How do I Know if I Have a Medical Malpractice Claim?

Medical procedures do not always have the desired outcome; sometimes unexpected or unpreventable results occur and are not the consequence of medical malpractice. In order to have a claim for medical malpractice, your injury (or undesired/harmful result of a medical procedure or treatment) must have been caused by negligence by a healthcare professional. Medical professionals must meet the industry’s standard of care when treating patients. This standard of care is determined by the level of care other medical professionals or workers would provide to an individual under the same or similar circumstances. Healthcare workers that are held to this standard may include doctors, nurses, hospital staff members, dentists, other medical related workers or the hospital itself. If the standard of care is not met and the patient is injured as a result of this failure, the injured party may have a claim for medical malpractice. To determine if the facts of your case merit a medical malpractice claim, it is important to speak to an attorney knowledgeable in this area of law.

If you do have a claim for medical malpractice, you must be able to prove certain elements of your case to the judge or jury. There are four elements to prove, the first is that the defendant (medical professional or hospital) had a duty to the plaintiff. The second is that the defendant breached this legal duty and (third) the breach caused the plaintiff’s injury. Lastly, the defendant’s failure to meet the industry’s standard of care (negligence) caused harm to the plaintiff. The third element (causation) is often the most difficult to prove in a medical malpractice case. The plaintiff must show that the defendant caused his or her injury due to negligence; that the injury was not a typical (or common) result of the plaintiff’s illness or medical condition that could not be prevented.

Accordingly, the cause of the plaintiff’s injury may be actual or proximate. If the causation is shown to be actual, the plaintiff’s injury was directly caused by an action (or nonaction) by the defendant. If the defendant had not been negligent, the plaintiff would not have suffered injury. Thus, proving actual causation uses what is called the “but for” test; the injury would not have occurred “but for” the defendant’s negligence (or action). Likewise, the cause of the plaintiff’s injury may be proximate if it can be shown that the defendant’s negligence was the legal cause of the plaintiff’s injury. The proximate cause set forth a sequence of events that caused the plaintiff’s legal injury. Since actual and proximate causation may be difficult to prove, it may be necessary to rely on the testimony of an expert witness to show causation in your case. The facts of your case and kind of injury will help determine the type of medical expert you should have. Additionally, an attorney knowledgeable in medical malpractice litigation will be able to assist you in deciding if expert testimony is in your best interests to prove causation in your case.

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What Should I do if I’m in a Car Accident?

If you are in a car accident, there are some things you can do to protect yourself against any lawsuits that may arise from the incident. First, make sure you, and anyone else involved in the accident, is safe and call for medical assistance if needed. If you cannot get out of your car, wait for assistance to do so. If you can get out of your car, it is important to stay with your vehicle. This may be a safety issue, depending on the situation you are in, whether the area is dangerous or there is heavy traffic or other dangerous materials around you. Additionally, do not leave the scene of the accident before the police arrive or before exchanging information with the other person (or persons) involved in a minor accident. If you leave and someone was injured or killed you may be charged with criminal “hit and run” penalties.

The police should be called if the accident involves significant property damage, physical injury or death. Once the police arrive, ask the officer to file a police report and obtain the name and badge numbers of any police officers on the scene. You should also talk to the drivers of any other vehicles involved in the accident. Get their names, phone numbers, addresses, drivers’ license numbers, license plate numbers and basic insurance information. If there are passengers in any of the vehicles, obtain their names, telephone numbers and addresses as well. If there are witnesses at the scene, you may want to ask them what they saw and obtain their contact information, if possible. It is important when talking to other persons in the accident to be cooperative and exchange contact and insurance information, but do not admit fault or apologize for the accident itself.

After medical attention has been received and the police have arrived, you should inform your insurance company about the accident. Cooperate with your insurance company and tell them about the manner in which the accident occurred and the extent of your injuries. Build support for your case when discussing the matter with your insurance company and explain the facts of your case in a clear manner. Obtain and review a copy of the police report, if any, and give a copy to your insurance company if they do not already have one. The police report is useful to help determine who broke what traffic laws or who was at fault for the accident.

