In addition to statute of limitations restrictions, there are defenses that may be used to combat a wrongful death suit. The available defenses are limited to those that could have been made against the decedent had he lived and brought his or her own claim for personal injuries. The main defenses are causation, comparative negligence, and imputed comparative negligence. If either of these defenses is viable, it may bar a plaintiff from recovery or reduce the amount of damages awarded.
Causation
In order to hold a defendant responsible for wrongful death, you must prove that the defendant’s conduct was the cause of the decedent’s death. The defendant does not have to be the sole cause of death, but they must be implicated somehow. There has to be at least be a connection between the defendant’s conduct and the injury, such that the injury would not have occurred without the defendant’s actions.
Here is an example: If a person was killed on Super Fun Land’s amusement ride in part due to improper maintenance of a seat belt, but also because another rider pushed the decedent off the seat, Super Fun Land may still be found liable for damages.
Often, the period when the fault occurred and when death results can take seconds, as in the case of a car accident where a victim dies at the scene but it can also be a matter of months, as where a doctor prescribes the wrong medication that over time results in the patient’s death. The period between the fault and the injury, however, is not a controlling factor necessary to show proximate cause. For example, if a decedent died due to injuries he received in an accident three months ago, the negligent wrongdoer is still liable.
The continuous causal connection between the fault and the injury is the important element necessary to prove causation in a wrongful death suit. The continuous causal connection is a direct line that links the fault to the injury. The line represents the sequence of events that occur from the point of fault to the point of injury. In a car accident case, the defendant’s car crashed into the victim’s car and the victim died. In that instance, there was an obvious connection between the fault (the auto crash) and the injury (death).
The defendant will not be found responsible if there is no direct causal connection. If prior to death, the decedent did not exercise reasonable care in obtaining treatment for the injury, it might be found that the proximate cause of the decedent’s death was not due to the defendant’s conduct or activity, but rather due to the decedent’s own actions.
Here is an example: A person gets a serious head injury and does not get immediate medical attention. After trying to deal with the injury themsevles, the person goes to the hospital. While at the hospital, the person dies from his or her injuries, while the hospital was delayed in trying to diagnose the injury. Although, the hospital may have been negligent in its treatment, the proximate cause of death may be found to be the person’s failure to seek medical attention if earlier treatment may have prevented his or her death.
Comparative Negligence
Comparative negligence is conduct by the decedent that contributed to his or her own death. Here is an example: A person riding a bicycle at night without brakes or light reflectors who is later struck and killed by a truck may be comparatively negligent.If a decedent is comparatively negligent, the amount of any damages awarded may be reduced by the percentage of fault assigned to the decedent. If the decedent is found to be 50% at fault, their damages awarded would be reduced by 50%. The defense of comparative negligence, however, is a fact for the jury to consider and it generally cannot be determined until after a case begins.
Imputed Comparative Negligence
In some instances, one of the beneficiaries may be comparatively negligent or responsible for the decedent’s death. In some states, if one beneficiary is partially or wholly at fault in the decedent’s death, the other beneficiaries cannot sue for wrongful death. In Florida, however, only a beneficiary who is partially at fault cannot recover damages. If a suvivor is found to be negligent, the non-negligent survivor’s recovery cannot be reduced due to another survivor’s negligence. Frazier v. Metropolitan Dade County, 701 So.2d 418, 420. (Fla. 3d DCA 1997).
Tuesday, October 27, 2009
Friday, October 23, 2009
Damages for Wrongful Death
Damages in wrongful death cases are intended to compensate for losses resulting from the death of a family member. Some losses are measurable a widow in a wrongful death suit could seek to recover the financial support that she would have received had her spouse lived. Other damages are more general and abstract in nature.
Types of recoverable damages include:
Direct Expenses: medical bills and funeral cost.
Loss of Companionship: what the person who died would have emotionally provided to a relationship, and the mental pain and suffering resulting from the decedent’s death.
Punitive Damages: what amount the defendant should be punished for his or her action resulting in the victim’s death.
Loss of Benefits: what the person could have received in pension/retirement benefits had they lived.
Loss of Future Earnings: what the person who died would have earned in salary if he or she had lived.
Amount of Damages
Calculating damages is a complex process involving multiple factors. Some factors include (1) how dependent the plaintiff was on the decedent; (2) the nature of the relationship with the decedent; (3) the anticipated lifespan of the decedent, (4) the anticipated earnings and other benefits of the decedent, and (5) the presence of any comparative fault. Often, determining the appropriate amount of damages for a particular element can be difficult. For example, when addressing damages for loss of companionship, a jury must attempt to come up with a dollar amount for the emotional loss you suffered from the decedent’s death.
An important element in wrongful death damage calculations is in estimating expected or future income losses. Future losses are the amount of earnings and benefits the decedent would have earned if he or she had lived. The common practice is to take the victim’s earnings at the time of his or her death and calculate the remaining years until retirement (or expected death) to determine future loss of earnings.
Here is an example: Suppose a spouse, 35 years of age, was earning $25,000 a year at the time of his death. Since he was not expected to retire or die for another 35 years, his yearly earnings at the time of his death would be multiplied by the number of years he was expected to work before retirement or expected death ($25,000 X 35 years). In this instance, his future loss is $875,000.
This is only a simple explanation of how future loss calculations are made; most of the time these calculations can get very complicated. In most cases, a life expectancy table is used to estimate the number of years the decedent would have lived had they survived. Instead of just using retirement age as a standard for life expectancy, a life expectancy table may consider other factors that may increase or decrease the number of years the decedent would have been expected to live, which would then affect the amount of damages you would receive for future loss.
Present Value
When using a life expectancy table to calculate future losses, courts will often reduce the total future loss to a present dollar value. Because most wrongful death damage awards are paid in a lump sum, a beneficiary essentially receives the total amount of earnings and benefits the decedent would have made over the course of his/her life, reduced to a single amount which is discounted to present dollars.
How is present value calculated?
In order to calculate present value, the future loss is first calculated using the life expectancy table. Once the future loss amount is calculated, it is then discounted using a mathematical table. The mathematical table estimates today’s value of one dollar in the future based on the number of years the decedent was expected to live and an agreed upon annual interest rate. After that is determined, the estimate from the table is multiplied by the decedent’s yearly salary.
The purpose for using present value is that a successful plaintiff will receive a sum that, if invested at a reasonable interest rate, should equal the value of the future loss amount and cover expenses that may eventually arise if it is conservatively invested. Unfortunately, figuring out the present value of future loss is not as simple as it first appears.
Here is an example: A spouse works in a department store earning $20,000 a year. Assuming he works there for the next 40 years, he will make a total of $800,000 by the 40th year. The spouse suddenly dies as a result of a wrongful death. The surviving spouse would recover a lump sum payment designed to compensate her for the $800,000 loss, discounted to present dollars.
Types of recoverable damages include:
Direct Expenses: medical bills and funeral cost.
Loss of Companionship: what the person who died would have emotionally provided to a relationship, and the mental pain and suffering resulting from the decedent’s death.
Punitive Damages: what amount the defendant should be punished for his or her action resulting in the victim’s death.
Loss of Benefits: what the person could have received in pension/retirement benefits had they lived.
Loss of Future Earnings: what the person who died would have earned in salary if he or she had lived.
Amount of Damages
Calculating damages is a complex process involving multiple factors. Some factors include (1) how dependent the plaintiff was on the decedent; (2) the nature of the relationship with the decedent; (3) the anticipated lifespan of the decedent, (4) the anticipated earnings and other benefits of the decedent, and (5) the presence of any comparative fault. Often, determining the appropriate amount of damages for a particular element can be difficult. For example, when addressing damages for loss of companionship, a jury must attempt to come up with a dollar amount for the emotional loss you suffered from the decedent’s death.
