the tort reform process, and thanks to a strong lobby in Tallahassee, the laws for medical malpractice claims are different than other cases.  The only way this will change is if the Legislature recognizes that the people desire change.

I will never forget one client that came to my office about 3 years ago.  His fiancée, who was an otherwise healthy 55 year old woman, suffered an asthma attack.  The doctors gave her the wrong medication which made the condition go from serious to life threatening.  By the time they realized the mistake they made, it was too late, and the woman died.  The man who came to my office had been involved in a relationship with this woman for 20 years.  They loved together, they both had children from prior marriages and shared family times together.  But they just decided not to formally marry.  Instead, they felt comfortable calling each other “fiancée.”  So, when she died as a result of malpractice, since they were not formally married, and he youngest child was 26 years old, there was absolutely nothing that could be done in court.

This is the sad reality of the medical malpractice laws in Florida.  They are written to favor insurance companies and medical professionals without equal care and consideration to victims of malpractice.  And this is all done under the shroud of “tort reform” and the threats of higher healthcare premiums.  The truth is, everyone deserves their fair day in Court and laws should be consistent across the board.  As it stands today, consistency is not part of the system.  And as long as that is the case, I will have to deliver the news to other loving families that they cannot pursue their claims because they do not fall within the strict parameters of Florida law.