Next, you will want to keep a record of any care you receive after the accident and any expenses you incur due to the accident. This includes doctors, physical therapists, chiropractors, any other healthcare or treatment, medical bills or other expenses. Your insurance company may ask you for additional records as well, such as photographs of your vehicle before the accident and after (if you have them).

Lastly, you should not talk to anyone about the accident other than your attorney, your insurance company and the police. Do not talk to a representative of another insurance company without the knowledge of your attorney or your insurance company. If representatives from other insurance companies should call you, ask them to call your attorney or insurance company to arrange for an interview. Also, get the representative’s name and number, and tell your insurance company or attorney that someone seeking information about your accident contacted you.

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DISCLAIMER: This site and any information contained herein is intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.

Who is Responsible for Injuries Stemming from a Sexual Assault?

As the victim of a sexual assault, you may have civil claims against more than one party. It depends on the circumstances surrounding the assault. You may have a claim for compensation against the assailant, the assailant’s employer or another individual. The injured party (male or female) may have a personal injury claim for damages sustained as a result of suffering a sexual assault. To prove a personal injury claim, the victim must show he or she was sexually assaulted by the defendant (assailant) and was injured as a result (physically or emotionally injured). It must also be shown that the defendant caused the plaintiff’s injuries, either intentionally or due to negligence.

If the victim has a negligence claim against an employer or another third party, there are different elements that must be proven to the court. These elements are that the defendant owed the plaintiff a duty to keep them safe and the defendant breached that legal duty. Additionally, the breach caused the plaintiff’s injuries and the injuries suffered by the plaintiff were physical or emotional in nature. Since these are civil actions, and not criminal, the victim may choose whether to pursue a personal injury or negligence claim against the defendant.

What if a Sexual Assault Occurs in the Workplace?

If you were sexually assaulted in the workplace, you may have a negligence claim against your employer. You employer may have been negligent in keeping your building safe. For example, poor security measures, broken locks, poor parking lot lighting, etc. Similarly, your workplace may have been unsafe because it was a hostile environment. If you were being sexually harassed at work and your employer knew of this harassment, your employer may be held liable for allowing/permitting this environment, or failing to do anything to put a stop to it. An employer may also be held accountable for the actions of its employees without having knowledge of a hostile work environment and/or previous employee behavior. If your employers hired an employee with past sexual assault offenses, they may be liable for negligent hiring practices as well.

What Type of Compensation Could I Expect to Receive in a Sexual Assault Case?

If the fact finder (judge or jury) finds the defendant responsible for your injuries in a civil sexual assault case, you may be awarded damages for your physical injuries, emotional injuries and expenses incurred as a result of your injuries. Your physical injuries, whether temporary or permanent, may be taken into account when the judge is deciding your compensation. This may include pain and suffering as well. Moreover, any emotional consequences of your assault may be compensated, including fear, anxiety, trouble eating or sleeping or difficulty with personal relationships. The result of physical and emotional injuries may add up monetarily as well. Any medical bills, costs of treatment, loss of earning (due to the inability to work or fear of your workplace) or any other expenses caused by the sexual assault may be included in your amount of compensation from the defendant. The severity of your injuries, amount of financial expenses/costs and the circumstances surrounding the sexual assault may all determine the type and amount of damages you may be awarded in a civil sexual assault lawsuit.

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DISCLAIMER: This site and any information contained herein is intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.

What is a Class Action Lawsuit?

A class action lawsuit is an action where a group of people all has the same or similar injuries, which were caused by the same defective product, device, contamination, treatment, incident or occurrence. The group of people files one action and each member of the group is a class member of the lawsuit. It is logical and efficient to have only one action for injuries stemming from the same source, against the same defendant. If the plaintiff’s win the lawsuit, the damages will be divided among them in proportion to the injuries each individual has sustained. However, if the defendant wins the case, the class members (plaintiffs) are barred from filing a new claim, as either another class action or an individual action, against the same defendant for the same injuries.

