Injured - The FindLaw Accident, Injury and Tort Law Blog

October 2016 Archives

If your first thought after a work injury isn't, "When can I get back to work," it's probably, "When can I get paid for getting injured at work." Missing work is tough, especially if you're missing paychecks, too.

If you got injured on the job, you probably know you can file a workers' compensation insurance claim. But how long is that going to take? While all cases are unique, here's a quick look at what to expect from your workers' comp claim.

If you are on SSDI and are considering filing a lawsuit or pursuing an injury claim, you may be concerned about how a settlement or court award could impact your receipt of benefits. Social Security Disability Insurance is a federal program designed to assist disabled individuals that are unable to work by providing those individuals with an income source.

While SSDI will want to know if you have received wages, the general rule is that an injury settlement or court award for an injury case are not wages, UNLESS a portion of that award is meant to compensate you specifically for lost wages. Also, it should be noted that if you receive punitive or exemplary damages, or any interest on the award, these may also be concerned as unearned income.

How an accident happens will largely determine who is ultimately held liable. If the at fault driver was found to have caused the accident while talking or texting, they will likely have more difficulty defending their case, and they may potentially face additional penalties. Nearly every state has laws on distracted driving, and most include some limitations on the use of cell phones by drivers.

Regardless of whether you have an ear piece, integrated Bluetooth, or speakerphone system, if you are talking or texting on a cell phone while driving, an officer or other party can claim that you were driving while distracted. According to the most recent report by the NHTSA, one in ten on the road fatalities involved distraction.

It happens all too often. A person hires a lawyer right after an accident, then months later when the medical treatment is all done, the lawyer they hired decides they no longer want the case. Don’t read into it too much. Some lawyers only handle cases if they are of a certain value or above. So unless your lawyer has ceased communicating with you, there are a few steps you can take to make sure your case can be smoothly transitioned over to a new attorney.

However, if your lawyer has ceased communicating with you, it might be a good idea to get a new lawyer, and have your new lawyer attempt to connect with the old lawyer. On rare occasion, lawyers get sick, die, or just plainly go missing without warning, just like any other human being. The most important thing is to find out your statute of limitations date, because if you don’t file a lawsuit by that date, your claim will expire.

There are fewer malpractice claims against pediatricians than any other specialty, according to a recent study. But that same study concluded that a higher percentage of pediatric claims went to trial. Perhaps that's because, pediatricians are tasked with providing medical care for our children, and their mistakes, though few, can be especially tragic.

Here's what you need to know about pediatric care and the possibility of medical malpractice lawsuits.

Recently, a Connecticut judge dismissed the lawsuit brought by the families of the victims of the Sandy Hook massacre against the gun manufacturer of the weapon used for the killings. Pursuant to a 2005 act signed into law by George W. Bush, the Protection of Lawful Commerce of Arms Act (PLCAA), the case was dismissed as the judge ruled the gun manufacturer could not be held liable.

Under the PLCAA, a gun manufacturer or dealer cannot be held liable for how a gun is used if the gun was sold legally. The families of the victims based their lawsuit on a theory of negligent entrustment, which is one of the few exceptions to the PLCAA.

It's easy to look back at medieval medical practices and wonder how they ever thought it would work. Theories about the four bodily humors may seem quaint in retrospect, but given the way medical knowledge and technology evolves, it's almost certain future generations will look back at medicine in our time and similarly wonder what we were thinking.

So which controversial medical treatments are still in practice? Here's a look at a few.

Last week, a Kansas-based manufacturer of food and beverage products accidently released a toxic chemical gas, a mixture of sodium hypocholorite and sulfuric acid, which sent over 100 people to the hospital. Fortunately, of the 125 people who sought medical attention, only two required an overnight stay in the hospital.

MGP Ingredients, which was responsible for the spill, explained that the gas spill had dissipated after only a few hours. Additionally, the company has reported the incident to the EPA and plans to fully cooperate with the investigation. The company is also taking additional measures to avoid any future spills by engaging outside experts to investigate and assess the situation.

When a chiropractor’s medical treatment causes a patient injury, that patient may be able to sue. While chiropractors are not medical doctors, they can still be liable for malpractice or professional negligence. State laws differ on what the action might be called, but each cause of action generally considers the same elements to prove a claim against a doctor or a chiropractor.

Injures alleged against chiropractors can be serious. For example, it was discovered that a famous model, Katy May, died at the age of 34 allegedly as a result of chiropractic treatment. After suffering from an on-set fall during a photoshoot, she hurt her neck. When the pain did not resolve itself, she sought chiropractic treatment. As a result of the treatment, an artery in her neck was pinched which caused her to have a stroke and die following the treatment.