An important element in wrongful death damage calculations is in estimating expected or future income losses. Future losses are the amount of earnings and benefits the decedent would have earned if he or she had lived. The common practice is to take the victim’s earnings at the time of his or her death and calculate the remaining years until retirement (or expected death) to determine future loss of earnings.
Here is an example: Suppose a spouse, 35 years of age, was earning $25,000 a year at the time of his death. Since he was not expected to retire or die for another 35 years, his yearly earnings at the time of his death would be multiplied by the number of years he was expected to work before retirement or expected death ($25,000 X 35 years). In this instance, his future loss is $875,000.
This is only a simple explanation of how future loss calculations are made; most of the time these calculations can get very complicated. In most cases, a life expectancy table is used to estimate the number of years the decedent would have lived had they survived. Instead of just using retirement age as a standard for life expectancy, a life expectancy table may consider other factors that may increase or decrease the number of years the decedent would have been expected to live, which would then affect the amount of damages you would receive for future loss.
Present Value
When using a life expectancy table to calculate future losses, courts will often reduce the total future loss to a present dollar value. Because most wrongful death damage awards are paid in a lump sum, a beneficiary essentially receives the total amount of earnings and benefits the decedent would have made over the course of his/her life, reduced to a single amount which is discounted to present dollars.
How is present value calculated?
In order to calculate present value, the future loss is first calculated using the life expectancy table. Once the future loss amount is calculated, it is then discounted using a mathematical table. The mathematical table estimates today’s value of one dollar in the future based on the number of years the decedent was expected to live and an agreed upon annual interest rate. After that is determined, the estimate from the table is multiplied by the decedent’s yearly salary.
The purpose for using present value is that a successful plaintiff will receive a sum that, if invested at a reasonable interest rate, should equal the value of the future loss amount and cover expenses that may eventually arise if it is conservatively invested. Unfortunately, figuring out the present value of future loss is not as simple as it first appears.
Here is an example: A spouse works in a department store earning $20,000 a year. Assuming he works there for the next 40 years, he will make a total of $800,000 by the 40th year. The spouse suddenly dies as a result of a wrongful death. The surviving spouse would recover a lump sum payment designed to compensate her for the $800,000 loss, discounted to present dollars.
Tuesday, October 20, 2009
Automobile Damage FAQ
Car Repair Questions
Can I control whether my car is repaired or replaced?
How is the market value of my car determined?
What if I am “upside down” on the loan for my car?
Can I choose my own repair shop?
What kind of parts will be used in the repair?
What if my car already had some damage before the accident?
Will I have to pay the towing and storage costs?
What about license and registration fees that I had to pay to drive the car?
Rental Car Questions
What if I need a rental car? Do I have to pay for it while my car is being repaired?
What kind of rental car am I entitled to?
Should I purchase any extra insurance on the rental car provided to me?
Can I control whether my car is repaired or replaced?
Like most individuals, not having the use of your car due to an accident is a major inconvenience. Normally, the insurance company has the option to either repair or replace your vehicle, depending on whether it costs less to replace your vehicle than to repair it. If this is the case, the insurance company will declare your vehicle a “total loss,” and take action to replace your vehicle. If your car is declared a “total loss,” the insurance company buys your car for its market value, which may be determined by a source such as the Kelley Blue Book. If you wish to keep the wrecked car, you may purchase it back from the insurance company for its salvage value. The insurance adjuster can deduct the salvage value from the settlement and you can keep the car if this is the case, you may choose to use your own money to repair your car to bring it back to a safe and drivable state.
Often the situation is reversed, and the insurance company chooses to repair a vehicle rather than replace it. In this case, if you are concerned about the safety of the repaired vehicle, you should contact our office to discuss your options.
How is the market value of my car determined?
You are entitled to recover the “fair market value” or the “actual cash value” of your vehicle immediately before the accident. One common source used to estimate fair market value is the Kelley Blue Book. Other sources of information are the local newspaper or the Auto Trader, which may list the for-sale price of cars of the same make, model, and year as yours. Occasionally, an expert vehicle appraiser is used to help prove the value of your vehicle.
What if I am “upside down” on the loan for my car?
If you are upside down on a loan, it means that you owe more money on the loan than the fair market value of the car. Unfortunately, if your vehicle is a total loss, the insurance company is not required to pay more money to you simply because you are “upside down” with your car loan. They are only required to pay the “fair market value” of your car.
Can I choose my own repair shop?
Yes. You are allowed to take your car wherever you wish to have it repaired, however the cost of the repair is not always determined by the estimate given by the repair facility of your choosing.
What kind of parts will be used in the repair?
You have the right to demand that only original manufacturer parts be used in the repair, so if your car is a Saab, you should receive genuine Saab parts. Your car was likely not brand new at the time of the accident, so the mechanic repairing your car may choose to use refurbished or reconditioned parts.
What if my car already had some damage before the accident?
Your vehicle may have had damage prior to the accident, and it can be difficult to determine exactly what portion of the damage was caused by the accident itself. For example, if your car has a mechanical problem, the insurance company may claim that it was a preexisting problem if some evidence indicates that the vehicle may have sustained substantial wear and tear. Therefore, it is important that you prove the connection between the auto accident and the damage you are claiming. Normally, mechanics and collision repair personnel can help to prove the age of body damage or the cause of a mechanical failure. They can assist to convince the insurance company that the auto accident caused the damage you are claiming.
Will I have to pay the towing and storage costs?
The insurance company for the driver who caused the accident will customarily pay the reasonable towing and storage costs, unless there is a dispute as to who was at fault in the accident. If the insurance company declares the car a total loss, they will have the car moved to a wrecking yard or a free storage area. If you do not wish to allow the insurance company to move your car, you will have to pay the storage costs from the day of your refusal forward, or you can pay to have it towed to your home.
What about license and registration fees that I had to pay to drive the car?
To drive and operate a motor vehicle in the United States, one has to pay license and registration fees. In some states, you are entitled to be reimbursed for the prorated amount of these costs that are unused. The insurance company may reimburse you for tag transfer fees and, in some cases, a prorated amount of sales tax on the actual cash value of the car at the time of the accident. You may choose to contact a Florida auto accident lawyer to learn whether license and registration fees are recoverable in your case.
What if I need a rental car? Do I have to pay for it while my car is being repaired?
You must pay for your own rental car if you were the cause of the accident, or if there is some dispute over who is to blame. You may seek coverage under your own insurance policy to see if rental coverage is available. Many insurance contracts do not provide for rental coverage for their own customers, so you need to contact your insurance agent to determine what coverage exists.
If the other driver is at fault, then your attorney may demand that the insurance company for the person who caused the accident provide you with a rental car for the time needed to repair your vehicle. On certain occassions, you must pay the rental car bill first, with reimbursement coming from the insurance company later.
What kind of rental car am I entitled to?
The insurance company has to pay for the reasonably incurred rental cost of a substitute vehicle. Often, there are disputes as to what qualifies as a “substitute” vehicle. Essentially, it should be a vehicle of similar quality, within the confines of what is available for rent.
Should I purchase any extra insurance on the rental car provided to me?
Your own insurance policy should cover you while driving the rental car, but you should call your insurance agent to be sure that you are covered. The other driver’s insurance company is not required to pay for additional insurance if you choose to purchase it from the car rental company.
Can I control whether my car is repaired or replaced?
How is the market value of my car determined?
What if I am “upside down” on the loan for my car?
Can I choose my own repair shop?
What kind of parts will be used in the repair?
What if my car already had some damage before the accident?
Will I have to pay the towing and storage costs?
What about license and registration fees that I had to pay to drive the car?