In most cases, class action lawsuits are made up of a group of people with fairly minor injuries. Once added together, these injuries combine and count up, making the lawsuit more practical for injured parties. It is also more cost effective to litigate, what would be small claims, at one time. The court costs, attorneys fees and any witness fees will be absorbed by the group (or often paid from the winnings, only if the plaintiff’s win), as opposed to being paid by the individual plaintiff. However, if an individual has been severely injured and/or has the resources to pursue a separate claim, a class action lawsuit may not be the most appropriate choice for that individual. Therefore, it is important to speak to an attorney, knowledgeable in class action litigation, about your situation and the facts of your case if you are interested in initiating or joining a class action lawsuit.

Could I be in a Class Action Suit and Not Know It?

Generally, all persons affected by a class action lawsuit should be notified. The court will order the class action representative (often the named plaintiff in the lawsuit) to notify all persons who may be affected by the action’s outcome. In situations where the class is very large, individual notification may not be possible and would be unrealistic to pursue. Depending on the number of possible class action members and the facts of the case, the type of notification must be reasonable. Therefore, notification will often be in the form of a letter, flyer, announced in a magazine, newspaper or television. It may not be possible for every single person to be made aware of the lawsuit, but all reasonable method of notification, specified by the court, should be followed. Consequently, if you are notified of a class option lawsuit that you may be affected by, you will have the right to “opt in” to the lawsuit (join the lawsuit as a class action member) or “opt out” of the lawsuit. Be aware that if the class action has been filed with the court, it may be too late to opt out of the group at the time you are notified and each member of the recognized class will be bound by the court’s outcome.

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DISCLAIMER: This site and any information contained herein is intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.

What is a Toxic Tort?

A toxic tort is a growing area of law that covers a wide variety of injuries due to contamination, toxins and/or faulty medications or drugs. Some examples of injuries that would fall under toxic tort law would be lead poisoning, asbestos related injuries (mesothelioma), contaminated water, contaminated buildings, pesticides, catastrophic events, tobacco, radiation or injuries due to medications or medical devices. There are certain similarities that toxic tort claims share. First, the injury was caused by a dangerous/unsafe substance. Next, persons who came into contact with the substance became at risk for injuries (similar in nature). Usually, the extent of the injuries may not be known for a number of years. Additionally, the persons or entity responsible for the dangerous exposure are often numerous and difficult to establish based on the circumstances of the situation and the type of injury.

If you do have a toxic tort claim, certain elements must be proven to the court in order to establish your case. The first element is that the plaintiff (the injured party or another individual making a claim on behalf of the victim) suffered exposure to a toxic substance. Secondly, the defendant (or defendants) is responsible for the victim’s exposure. Generally, this means that the defendant (or defendants) action or nonaction contributed to the plaintiff’s injuries. Next, the plaintiff has suffered or is still suffering from injuries due to the exposure. Lastly, the toxic exposure is the cause of the victim’s injuries.

If I Have Been Injured by a Toxic Tort, Who is Responsible?

The party liable for your toxic tort related injury may vary depending on the injury, type of toxic tort involved and at what point the contamination took place. If you were injured by a dangerous product, the manufacturer, designer/architect/engineer, distributor or other retailer may be held liable; the parties that provide transportation of the dangerous product may be held accountable as well. Accordingly, if you were harmed by toxic waste, the company that disposed of the waste improperly, or property owners who did not dispose of waste on their land, may be responsible for your injuries.

In other cases, the toxic substances may be in the materials of a building, causing something called “sick building syndrome.” This is an illness that causes negative health effects in individuals when they are inside the contaminated structure, but they regain health when they leave the building. In this type of contamination the persons who designed, supplied the harmful materials or constructed (usually contractors) the structure may be held responsible for injuries caused by the contamination. Less commonly, employers (including the government) may be defendants in a toxic tort claim, if the facts of your case allow. There are laws precluding employers from being held responsible for workers injuries due to exposure to hazardous materials, so this claim is dependent on your specific situation. If you think your employer may be to blame (or partially to blame) for your injuries due to a toxic substance, it is important to speak with an attorney knowledgeable in toxic tort litigation to discuss the facts of your case and determine the appropriate claims for you to pursue.