Although this situation may sound like a textbook case of medical negligence, that may not necessarily be the case.

According to the National Highway Traffic Safety Administration, almost 20 percent of all traffic accidents involve distracted drivers, causing 3,179 deaths and an estimated 431,000 injuries in 2014 alone. And while drivers can be distracted by all kinds of things -- food, loud music, unruly passengers -- much of the attention has fallen on drivers texting and talking on the phone while driving. The NHTSA estimates 385 fatal crashes in 2014 involved the use of cell phones as distractions.

If all of these statistics make you wonder if cell phone companies are doing enough to prevent distracted driving incidents involving their products, you may have your answer soon. A new lawsuit against Apple, claiming the tech company is responsible for a fatal crash in Texas, may test the limits of liability for cell phone companies in distracted driving accidents.

When a pregnant woman goes into the hospital to have their baby delivered, they don’t expect to be suing the hospital over a botched delivery. Unfortunately, for three mothers in the Houston area, that was exactly their fate. They went into East Houston Regional Medical Center to have their babies delivered, and of the three, one child died and the other two were permanently injured during the birthing process.

As well as all going to the same hospital, the three women had the same doctor. Now, the three women also have the same lawyers, and all three are suing both the doctor and the hospital for the birth injuries.

It can be one of the most painful injuries imaginable. And of course it's right in the middle of your face. A broken nose can be an expensive injury as well, between immediate medical care, missed time at work, and any reconstructive surgery that might be necessary.

Generally speaking, a broken nose can either be the result of an accident, or an intentional act. And in either case you may be able to sue for your injuries. Here's a look at how.

The first lawsuit has been filed against Samsung as a result of the exploding Galaxy Note 7s that were recalled last month. Surprisingly, the lawsuit is not over the phone explosion itself, but rather the economic damages that the recall notice caused to consumers. A judge still needs to approve the class-action status of the lawsuit.

For the 1.9 million Samsung phones that were subject to the recall in the U.S., consumers were advised to cease using and power down their phones. That left the phones unusable, leaving many consumers not just without a phone, but still on the hook for pricey phone bills. That’s exactly what this lawsuit is covering, as well as incidental damages and loss in value.

Like few other drugs, the antipsychotic Risperdal can treat schizophrenia and bipolar disorder, and reduce irritability and aggressive behavior in autistic children. But like any other drug, Risperdal has side effects, including causing breast enlargement and diminished sexual functioning in young autistic boys.

These side effects have led to a slew of litigation, from patient lawsuits to charges from the Department of Justice. Here is a roundup of all the latest news on those lawsuits, from our archives.

Life in a nursing home is rarely any person’s ideal living arrangement, and when things go wrong, it can often leave nursing home residents confused about their legal remedies. Nursing homes are like a mix between hotels and hospitals, which can both be held liable, like any premises’s owner, for a slip and fall injury if it involved negligence.

Cases against nursing homes often present challenges and obstacles outside the legal variety of proving that it happened. Oftentimes, residents are afraid of making claims for fear of retaliation, or residents are unable to make a claim because of a physical disability. It is important to remember, especially if you are helping an elderly friend or relative, that they likely must continue to live there and may be uncomfortable with making a claim but not say anything to you.

Under the law, you can sue the same day an accident happens. However, before filing a lawsuit, you should have a good idea about how the accident happened, who caused it, and how much money you are owed as a result of the accident. If there is no concern over missing a statute of limitation, it is better to wait until you have more information about your damages before filing in court. In injury cases, damages will continue to grow as medical costs are incurred, as medical costs are part of the damages.

In car accident cases involving property damage only, where there are no injuries, you can file a lawsuit as soon as you know how much it will cost to repair your car, but that may not be advisable if the at-fault driver has car insurance. Usually car insurance companies are willing to negotiate about the value of the repairs. If the driver that caused the accident is uninsured, you may wish to proceed more quickly by filing a lawsuit and having it served immediately after finding out the repair costs.

We trust our doctors with our lives. And while part of that trust is in their medical expertise, all the technical skill in the world doesn't mean much if we don't think our doctors are telling us the truth.

You've probably heard of medical malpractice lawsuits against doctors who make mistakes, but what about malpractice claims against doctors who lie to patients? Here's what you need to know:

Having a pacemaker put in requires heart surgery, which is a very serious operation. Pacemakers are little devices that keep the heart beating in proper rhythm. Generally, the device is surgically implanted in the shoulder, stomach, or near the heart, and wires are attached from the device to the heart. The device works by constantly measuring the rhythm of the heartbeat and using little electric shocks to keep the heartbeat at the proper rhythm.