Rental Car Questions
What if I need a rental car? Do I have to pay for it while my car is being repaired?
What kind of rental car am I entitled to?
Should I purchase any extra insurance on the rental car provided to me?
Can I control whether my car is repaired or replaced?
Like most individuals, not having the use of your car due to an accident is a major inconvenience. Normally, the insurance company has the option to either repair or replace your vehicle, depending on whether it costs less to replace your vehicle than to repair it. If this is the case, the insurance company will declare your vehicle a “total loss,” and take action to replace your vehicle. If your car is declared a “total loss,” the insurance company buys your car for its market value, which may be determined by a source such as the Kelley Blue Book. If you wish to keep the wrecked car, you may purchase it back from the insurance company for its salvage value. The insurance adjuster can deduct the salvage value from the settlement and you can keep the car if this is the case, you may choose to use your own money to repair your car to bring it back to a safe and drivable state.
Often the situation is reversed, and the insurance company chooses to repair a vehicle rather than replace it. In this case, if you are concerned about the safety of the repaired vehicle, you should contact our office to discuss your options.
How is the market value of my car determined?
You are entitled to recover the “fair market value” or the “actual cash value” of your vehicle immediately before the accident. One common source used to estimate fair market value is the Kelley Blue Book. Other sources of information are the local newspaper or the Auto Trader, which may list the for-sale price of cars of the same make, model, and year as yours. Occasionally, an expert vehicle appraiser is used to help prove the value of your vehicle.
What if I am “upside down” on the loan for my car?
If you are upside down on a loan, it means that you owe more money on the loan than the fair market value of the car. Unfortunately, if your vehicle is a total loss, the insurance company is not required to pay more money to you simply because you are “upside down” with your car loan. They are only required to pay the “fair market value” of your car.
Can I choose my own repair shop?
Yes. You are allowed to take your car wherever you wish to have it repaired, however the cost of the repair is not always determined by the estimate given by the repair facility of your choosing.
What kind of parts will be used in the repair?
You have the right to demand that only original manufacturer parts be used in the repair, so if your car is a Saab, you should receive genuine Saab parts. Your car was likely not brand new at the time of the accident, so the mechanic repairing your car may choose to use refurbished or reconditioned parts.
What if my car already had some damage before the accident?
Your vehicle may have had damage prior to the accident, and it can be difficult to determine exactly what portion of the damage was caused by the accident itself. For example, if your car has a mechanical problem, the insurance company may claim that it was a preexisting problem if some evidence indicates that the vehicle may have sustained substantial wear and tear. Therefore, it is important that you prove the connection between the auto accident and the damage you are claiming. Normally, mechanics and collision repair personnel can help to prove the age of body damage or the cause of a mechanical failure. They can assist to convince the insurance company that the auto accident caused the damage you are claiming.
Will I have to pay the towing and storage costs?
The insurance company for the driver who caused the accident will customarily pay the reasonable towing and storage costs, unless there is a dispute as to who was at fault in the accident. If the insurance company declares the car a total loss, they will have the car moved to a wrecking yard or a free storage area. If you do not wish to allow the insurance company to move your car, you will have to pay the storage costs from the day of your refusal forward, or you can pay to have it towed to your home.
What about license and registration fees that I had to pay to drive the car?
To drive and operate a motor vehicle in the United States, one has to pay license and registration fees. In some states, you are entitled to be reimbursed for the prorated amount of these costs that are unused. The insurance company may reimburse you for tag transfer fees and, in some cases, a prorated amount of sales tax on the actual cash value of the car at the time of the accident. You may choose to contact a Florida auto accident lawyer to learn whether license and registration fees are recoverable in your case.
What if I need a rental car? Do I have to pay for it while my car is being repaired?
You must pay for your own rental car if you were the cause of the accident, or if there is some dispute over who is to blame. You may seek coverage under your own insurance policy to see if rental coverage is available. Many insurance contracts do not provide for rental coverage for their own customers, so you need to contact your insurance agent to determine what coverage exists.
If the other driver is at fault, then your attorney may demand that the insurance company for the person who caused the accident provide you with a rental car for the time needed to repair your vehicle. On certain occassions, you must pay the rental car bill first, with reimbursement coming from the insurance company later.
What kind of rental car am I entitled to?
The insurance company has to pay for the reasonably incurred rental cost of a substitute vehicle. Often, there are disputes as to what qualifies as a “substitute” vehicle. Essentially, it should be a vehicle of similar quality, within the confines of what is available for rent.
Should I purchase any extra insurance on the rental car provided to me?
Your own insurance policy should cover you while driving the rental car, but you should call your insurance agent to be sure that you are covered. The other driver’s insurance company is not required to pay for additional insurance if you choose to purchase it from the car rental company.
Monday, October 12, 2009
What to Do if You Slip and Fall
1. Make sure to write down the names, addresses and phone numbers of anyone in the vicinity where the incident occurred – both those who saw you fall, and others who were there after the incident—since you will likely need them as witnesses on your behalf. Even if someone did not see you fall, he or she could, if necessary, describe your pain and the conditions of the floor, lighting, or other hazard immediately after you fell.
2. Inspect the area where you fell, and try to determine what caused you to fall.
3. Have someone take photographs of the area as soon as possible, so a record is made. Dangerous conditions have a way of changing if the property owner thinks that you might file a claim for injuries.
4. If you slip on any substance on the floor, obtain a sample of the substance if possible.
5. After receiving appropriate initial medical treatment, contact an attorney with experience in handling claims for personal injury resulting from slip and fall accidents.
6. If the incident occurred in a store or place of business, speak with the manager or supervisor on duty, and have them make a record of the incident, being sure to get a copy of anything prepared. If anyone (especially an employee, supervisor or manager) makes a comment suggesting that this has occurred before, or that they were aware of the condition before your fall, obtain this person’s name and job title. Make sure to get the name, address and phone number of anyone else who heard him or her make the statement.
2. Inspect the area where you fell, and try to determine what caused you to fall.
3. Have someone take photographs of the area as soon as possible, so a record is made. Dangerous conditions have a way of changing if the property owner thinks that you might file a claim for injuries.
4. If you slip on any substance on the floor, obtain a sample of the substance if possible.
5. After receiving appropriate initial medical treatment, contact an attorney with experience in handling claims for personal injury resulting from slip and fall accidents.
6. If the incident occurred in a store or place of business, speak with the manager or supervisor on duty, and have them make a record of the incident, being sure to get a copy of anything prepared. If anyone (especially an employee, supervisor or manager) makes a comment suggesting that this has occurred before, or that they were aware of the condition before your fall, obtain this person’s name and job title. Make sure to get the name, address and phone number of anyone else who heard him or her make the statement.
Friday, October 2, 2009
Tips for Preventing Motorcycle Injuries
- Get licensed. All states require a motorcycle license.
- Never drink alcohol before operating a motorcycle.
- Watch for hazards on the road, such as large cracks, holes, and bumps. Keep an eye out for vehicles coming from driveways and side streets
- Make sure your headlight is on every time you ride. (This is a law in most states.)
- Don’t let anyone ride with you until you are skilled at riding in all kinds of conditions.
- If you’re a new rider, take a motorcycle riders’ course. To locate a course near you, call 1-800-446-9227.
- Make sure passengers’ feet can reach the footrests. Insist that they keep their feet on the footrests at all times, even when you stop.
- Don’t let passengers get on the motorcycle until after you start it.
- Tell your passengers to lean with you when you turn.
- Insist that passengers hold on to your waist all the time
- If you ride a motorcycle, always wear a helmet. Helmets are your best defense against serious and fatal brain injuries.
- In addition to your helmet, wear eye and face protection. Many helmets have built-in visors or other face guards. Wear long pants, gloves, boots, and a durable long-sleeved jacket.