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DISCLAIMER: This site and any information contained herein is intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.

How do Insurers Determine What a Car is Worth?

Insurers keep proprietary databases on car prices, similar to the Blue Book or the National Auto Dealers Association (NADA) Official Used Car Guide. The insurer’s valuation of your car is mostly based on its age. So, for example, your car might be totaled if it’s thirteen years old and receives only minor damage, and it might not be if it’s a brand new Porsche that has been in a devastating collision. If your automobile is “totaled,” that means that it would cost more to fix your car then the car is worth. Most auto insurance contracts contain a provision that states if your car is damaged in an accident, your insurer does not have to pay you more than your vehicle is worth. So if your car is “totaled out” by your insurance company, what you will receive is a check for the value of the car. Unfortunately, this is usually not enough to replace your car or to fix the damage to your car. Additionally, if you get back your car and use the money to fix it, insurers may refuse to provide more than basic liability coverage on your vehicle since it has been deemed a total loss.

If your car is totaled by your insurance company, it will usually be taken to a salvage yard, auctioned off and disassembled (“chopped up”) for parts. The insurance company will keep the money the car was purchased for at the auction. However, if you decide to keep your car and repair it, you should be able to do so. Many insurers will return the car to you if you request it, but this may vary from carrier to carrier. Other insurers will let you buy back your vehicle at its salvage price. In these situations, the insurer may deduct the salvaged (buy back) amount from your “totaled out” sum when they send you the check for the value of your car. Alternatively, certain insurers won’t return a car if it’s rare or newer, and the insurer thinks it will get a substantial sum at auction. If your car is returned, you will have to repair it and pass a Department of Motor Vehicles inspection to get your car back on the road. It is important to be aware that insurers may refuse coverage for a totaled car beyond basic liability insurance unless the car passes the DMV inspection. In addition, in order to have complete coverage on your totaled car again, you will have to have it completely repaired.

What Can I do if I Disagree With the Insurer’s Valuation?

Valuation problems arise in two ways. The most common problem is that the insurer’s valuation isn’t anywhere near enough to purchase an equivalent car in the marketplace. If you don’t agree with an insurer’s estimate of your car’s cash value, your best bet is to pay an independent appraiser to provide an estimate. You may need to bring in more than one, so the car will have to be fairly valuable to make this process worthwhile.

If an independent appraiser does not help you and your insurance company reach an agreement regarding valuation, you may try to resolve the matter either through arbitration or litigation. Arbitration is often less time consuming and less expensive than going to court. It is important to have an attorney during this process to look out for your rights and interests. If you choose litigation, be aware that going to court is rarely a cost-effective option. Unless the car was extremely valuable, and the insurance company’s offer is a tiny fraction of what you believe the vehicle was worth, you may spend more in attorney fees and costs than the amount you might recover. Speak to an attorney in your area to discuss your legal rights and options in pursuing litigation.

Copyright © 1994-2009 FindLaw, a Thomson business

DISCLAIMER: This site and any information contained herein is intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.

How do I Know if I Have a Personal Injury Case?

To have a personal injury action you must have suffered harm. The harm may be an injury to your person or personal property. It can also be the perception of harm, such as a threat (assault), which caused emotional injury. Your injury must be the result of an action or omission of another and must not have been caused by your own actions or negligence. If you feel you have suffered an injury at the hands of another, you may have a personal injury claim. It is important to discuss your possible claim with a personal injury attorney in your area. Different types of claims must be filed within a certain amount of time, or you cannot file your claim. This is called the statute of limitations; different jurisdictions and types of claims will have specific limitations that an attorney will have knowledge of and be able to communicate to you.

If you pursue your claim and meet with an attorney, there are certain documents and information that you should have to bring with you on your first meeting. The information will vary depending on your situation and your attorney may ask you to provide additional information then what is discussed here. In general, you should give your lawyer copies of any documents that may be related to your case. Documents may include, medical reports and bills, insurance information (policy and any communication you may have had with your insurance company or the other parties insurer) and any information you have about the incident. Information about the incident may include police reports, contact information of the other parties, insurer of the other parties, witness contact information and details about the situation when the occurrence took place. Any other information about the accident or event would be helpful for your attorney as well. This may include, photographs of your injuries or property damages and any other information you may have.