The main concern for people with pacemakers is that the device will just stop working or fail. When that happens, a person can lose consciousness, and it can be potentially fatal. When there is a problem with a pacemaker, or it stops working, the patient may be completely in the dark about what is going on because the device is inside their body.

There are countless reasons people choose to get plastic or cosmetic surgery. Sometimes it stems from vanity, sometimes it’s to cover up scars or conditions that make a person insecure or subject to ridicule, and sometimes it’s for conditions related to a person’s health. Whatever the reason for getting plastic surgery, it is no different than any other medical procedure in that there are risks involved.

Below are some of the common ways plastic surgery can go wrong.

It's rare, but every now and then we can find ourselves on the other end of a personal injury lawsuit. Someone could be saying that you caused the car accident, or that they slipped on your icy sidewalk. And while their claims may not seem to you to have any merit whatsoever, that doesn't mean that you can ignore them, or that a court or judge may not agree with you.

So what should you do if someone sues you for injuries? Here are a few tips:

A Salem, Oregon teen is suing his former school district after he suffered a traumatic brain injury as a result of slipping in another student's vomit on the basketball court. The lawsuit alleges that after a student vomited on the basketball court, the area was either not properly cleaned or not properly dried, and 15 year old Robert Amarillas, while playing basketball during an open gym session, slipped and fell on the vomit, or liquid left behind after cleaning it up.

The school district issued a statement in response to the previously filed lawsuit by Mr. Amarillas, which appears to have been voluntarily dismissed and just recently refilled. In their response, the district asserts that Mr. Amarillas was to blame for his own injuries, or perhaps someone else's misconduct was to blame. This case is not a typical negligence case as it involves not only premises liability, but school premises liability.

Lawsuits are only as good as the evidence. And this is especially true for personal injury lawsuits, which could rely on extensive physical and financial evidence in order to be successful. But what happens if evidence -- like photographs, handwritten notes, medical records, or receipts -- goes missing? Or what if you threw something away that you didn't realize could even be evidence in an injury lawsuit?

The loss or destruction of evidence is called spoliation, and courts may handle it differently depending on the type of case, the evidence involved, and how it was lost. Here's what you need to know.

Doctors have recently observed that domestic violence survivors are prone to the same neurological condition that retired NFL players are suffering: CTE. Chronic traumatic encephalopathy is a degenerative condition that causes cognitive decline, loss of muscle and emotional control, headaches, memory loss, and more. CTE is understood to be caused by repeated blows to the head.

While CTE would seem to primarily affect athletes who play contact sports, the results, showing that domestic violence victims frequently suffer from the same condition at similar or higher rates, are troubling. Studies have shown that 60 percent of domestic assault victims are diagnosed with traumatic brain injuries.

To weld is to wield the power to make and destroy, but with that power, comes the risk of serious injury. When a welding accident happens, the result is usually a severe injury involving second or third degree burns, loss of eye-sight, severe respiratory problems, and even death. OSHA reports that welders have a high incidence of death, as they report four out of every thousand career welders will die due to a welding injury.

Most frequently, when a person is injured as a result of a welding accident, that person is on an automotive, marine, or construction job site, as those industries use welding more than others. When a person is injured on a jobsite, unless that person is self-employed, they will likely qualify for workers' compensation. Workers' compensation is a type of insurance employers are required to maintain for their employees to cover injuries that occur at work.

Not every lawsuit has merit. And if you think you've been sued for no reason, you might be tempted to just ignore it. After all, why dignify false accusations with a response? While that might be a compelling perspective when faced with a verbal argument, the legal system doesn't quite work that way. And ignoring a lawsuit, rather than pointing out to a court why the lawsuit is frivolous, could mean the person suing you automatically wins.

Look no further than Hillary Clinton, who was declared in default by a court clerk for apparently ignoring a wrongful death lawsuit regarding her involvement (or lack thereof) in the attack on American facilities in Benghazi, Libya in 2012.

All surgeries have their risks, and when it comes to elective surgeries, the risk versus reward calculation can get far murkier. So murky, in fact, that plastic surgeons may need to inquire about a patient's mental state before assenting to a procedure.

At least that's what one Chicago lawsuit claims, after a patient underwent several cosmetic surgeries and died due to a pulmonary embolism. The woman's estate is now suing her doctors, claiming they failed to provide proper medical care by not giving her a psychological assessment prior to the procedures. It's a strange case, but may shed some light on whether you can sue for wrongful death after a botched cosmetic surgery.