- Follow all the rules of the road. Don’t speed-40 percent of motorcyclists who died in crashes were speeding.
- When passengers ride with you, they must wear a helmet and protective gear.
- Insist that passengers sit behind you on the motorcycle.
- Instruct passengers to keep their legs away from the muffler to avoid burns.
- Ask that passengers limit their movement and talking.
Government Regulation of Nursing Homes
The Center for Medicare & Medicaid Services (CMS) is the component of the Federal Government’s Department of Health and Human Services (DHHS) that oversees the Medicare and Medicaid programs. A large portion of Medicare and Medicaid dollars is used each year to cover nursing home care and services for the elderly and disabled. State governments oversee the licensing of nursing homes. In addition, States have a contract with CMS to monitor those nursing homes that want to be eligible to provide care to Medicare and Medicaid beneficiaries.
Congress established minimum requirements for nursing homes that want to provide services under Medicare and Medicaid. These requirements are broadly outlined in the Social Security Act (the Act). The Act also entrusts the Secretary of DHHS with the responsibility of monitoring and enforcing these requirements. CMS, a DHHS Agency, is also charged with the responsibility of working out the details of the law and how it will be implemented, which it does by writing regulations and manuals.
CMS contracts with each state to conduct onsite inspections that determine whether its nursing homes meet the minimum Medicare and Medicaid quality and performance standards. Typically, the part of state government that takes care of this duty is the health department or department of human services. In Florida, the Department of Health Services is responsible for protecting the health and safety of nursing care institutions. The state conducts inspections of each nursing home that participates in Medicare and/or Medicaid on average about once a year. Fla. Stat. § 400.19.
If the nursing home is performing poorly, however, the state inspectors may go in more frequently. The state also investigates complaints about nursing home care. During the nursing home inspection, the state looks at many aspects of quality. The inspection team observes resident care processes, staff/resident interaction, and environment. Using an established protocol of residential rights, the team interviews a sample of residents and family members about their life within the nursing home, and interviews caregivers and administrative staff.
The inspection team consists of trained inspectors, including at least one registered nurse. This team evaluates whether the nursing home meets individual resident needs. The regulations cover a wide range of aspects of resident life, from specifying standards for the safe storage and preparation of food to protecting residents from physical or mental abuse or inadequate care practices.
There are over 150 regulatory standards that nursing homes must meet at all times. Many are related. In addition, fire safety specialists evaluate whether a nursing home meets standards for safe construction. When an inspection team finds that a home does not meet a specific regulation, it issues a deficiency citation. After each inspection, the Department of Health issues a quality rating based on the quality of service provided by the facility.
Depending on the nature of the problem, the law permits CMS to take a variety of actions; for example, CMS may fine the nursing home, deny payment to the nursing home, assign a temporary manager, or install a state monitor. CMS considers the extent of harm caused by the failure to meet requirements when it takes an enforcement action. If the nursing home does not correct its problems, CMS terminates its agreement with the nursing home. As a result, the nursing home is no longer certified to provide care to Medicare and Medicaid beneficiaries. Any beneficiaries residing in the home at the time of the termination are transferred to certified facilities.
Congress established minimum requirements for nursing homes that want to provide services under Medicare and Medicaid. These requirements are broadly outlined in the Social Security Act (the Act). The Act also entrusts the Secretary of DHHS with the responsibility of monitoring and enforcing these requirements. CMS, a DHHS Agency, is also charged with the responsibility of working out the details of the law and how it will be implemented, which it does by writing regulations and manuals.
CMS contracts with each state to conduct onsite inspections that determine whether its nursing homes meet the minimum Medicare and Medicaid quality and performance standards. Typically, the part of state government that takes care of this duty is the health department or department of human services. In Florida, the Department of Health Services is responsible for protecting the health and safety of nursing care institutions. The state conducts inspections of each nursing home that participates in Medicare and/or Medicaid on average about once a year. Fla. Stat. § 400.19.
If the nursing home is performing poorly, however, the state inspectors may go in more frequently. The state also investigates complaints about nursing home care. During the nursing home inspection, the state looks at many aspects of quality. The inspection team observes resident care processes, staff/resident interaction, and environment. Using an established protocol of residential rights, the team interviews a sample of residents and family members about their life within the nursing home, and interviews caregivers and administrative staff.
The inspection team consists of trained inspectors, including at least one registered nurse. This team evaluates whether the nursing home meets individual resident needs. The regulations cover a wide range of aspects of resident life, from specifying standards for the safe storage and preparation of food to protecting residents from physical or mental abuse or inadequate care practices.
There are over 150 regulatory standards that nursing homes must meet at all times. Many are related. In addition, fire safety specialists evaluate whether a nursing home meets standards for safe construction. When an inspection team finds that a home does not meet a specific regulation, it issues a deficiency citation. After each inspection, the Department of Health issues a quality rating based on the quality of service provided by the facility.
Depending on the nature of the problem, the law permits CMS to take a variety of actions; for example, CMS may fine the nursing home, deny payment to the nursing home, assign a temporary manager, or install a state monitor. CMS considers the extent of harm caused by the failure to meet requirements when it takes an enforcement action. If the nursing home does not correct its problems, CMS terminates its agreement with the nursing home. As a result, the nursing home is no longer certified to provide care to Medicare and Medicaid beneficiaries. Any beneficiaries residing in the home at the time of the termination are transferred to certified facilities.
Bad Faith: Insurance Adjusters
Insurance adjusters are not there to befriend you they have a job to do. They work for the insurance company, and they are 100% focused on paying you as little money as possible. The investigator or adjuster from the other side’s insurance company may be very pleasant, appear to be concerned about you, and even try to be your friend.
In actuality, he or she may be a wonderful person, but always remember his or her job is to protect the insurance company, or to find a reason NOT to pay you, or if they must, to make sure you receive as little as the insurance company can possibly get away with paying. Ideally, they want to try to “make the matter go away.” Most adjusters are taught that the best way to making cases go away is to control, you, the claimant. They do this by being friendly, or by being mean, depending on what they think will work best on a given individual.
The investigator or adjuster may tell you how difficult it would be to recover more for your injuries (“If I were you I’d accept this. You’ll never get more and the courts have a 3 year back-up”), and try to discourage you from hiring a attorney (“By the time you pay a lawyer you’ll end up with no more than if you just take this today…”). In addition, he or she may try to get you to minimize the nature and extent of the pain, the impact of any permanent injury, or to accept full or partial responsibility for the accident when it was not your fault (“I guess you should have paid more attention”). Those are classic insurance adjuster tricks that should be ignored.
The following are some additional references an adjuster may make to attempt to deny or reduce your claim:
Just because an insurance adjuster calls and talks does not mean you have to talk. Do not get into a discussion, no matter how tempted you may be to do so. Use the occasion to listen and when it’s over say: “I will think about it and get back to you.” You should always contact an attorney who is experienced in negotiating settlements with insurance companies to evaluate your case prior to any communication with the insurance company.
Insurance companies’ claims adjusters are professional negotiators, with extensive experience in intimidation, “hassling,” and using every psychological technique to maneuver a claimant into settling for the lowest possible dollar. They will also try to dissuade people from using the professional services of a lawyer. Never give an oral statement to the other side’s insurance company. If you do, it can negatively impact your chances of getting the compensation you deserve. Claims adjusters are hired because they come across as personable and compassionate, and they are extremely well trained by company lawyers to ask questions in a manner designed to hurt you and help them. Claims adjusters know that if they can keep a claimant negotiating, there is a high probability of a successful settlement in favor of the insurance company. You cannot beat experts at their game it is better to hire an attorney who has experience dealing with these types of claims.