How do I Choose a Personal Injury Attorney?

If you have decided to pursue your personal injury claim, you will want to start researching attorneys to assist you with your claim. There are a number of factors you should consider when choosing the right attorney for your situation. Most often, you will want to hire an attorney who has experience with claims similar to yours. Look for an attorney who practices personal injury law, this will help ensure he or she is knowledgeable in this area of law, keeps up to date on any new developments in the law, has a record of past successes and verdicts in personal injury law and may have relationship and reputation with other legal professionals in the personal injury law forum, which could be beneficial if you are seeking settlement or litigation.

Furthermore, you should try to find an attorney that you can afford and who you feel comfortable working with. Ask your potential lawyer about their billing and fee structure. Often in a personal injury case, fees will be paid on a contingency basis. This means your lawyer will be paid if he or she achieves a settlement/verdict in your favor. The fees will be paid out of your damages/recovery. Make sure you discuss if your potential attorney offers contingency fees or another fee arrangement. Additionally, it is important to have an initial consultation, prior to hiring, an attorney. This is an interview for both you and the attorney to make sure the attorney would accept your case and that you are comfortable with him or her. Most firms provide free initial consultations; it is important to ask about this prior to scheduling your meeting.

Copyright © 1994-2009 FindLaw, a Thomson business

DISCLAIMER: This site and any information contained herein is intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.

Thousands entering Calif. schools without vaccines

By SHEILA V KUMAR and SHAYA TAYEFE MOHAJER Associated Press

September 26, 2011

Last year’s California kindergartners had a record high percentage of parents who used a personal belief exemption to avoid immunization requirements, a development that concerns state health officials.

More than 11,000 kindergartners missed at least one vaccine in 2010 because their parents decided to forgo inoculation. At nearly 2.5 percent of the state’s 470,000 kindergartners, that’s California’s highest rate of declined vaccines since at least 1978, the year before the measles, mumps and rubella vaccine was required.

The debate over childhood vaccinations has been growing throughout California, where last year a deadly spike in whooping cough cases killed 10 babies and sickened more than 9,100 people. The outbreak prompted a state law requiring middle and high school students to get booster shots before going back to school this year.

Copyright 2011 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

2 injured in explosion-fire in north Seattle

September 26, 2011

Two people have been injured in a fire at a north Seattle home that exploded around 6 a.m. Monday and was heard more than a mile away.

Fire Department spokesman Kyle Moore told KOMO Radio a man and woman in their 50s have been taken to Harborview Medical Center in Seattle with burns. One of them has life-threatening injuries and the other is serious.

Moore says the home appears to be a total loss. Firefighters are trying to protect two nearby homes from the flames.

Moore says it’s too soon to say if the explosion and fire are related to a natural gas leak that was reported Sunday in the neighborhood.

The fire is visible from Interstate 5.

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Information from: KOMO-AM, http://www.komoradio.com/

Copyright 2011 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

Police: Pa. man may have drowned trying to get gun

September 22, 2011

Police in Massachusetts say a Pennsylvania man with rope, a pulley, a flashlight attached to a headband and glow sticks may have drowned in a river while trying to retrieve a gun.

Haverhill (HAY’-vruhl) police say divers found a Glock semiautomatic pistol Wednesday in the Merrimack River. It was near the spot where the body of 30-year-old Matthew Bleistein of Lancaster, Pa., was found suspended by a rope around his waist on Saturday.

Investigators think Bleistein used with the rope and pulley to hoist himself over a wall.

Police tell The Eagle-Tribune ( http://bit.ly/oKkmVn) they think he may have dropped the gun in the river at some point and later tried to retrieve it.

Bleistein was in Haverhill to visit his grandmother.

The death remains under investigation.

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Information from: Eagle Tribune, http://www.eagletribune.com

Copyright 2011 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.