All too frequently people sign contracts or agreements without bothering to read them. They just sign each blank that’s highlighted, or every line marked with a X. For plaintiff Patricia Evans from Pennsylvania, this proved to be the error that ended her injury case against the gym chain LA Fitness.

In November 2014, while working out under a personal trainer’s direction, the 63 year old was doing suicide runs when she fell and fractured her wrist. She alleged that her trainer was pushing her to go faster when the fall and fracture occurred. The fitness company prevailed on summary judgment, meaning that a trial never happened and a jury never heard the case, because Ms. Evans signed a release of liability form.

Arbitration and mediation are effective tools that can help quickly resolve your injury case well before you’d ever see a jury. Arbitration is basically a less formal trial that happens outside of court. In place of a judge, a neutral arbitrator issues a decision after hearing the evidence and arguments from both sides.

Mediation is less formal than arbitration and involves parties working with a neutral mediator who tries to get the parties to come to an agreed upon resolution between themselves. Both arbitration and mediation can be binding or non-binding, meaning that an agreement or decision made in either process will be enforceable (binding) or non-enforceable (non-binding) by a court.

Below are the Top 5 questions injury victims ask about arbitrating or mediating their claims.

Doctors are only human, and like us they can make mistakes. The hope is that medical errors will be benign, correctable, and won't permanently harm patients. But not all mistakes are created equal, and some can have catastrophic consequences.

Take pulmonary embolisms, or PE for example, where a blood clot or other substance blocks the pulmonary arteries in the lungs. If misdiagnosed or untreated a pulmonary embolism can be fatal. And if a doctor misdiagnoses PE, she might be liable for medical malpractice.

Joyce Little-Thomas was recovering from respiratory treatment at Select Specialty Hospital in 2009 when she was sexually assaulted and raped by Warren Butler, a certified nursing assistant at the facility. Little-Thomas sued the Augusta-based hospital for negligent hiring, retention, and supervision of Butler, on the grounds that the hospital knew he could be a danger to patients and did nothing.

Her lawsuit was finally settled last month, on the eve of trial, with Select Specialty paying an undisclosed amount to avoid a trial. So how is the hospital on the hook for its employees' actions? Here's a look.

Ms. Yee Xiong, the University of California, Davis student who woke up in 2014 the morning after a party to find a former friend on top of her, raping her, was sued by her assailant for defamation this year. The assailant, who pleaded no contest to felony assault a few months ago, served Ms. Xiong with a defamation lawsuit on the same day he was sentenced. The action sought $4 million in damages.

The lawsuit, which was quickly dismissed by a Yuba County judge, alleged that the assailant's reputation was damaged by Ms. Xiong and her sisters as a result of Facebook posts that they made and/or shared that called him a rapist. The assailant, despite pleading no contest to a non-sex related crime, is still required to register as a sex offender. The underlying rape case was tried twice, and was set to be tried a third time, as the first two trials resulted in hung juries, when the assailant accepted a plea bargain.

Last October, during fraternity’s outdoor party at USC, an attendee was hit in the head by a drone that was photographing the event. Not much is known about how the injury occurred. However, what is known is that the drone was being operated by the third party event production company known as Perfect Event Inc.

The drone’s impact on the head of the victim caused her to almost immediately start bleeding profusely, though she did not lose consciousness. The lawsuit, against both the fraternity as well as the event production company, alleges premises liability and negligence.

A big part of proving fault in a medical malpractice claim is demonstrating that a doctor or medical professional failed to meet a standard of care. And establishing that standard can often rely on testimony from other doctors and medical professionals who can say whether or not their colleagues met the applicable standard of care.

But according to one doctor, this kind of expert testimony can't always be trusted. Physician Lars Aanning admitted to lying on behalf of a fellow doctor in a malpractice trial almost 20 years ago, and his confession casts a shadow on all doctor testimony in medical malpractice cases.

While the number of Xarelto lawsuits continues to increase, the FDA issued a response to Portola Pharmaceuticals, makers of the potential Xarelto antidote, AndexXa. The FDA has requested more information which will delay the release of the antidote to the public.

The manufacturer of the anti-clotting drug, Xarelto, has been sued by over 7,000 individuals as a result of an alleged failure to warn users of the side-effects. Additionally, the drug has no antidote to immediately reverse the anti-clotting effect it has on the blood. In comparison, the leading anti-clotting drug, known as warfarin, stops being effective when a patient is injected with vitamin K. The antidote’s approval is being expedited due to the urgent need for a way to reverse the effects of Xarelto.