In actuality, he or she may be a wonderful person, but always remember his or her job is to protect the insurance company, or to find a reason NOT to pay you, or if they must, to make sure you receive as little as the insurance company can possibly get away with paying. Ideally, they want to try to “make the matter go away.” Most adjusters are taught that the best way to making cases go away is to control, you, the claimant. They do this by being friendly, or by being mean, depending on what they think will work best on a given individual.
The investigator or adjuster may tell you how difficult it would be to recover more for your injuries (“If I were you I’d accept this. You’ll never get more and the courts have a 3 year back-up”), and try to discourage you from hiring a attorney (“By the time you pay a lawyer you’ll end up with no more than if you just take this today…”). In addition, he or she may try to get you to minimize the nature and extent of the pain, the impact of any permanent injury, or to accept full or partial responsibility for the accident when it was not your fault (“I guess you should have paid more attention”). Those are classic insurance adjuster tricks that should be ignored.
The following are some additional references an adjuster may make to attempt to deny or reduce your claim:
- Defects in your car caused the accident
- You did not receive treatment until weeks after the accident
- Medical records show that you exaggerated the injury
- Minor damage was done to your vehicle
- No complaint of pain at the scene of the accident
- Some other person, or you, was partly responsible for the accident.
- You weren’t wearing your seatbelt
- Medical records show that you had the condition before the accident
- No police report and no witnesses
- No request for medical care at the scene of the accident
- You missed a lot of work time before the accident
Just because an insurance adjuster calls and talks does not mean you have to talk. Do not get into a discussion, no matter how tempted you may be to do so. Use the occasion to listen and when it’s over say: “I will think about it and get back to you.” You should always contact an attorney who is experienced in negotiating settlements with insurance companies to evaluate your case prior to any communication with the insurance company.
Insurance companies’ claims adjusters are professional negotiators, with extensive experience in intimidation, “hassling,” and using every psychological technique to maneuver a claimant into settling for the lowest possible dollar. They will also try to dissuade people from using the professional services of a lawyer. Never give an oral statement to the other side’s insurance company. If you do, it can negatively impact your chances of getting the compensation you deserve. Claims adjusters are hired because they come across as personable and compassionate, and they are extremely well trained by company lawyers to ask questions in a manner designed to hurt you and help them. Claims adjusters know that if they can keep a claimant negotiating, there is a high probability of a successful settlement in favor of the insurance company. You cannot beat experts at their game it is better to hire an attorney who has experience dealing with these types of claims.
Friday, September 25, 2009
Effects of Spinal Cord Injury
The effects of SCI depend on the type of injury and the level of the injury. SCI can be divided into two types of injury – complete and incomplete. A complete injury means that there is no function below the level of the injury; no sensation and no voluntary movement, and both sides of the body are equally affected. An incomplete injury means that there is some functioning below the primary level of the injury. A person with an incomplete injury may be able to move one limb more than another, may be able to feel parts of the body that cannot be moved, or may have more functioning on one side of the body than the other. With the advances in acute treatment of SCI, incomplete injuries are becoming more common.
The level of injury is very helpful in predicting what parts of the body might be affected by paralysis and loss of function. Injuries at the thoracic level and below result in paraplegia, with the hands not affected. At T-1 to T-8 there is most often control of the hands, but poor trunk control as the result of lack of abdominal muscle control. Lower T-injuries (T-9 to T-12) allow good trunk control and good abdominal muscle control which makes sitting balance is very good. Lumbar and Sacral injuries yield decreasing control of the hip flexors and legs.
Remember that in incomplete injuries there will be some variation in these prognoses. Cervical (neck) injuries usually result in quadriplegia. Injuries above the C-4 level may require a ventilator for the person to breathe. C-5 injuries often result in shoulder and biceps control, but no control at the wrist or hand. C-6 injuries generally yield wrist control, but no hand function. Individuals with C-7 and T-1 injuries can straighten their arms but still may have dexterity problems with the hand and fingers.
Besides a loss of sensation or motor functioning, individuals with SCI also experience other changes. For example, they may lose control of their bowel and bladder functions. Sexual functioning is frequently affected: men with SCI may have their fertility affected, while women’s fertility is generally not affected. Very high injuries (C-1, C-2) can result in a loss of many involuntary functions including the ability to breathe, necessitating breathing aids such as mechanical ventilators or diaphragmatic pacemakers. Other adverse effects of a spinal cord injury may include low blood pressure, inability to regulate blood pressure effectively, reduced control of body temperature, inability to sweat below the level of injury, and chronic pain.
A person can “break their back or neck” yet not sustain a spinal cord injury if only the bones around the spinal cord (the vertebrae) are damaged, but the spinal cord is not affected. In these situations, the individual may not experience paralysis after the bones are stabilized. When a SCI occurs, there is usually swelling of the spinal cord, which may cause changes in virtually every system in the body. After days or weeks, the swelling begins to go down and people may regain some functioning. With many injuries, especially incomplete injuries, the individual may recover some functioning as late as 18 months after the injury.
In very rare cases, people with SCI will regain some functioning years after the injury. However, only a very small fraction of individuals sustaining SCIs recover all functioning. Currently there is no cure for spinal cord injuries. Medical research has made many advancements attempting to come up with a cure. Many of the most exciting advances have resulted in a decrease in damage at the time of the injury. Steroid drugs such as methylprednisolone reduce swelling, which is a common cause of secondary damage at the time of injury. The experimental drug Sygen® appears to reduce loss of function, although the mechanism is not completely understood.
The level of injury is very helpful in predicting what parts of the body might be affected by paralysis and loss of function. Injuries at the thoracic level and below result in paraplegia, with the hands not affected. At T-1 to T-8 there is most often control of the hands, but poor trunk control as the result of lack of abdominal muscle control. Lower T-injuries (T-9 to T-12) allow good trunk control and good abdominal muscle control which makes sitting balance is very good. Lumbar and Sacral injuries yield decreasing control of the hip flexors and legs.
Remember that in incomplete injuries there will be some variation in these prognoses. Cervical (neck) injuries usually result in quadriplegia. Injuries above the C-4 level may require a ventilator for the person to breathe. C-5 injuries often result in shoulder and biceps control, but no control at the wrist or hand. C-6 injuries generally yield wrist control, but no hand function. Individuals with C-7 and T-1 injuries can straighten their arms but still may have dexterity problems with the hand and fingers.
Besides a loss of sensation or motor functioning, individuals with SCI also experience other changes. For example, they may lose control of their bowel and bladder functions. Sexual functioning is frequently affected: men with SCI may have their fertility affected, while women’s fertility is generally not affected. Very high injuries (C-1, C-2) can result in a loss of many involuntary functions including the ability to breathe, necessitating breathing aids such as mechanical ventilators or diaphragmatic pacemakers. Other adverse effects of a spinal cord injury may include low blood pressure, inability to regulate blood pressure effectively, reduced control of body temperature, inability to sweat below the level of injury, and chronic pain.
A person can “break their back or neck” yet not sustain a spinal cord injury if only the bones around the spinal cord (the vertebrae) are damaged, but the spinal cord is not affected. In these situations, the individual may not experience paralysis after the bones are stabilized. When a SCI occurs, there is usually swelling of the spinal cord, which may cause changes in virtually every system in the body. After days or weeks, the swelling begins to go down and people may regain some functioning. With many injuries, especially incomplete injuries, the individual may recover some functioning as late as 18 months after the injury.
In very rare cases, people with SCI will regain some functioning years after the injury. However, only a very small fraction of individuals sustaining SCIs recover all functioning. Currently there is no cure for spinal cord injuries. Medical research has made many advancements attempting to come up with a cure. Many of the most exciting advances have resulted in a decrease in damage at the time of the injury. Steroid drugs such as methylprednisolone reduce swelling, which is a common cause of secondary damage at the time of injury. The experimental drug Sygen® appears to reduce loss of function, although the mechanism is not completely understood.
School Bus Accidents
School bus accidents are amongst the most heartbreaking of all motor vehicle accidents due in part to the unfortunate involvement of young children. As a result, substantial damages are often at issue in cases of this type, and forceful representation is required to bring all responsible parties to justice. In Florida, each district school board can be held liable for tort claims arising out of any incident or occurrence involving a school bus or other motor vehicle owned, or operated by the school board to transport persons. Fla. Stat. § 1006.24.
A school bus-related crash is defined as a crash which involves, either directly or indirectly, a school bus-type vehicle, or a vehicle functioning as a school bus, transporting children to or from school or school-related activities.
Since 1995, 170 school-age pedestrians (younger than 19) have died in school transportation-related crashes. Nearly two-thirds (65%) were killed by school buses, 5 percent by vehicles functioning as school buses, and 30 percent by other vehicles involved in the crashes. Nearly one-half (49%) of all school-age pedestrians killed in school transportation-related crashes were between the ages of 5 and 7.
Since 1995 there have been about 416,295 fatal traffic crashes. Of those, 0.33 percent (1,368) were classified as school transportation-related. Since 1995, 1,509 people have died in school transportation-related crashes an average of 137 fatalities per year. Most of the people who lost their lives in those crashes (70%) were occupants of other vehicles involved. Nonoccupants (pedestrians, bicyclists, etc.) accounted for 22 percent of the deaths, and occupants of school transportation vehicles accounted for 8 percent.
More school-age pedestrians are killed in the afternoon than in the morning, with 32 percent of the fatalities occurring in crashes between 3 and 4 p.m. Between 1995 and 2005, 97 crashes occurred in which at least one occupant of a school transportation vehicle died.
More than half of those crashes (55%) involved at least one other vehicle. In 52 percent of all crashes involving fatalities to occupants of a school transportation vehicle, the principal point of impact was the front of the vehicle. Since 1995, 6 drivers and 13 passengers have died in school bus vehicles providing transportation for purposes other than school or school-related activities (churches, civic organizations, etc.). In 1987, one such multi-vehicle crash resulted in the deaths of 27 occupants, including the driver.
A school bus-related crash is defined as a crash which involves, either directly or indirectly, a school bus-type vehicle, or a vehicle functioning as a school bus, transporting children to or from school or school-related activities.
Since 1995, 170 school-age pedestrians (younger than 19) have died in school transportation-related crashes. Nearly two-thirds (65%) were killed by school buses, 5 percent by vehicles functioning as school buses, and 30 percent by other vehicles involved in the crashes. Nearly one-half (49%) of all school-age pedestrians killed in school transportation-related crashes were between the ages of 5 and 7.
Since 1995 there have been about 416,295 fatal traffic crashes. Of those, 0.33 percent (1,368) were classified as school transportation-related. Since 1995, 1,509 people have died in school transportation-related crashes an average of 137 fatalities per year. Most of the people who lost their lives in those crashes (70%) were occupants of other vehicles involved. Nonoccupants (pedestrians, bicyclists, etc.) accounted for 22 percent of the deaths, and occupants of school transportation vehicles accounted for 8 percent.
More school-age pedestrians are killed in the afternoon than in the morning, with 32 percent of the fatalities occurring in crashes between 3 and 4 p.m. Between 1995 and 2005, 97 crashes occurred in which at least one occupant of a school transportation vehicle died.
More than half of those crashes (55%) involved at least one other vehicle. In 52 percent of all crashes involving fatalities to occupants of a school transportation vehicle, the principal point of impact was the front of the vehicle. Since 1995, 6 drivers and 13 passengers have died in school bus vehicles providing transportation for purposes other than school or school-related activities (churches, civic organizations, etc.). In 1987, one such multi-vehicle crash resulted in the deaths of 27 occupants, including the driver.
Product Liability
The law of product liability is the area of law that deals with the liability of the manufacturer, wholesaler or retailer of a product for injuries resulting from that product. This includes the manufacturer of component parts of the product, an assembling manufacturer, the wholesaler, the retail store or other ultimate seller of the product, and any other party in the distributive chain, regardless of whether you actually purchased the item yourself.
Here is an example: You borrow an power saw with a design defect from a friend. The cord’s wires cannot carry the electrical load it indicates that it can. The result is an electrical fire that burns down your house. You can file a product liability lawsuit against the maker of the power saw, its distributor, its wholesaler, and the retail store where it was originally purchased by your friend.
Product liability law gives consumers the ability to sue for and be compensated for damages from manufacturers, distributors and vendors for injuries resulting from accidents caused by defective products. Nearly all products are subject to products liability law, not just items on the store shelves – products subject to the law include food, drugs, appliances, tobacco, gases, real estate, automobiles, blood, writings, maps, medical devices, medical implants, and even commercial jets.
Research from the U.S. Consumer Product Safety Commission indicates that defective or unsafe products cause 29.4 million injuries and 21,400 deaths each year. You or a family member may be injured by something seemingly harmless or something you use every day, such as a coffee maker, air conditioner, baby chair, toy, car, hair dryer, toaster, iron, hand tool or even your clothing. Products liability claims are tort-based claims that can arise from negligence, strict liability, or breach of warranty, though products liability is often focused on strict liability claims.
Strict Liability
Strict liability is the term used to describe situations in which a person can be held liable for damages caused to another person even if they are not negligent or found to be at fault. Strict liability means “liability without fault” – therefore a person is liable whether or not they were negligent and whether or not they intended to do any harm.
Strict liability is usually imposed on manufactured products, under the law of product liability. Strict liability claims do not involve proof of whether or not someone acted reasonably or used appropriate care in manufacturing a certain product. Translated to products liability terms, a defendant in a product liability claim will be found liable for damages to a plaintiff if it is found that the product is defective, regardless of whether the manufacturer or supplier exercised great care when designing and manufacturing it.
The law imposes strict liability on inherently or abnormally dangerous activities, or activities that are likely to cause particular kinds of harm. A prime example of this type of activity is the use of explosives – if injury results from the use of explosives, regardless of the purpose for which they are used and the care exercised, the operator of the explosives is liable to those damaged by their use.
In lights of these facts, a plaintiff does not have to demonstrate that the manufacturer or vendor was negligent or careless, only that: a defect in the product caused the accident he or she was using the product in a manner consistent with the way it was meant to be used the product was not substantially changed between the time it left the seller or manufacturer’s hands and the time it reached the plaintiff.
You should be aware that even if you are not the original owner of the merchandise you can sue for product liability. For example, if a friend lends you a lawnmower that turns out to be defective and injures you, you can file a product liability claim against the manufacturer, distributor, wholesaler, and/or vendor of the item. Even if a company doesn’t actually make the product, but simply puts its label on it, they can be held liable for injuries.
Here is an example: A supermarket has a contract with a manufacturer to make a line of soft drinks for the store. The manufacturer uses a bottle that does not properly release pressure upon opening. If somebody is injured by an exploding bottlecap, then the supermarket is liable as well as the manufacturer. Even if the supermarket was unaware that the bottles were defective, they are still held liable.
A breach of warranty claim arises under the law of contracts, where the law imposes certain “implied warranties” on the sale of products. These implied warranties include the warranty of merchantability (that the goods are in proper condition for use and free of defects), and the warranty of fitness for a particular purpose (e.g., the refrigerator must be able to keep food cold and fresh; the chair must be capable of supporting a person’s weight). These warranties are called implied warranties because the law assumes that they apply even if they are not expressly stated on the packaging or manuals. If a product does not meet these standards, the purchaser may have the right to return it to the place of purchase and receive a refund, or sometimes file a case and receive monetary damages.
The law of contracts covers economic loss caused by the breach of warranties in the sale of goods. The Uniform Commercial Code, Article 2, also deals with the sales of goods and the implied and express warranties of merchantability in the sales of goods. U.C.C. §§ 2-314 and 2-315.
In a negligence claim, a plaintiff must show that a manufacturer, seller, wholesaler or other party involved in the distributive chain had a duty to exercise reasonable care in the process of manufacturing or selling a product and failed to fulfill that duty, resulting in injury to the plaintiff. Negligence consists of doing something that a person of ordinary prudence would not do under the same or similar circumstances; or failing to do something that a person of ordinary prudence would do under the same or similar circumstances.
This can take the form of negligence in drawing up or reviewing plans for a product, negligence in failure to inspect or test the product adequately, negligence in issuing inadequate warnings, negligence in maintaining the machines that make the component parts of the product, negligence in failure to anticipate probable uses of the product, or instructions regarding the use of the product, or any other aspect of the manufacturing or distribution process where due care is not used.
Here is an example: You borrow an power saw with a design defect from a friend. The cord’s wires cannot carry the electrical load it indicates that it can. The result is an electrical fire that burns down your house. You can file a product liability lawsuit against the maker of the power saw, its distributor, its wholesaler, and the retail store where it was originally purchased by your friend.
Product liability law gives consumers the ability to sue for and be compensated for damages from manufacturers, distributors and vendors for injuries resulting from accidents caused by defective products. Nearly all products are subject to products liability law, not just items on the store shelves – products subject to the law include food, drugs, appliances, tobacco, gases, real estate, automobiles, blood, writings, maps, medical devices, medical implants, and even commercial jets.
Research from the U.S. Consumer Product Safety Commission indicates that defective or unsafe products cause 29.4 million injuries and 21,400 deaths each year. You or a family member may be injured by something seemingly harmless or something you use every day, such as a coffee maker, air conditioner, baby chair, toy, car, hair dryer, toaster, iron, hand tool or even your clothing. Products liability claims are tort-based claims that can arise from negligence, strict liability, or breach of warranty, though products liability is often focused on strict liability claims.
Strict Liability
Strict liability is the term used to describe situations in which a person can be held liable for damages caused to another person even if they are not negligent or found to be at fault. Strict liability means “liability without fault” – therefore a person is liable whether or not they were negligent and whether or not they intended to do any harm.
Strict liability is usually imposed on manufactured products, under the law of product liability. Strict liability claims do not involve proof of whether or not someone acted reasonably or used appropriate care in manufacturing a certain product. Translated to products liability terms, a defendant in a product liability claim will be found liable for damages to a plaintiff if it is found that the product is defective, regardless of whether the manufacturer or supplier exercised great care when designing and manufacturing it.
The law imposes strict liability on inherently or abnormally dangerous activities, or activities that are likely to cause particular kinds of harm. A prime example of this type of activity is the use of explosives – if injury results from the use of explosives, regardless of the purpose for which they are used and the care exercised, the operator of the explosives is liable to those damaged by their use.
In lights of these facts, a plaintiff does not have to demonstrate that the manufacturer or vendor was negligent or careless, only that: a defect in the product caused the accident he or she was using the product in a manner consistent with the way it was meant to be used the product was not substantially changed between the time it left the seller or manufacturer’s hands and the time it reached the plaintiff.
You should be aware that even if you are not the original owner of the merchandise you can sue for product liability. For example, if a friend lends you a lawnmower that turns out to be defective and injures you, you can file a product liability claim against the manufacturer, distributor, wholesaler, and/or vendor of the item. Even if a company doesn’t actually make the product, but simply puts its label on it, they can be held liable for injuries.
Here is an example: A supermarket has a contract with a manufacturer to make a line of soft drinks for the store. The manufacturer uses a bottle that does not properly release pressure upon opening. If somebody is injured by an exploding bottlecap, then the supermarket is liable as well as the manufacturer. Even if the supermarket was unaware that the bottles were defective, they are still held liable.
A breach of warranty claim arises under the law of contracts, where the law imposes certain “implied warranties” on the sale of products. These implied warranties include the warranty of merchantability (that the goods are in proper condition for use and free of defects), and the warranty of fitness for a particular purpose (e.g., the refrigerator must be able to keep food cold and fresh; the chair must be capable of supporting a person’s weight). These warranties are called implied warranties because the law assumes that they apply even if they are not expressly stated on the packaging or manuals. If a product does not meet these standards, the purchaser may have the right to return it to the place of purchase and receive a refund, or sometimes file a case and receive monetary damages.
The law of contracts covers economic loss caused by the breach of warranties in the sale of goods. The Uniform Commercial Code, Article 2, also deals with the sales of goods and the implied and express warranties of merchantability in the sales of goods. U.C.C. §§ 2-314 and 2-315.
In a negligence claim, a plaintiff must show that a manufacturer, seller, wholesaler or other party involved in the distributive chain had a duty to exercise reasonable care in the process of manufacturing or selling a product and failed to fulfill that duty, resulting in injury to the plaintiff. Negligence consists of doing something that a person of ordinary prudence would not do under the same or similar circumstances; or failing to do something that a person of ordinary prudence would do under the same or similar circumstances.
This can take the form of negligence in drawing up or reviewing plans for a product, negligence in failure to inspect or test the product adequately, negligence in issuing inadequate warnings, negligence in maintaining the machines that make the component parts of the product, negligence in failure to anticipate probable uses of the product, or instructions regarding the use of the product, or any other aspect of the manufacturing or distribution process where due care is not used.
Thursday, September 17, 2009
Personal Injury Damages
The most significant issue to most people involved in a personal injury claim is the issue of damages. When a judge or jury finds a defendant liable for wrongful conduct in a personal injury case, the issue then becomes what types of damages are due to the plaintiff, and in what amount.
If you suffer a personal injury you’ll likely require costly medical attention and possibly rehabilitation. You may lose income and/or use up available sick/vacation time because of the injury, and you may continue to lose income while treatment and recovery takes place. Your vehicle may have been damaged or totaled, or you may have incurred other property damage. Since you can’t drive your vehicle while it is being repaired, you may have to rent one all of these things are costing you time and money. You may also lose the ability to perform various activities of normal daily living, for a while or permanently, and endure significant pain and suffering.
The law permits you to seek recovery after an accident to “make you whole again.” The central concept is that you should be compensated in a way that places you in a state that as closely as possible matches your state of being before the accident. In most personal injury actions the plaintiff must have been injured in some way to be entitled to damages.
For example, in negligence cases, your attorney must prove that you suffered injury (some type of physical, emotional or monetary harm) for the defendant to be required to pay compensation to you. However, with some intentional torts (such as battery, assault or trespass) your attorney may only have to show that the defendant engaged in the some sort of unauthorized conduct, without proving that you suffered actual physical harm, in order to recover damages (though damages in these situations are often nominal absent serious injury). The three basic kinds of damages that are awarded in personal injury cases are compensatory damages, punitive damages and nominal damages.
If you suffer a personal injury you’ll likely require costly medical attention and possibly rehabilitation. You may lose income and/or use up available sick/vacation time because of the injury, and you may continue to lose income while treatment and recovery takes place. Your vehicle may have been damaged or totaled, or you may have incurred other property damage. Since you can’t drive your vehicle while it is being repaired, you may have to rent one all of these things are costing you time and money. You may also lose the ability to perform various activities of normal daily living, for a while or permanently, and endure significant pain and suffering.
The law permits you to seek recovery after an accident to “make you whole again.” The central concept is that you should be compensated in a way that places you in a state that as closely as possible matches your state of being before the accident. In most personal injury actions the plaintiff must have been injured in some way to be entitled to damages.
For example, in negligence cases, your attorney must prove that you suffered injury (some type of physical, emotional or monetary harm) for the defendant to be required to pay compensation to you. However, with some intentional torts (such as battery, assault or trespass) your attorney may only have to show that the defendant engaged in the some sort of unauthorized conduct, without proving that you suffered actual physical harm, in order to recover damages (though damages in these situations are often nominal absent serious injury). The three basic kinds of damages that are awarded in personal injury cases are compensatory damages, punitive damages and nominal damages.
Wednesday, September 16, 2009
Causes of Cerebral Palsy
Cerebral Palsy can occur during pregnancy, during the birth process, or during the newborn period. Though there are many possible causes of cerebral palsy, the following are some of the more common identifiable causes or contributing factors.
During Pregnancy:
mother’s untreated high blood pressure, preeclampsia, eclampsia, toxemia, or diabetes
effects of certain types of genetic defects or syndromes
specific types of infections may occur for the first time during pregnancy, including toxoplasmosis, rubella, cytomegallovirus (CMV), herpes simplex, or untreated group B strep
frequent use of certain types of prescription, nonprescription or illegal drugs, or frequent use of alcohol by the mother during pregnancy
placental abnormalities may occur, including placental insufficiency or premature aging of the placenta during the pregnancy, or premature or sudden separation of the placenta from the wall of the uterus (placental abruption), causing intrauterine growth retardation (IUGR) of the fetus
severe malnutrition of the mother
exposure to certain types of toxic chemicals or other harmful environmental hazards
During the Birth Process:
dystocia, where the baby is stuck in the birth canal too long due to its size or position
damage to the placenta by the birth process – placenta previa or placental abruption
untreated umbilical cord compression, prolapse or occlusion
unrecognized or untreated signs of fetal distress from pressure on the umbilical cord
During the Newborn Period:
hereditary conditions which interfere with the baby’s digestion
complications of severe prematurity, including problems with the heart, blood pressure, circulation, breathing, meconium aspiration, nutrition, hydration, temperature, infection, jaundice, or bleeding
untreated seizures
Each of the above causes has the potential to interfere with normal development of the nervous system or potential to interfere with the delivery of oxygen and nutrition to the brain of the fetus or the newborn infant. When the delivery of oxygen and nutrition to the brain is interrupted, or decreased for a period of time, the brain could potentially suffer injury. Depending on the location and the extent of the brain injury, the infant may begin to show signs of abnormal activity, increased tone, delayed development, bleeding in the brain, paralysis of the extremities, spasticity, seizures, hypotonia (flaccidity in the trunk), mental retardation and other signs of defects in physical and mental functioning.
During Pregnancy:
mother’s untreated high blood pressure, preeclampsia, eclampsia, toxemia, or diabetes
effects of certain types of genetic defects or syndromes
specific types of infections may occur for the first time during pregnancy, including toxoplasmosis, rubella, cytomegallovirus (CMV), herpes simplex, or untreated group B strep
frequent use of certain types of prescription, nonprescription or illegal drugs, or frequent use of alcohol by the mother during pregnancy
placental abnormalities may occur, including placental insufficiency or premature aging of the placenta during the pregnancy, or premature or sudden separation of the placenta from the wall of the uterus (placental abruption), causing intrauterine growth retardation (IUGR) of the fetus
severe malnutrition of the mother
exposure to certain types of toxic chemicals or other harmful environmental hazards
During the Birth Process:
dystocia, where the baby is stuck in the birth canal too long due to its size or position
damage to the placenta by the birth process – placenta previa or placental abruption
untreated umbilical cord compression, prolapse or occlusion
unrecognized or untreated signs of fetal distress from pressure on the umbilical cord
During the Newborn Period:
hereditary conditions which interfere with the baby’s digestion
complications of severe prematurity, including problems with the heart, blood pressure, circulation, breathing, meconium aspiration, nutrition, hydration, temperature, infection, jaundice, or bleeding
untreated seizures
Each of the above causes has the potential to interfere with normal development of the nervous system or potential to interfere with the delivery of oxygen and nutrition to the brain of the fetus or the newborn infant. When the delivery of oxygen and nutrition to the brain is interrupted, or decreased for a period of time, the brain could potentially suffer injury. Depending on the location and the extent of the brain injury, the infant may begin to show signs of abnormal activity, increased tone, delayed development, bleeding in the brain, paralysis of the extremities, spasticity, seizures, hypotonia (flaccidity in the trunk), mental retardation and other signs of defects in physical and mental functioning.
Informed Consent
It is important that a patient has all the proper information before they make a decision to consent to a medical procedure. The doctor conveys this information to the patient through informed consent. The principle of informed consent requires a physician to provide information about a patient’s medical condition and all their available medical care options. The doctor must adequately inform the patient of the diagnosis, the nature and purpose of the treatment, any alternative treatments, the benefits and risks of the procedure itself and the risks of not undergoing the procedure, and any available alternatives. In essence, under the concept of informed consent, the doctor must not only get the patient’s consent to treatment, but the consent must be obtained from a fully informed patient.
While consenting to treatment may impose certain limits on your rights, signing a statement assuming the risks involved with a procedure does not mean that you have no recourse if the health care provider fails to perform according to acceptable levels of care. Though you may be consenting to certain risks inherent in the medical procedure, you are not consenting to negligent practices by the doctor.
Forms of consent
Consent to a treatment can be given either verbally or in writing, as is common where doctors provide consent forms for patients to sign. There are some situations where consent of a patient is implied, as where the patient exhibits conduct indicating a willingness to undergo the treatment, or in the case of an unconscious patient who is unable to consent and there is no family member available to give consent on his or her behalf (and no living will which directs otherwise).
If the patient is a child, it is usually necessary for a parent or guardian to consent to any treatment, unless treatment is required in an emergency situation and the parent or guardian is unavailable to give consent. Minors do not need consent from a parent or guardian if they are seeking treatment for a sexually transmitted disease or drug and alcohol problems.
Damages
The damages a patient may recover in this kind of medical liability action are different from the damages that might be obtained in a medical malpractice negligence action. Because the liability relates to the lack of consent to a procedure, rather than damage involved in a procedure, a patient may be able to recover damages even if the medical procedure was successful. In a negligence case, the patient must prove that damage occurred in order to be awarded a settlement.
While consenting to treatment may impose certain limits on your rights, signing a statement assuming the risks involved with a procedure does not mean that you have no recourse if the health care provider fails to perform according to acceptable levels of care. Though you may be consenting to certain risks inherent in the medical procedure, you are not consenting to negligent practices by the doctor.
Forms of consent
Consent to a treatment can be given either verbally or in writing, as is common where doctors provide consent forms for patients to sign. There are some situations where consent of a patient is implied, as where the patient exhibits conduct indicating a willingness to undergo the treatment, or in the case of an unconscious patient who is unable to consent and there is no family member available to give consent on his or her behalf (and no living will which directs otherwise).
If the patient is a child, it is usually necessary for a parent or guardian to consent to any treatment, unless treatment is required in an emergency situation and the parent or guardian is unavailable to give consent. Minors do not need consent from a parent or guardian if they are seeking treatment for a sexually transmitted disease or drug and alcohol problems.
Damages
The damages a patient may recover in this kind of medical liability action are different from the damages that might be obtained in a medical malpractice negligence action. Because the liability relates to the lack of consent to a procedure, rather than damage involved in a procedure, a patient may be able to recover damages even if the medical procedure was successful. In a negligence case, the patient must prove that damage occurred in order to be awarded a settlement.
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