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Washington, D.C. Personal Injury Blog

Wednesday, April 30, 2014

Federal Agency Proposes a Centralized System for Reporting Medical Errors

Currently, there is no centralized system to report hospital or medical malpractice, and research indicates that reporting rates are very low.  The federal Agency for Healthcare Research and Quality (AHRQ) has proposed a new, centralized system for consumers to file complaints about harm suffered while receiving medical care.  


Information About Reporting Rates for Medical Errors
Because no centralized complaint agency exists for reporting medical malpractice, accurate statistics about the medical error rates in the United States are difficult to come by.  A 2010 review of medical records by the inspector general of the Department of Health and Human Services (HHS) revealed that about 134,000 Medicare patients were harmed in the hospital in a single month. Another HHS report revealed that hospitals report only about 1 percent of adverse medical events they are required by state law to register.  The report went on to state that the low percentage is most likely due to hospitals’ failure to identify medical errors that occur in their facilities, as opposed to failure to report known medical errors.

In short, available data suggest that hospital error reporting does not accurately reflect the number of hospital errors that actually occur.  The data also suggest that one reason for low reporting may be that hospitals do not have accurate systems in place to identify adverse medical events resulting from medical negligence or medical malpractice.

Why Are Hospital Errors and Medical Malpractice Incidents Rarely Reported?
Hospitals may need to improve their reporting procedures if hospital error data are to more accurately reflect reality.  There are other reasons for low reporting rates, as well.  Patients who suffer from hospital errors may be too traumatized to make the report, they may be focusing on other aspects of their lives after a disabling medical error, or they may find the current reporting bureaucracy too complex to navigate.  Without a centralized reporting system, patients and their families must choose from several different complaint options:

  • The state medical professional licensing board
  • The state public health department
  • The Joint Commission, which accredits hospitals
  • A Medicare Quality Improvement Organization

These different agencies do not have procedures in place to communicate complaints among one another, and no agency collects accumulated data from all agencies into a centralized location.

Summary of the Agency for Healthcare Research and Quality’s Proposed Program
The AHRQ’s proposal is to design a prototype system to collect information about patient harm events, to test telephone and internet patient questionnaires, and to test follow-up surveys of health care providers after a report of hospital error.

You can Visit the Federal Register Website for information about commenting on the AHRQ’s medical error complaint prototype system.
 


Sunday, April 20, 2014

Deposition Do’s and Don’t’s

Matters that are subject of litigation are ultimately decided on facts and the applicable law. The process by which parties uncover those facts is called discovery.  There are many tools in the discovery toolbox.  A deposition (questioning of a party or witness under oath, often referred to as a “dep” or “depo”) is one of the most powerful tools.

At the start of the proceeding, the judge sets a date by which depositions are to be completed.  Attorneys issue subpoenas requiring a party or witness to appear at a certain place on a certain date and time (production of documents or other evidence may also be requested).  A court reporter is present to create a record of the questions and answers.  Some depositions are video recorded.
 
At the deposition, both parties should have their attorneys present.  A witness can have his/her own attorney present if he/she so desires.  Those testifying are placed under oath, and the attorney issuing the subpoena then starts the questioning.  Next, the opposing attorney has a turn to ask follow up questions.  This normally goes back and forth until the attorneys are done.  
 
Depositions aren’t just about questions and answers.  Just as critical as what was said can be how it was said.  Was the person evasive?  Uncomfortable?  Credible?  Nervous?  Sure of the facts?  Would the person damage or help the case if testifying in court?  These issues can be critical when deciding whether to settle a case or proceed further.  If one party’s witnesses are much weaker than those of the opposition, it may make that party much more willing to settle.
 
If you’re going to be deposed, you should keep the following in mind:
 
Tell the truth.  If you knowingly make a false statement while you’re under oath, you may be charged with perjury. In addition, you will lose credibility, and weaken, your case.
 
If you honestly don’t know the answer to a question, say you don’t know.  A deposition isn’t a contest and you won’t lose points by truthfully admitting you don’t know something.
 
Stick to the point and answer the questions as asked.  Needlessly stating information not requested may damage your case.  
 
If you don’t understand a question, ask that it be repeated or re-phrased.  If you feel you need to talk to your attorney before answering, ask to speak to your attorney. After doing so, answer to the best of your ability, in light of your attorney’s advice.  Your attorney may object to a question, but you may have to answer it anyway.  Prior to trial, your attorney may ask the judge not to use the response as evidence, as the question was improper. 
 
Though depositions can be stressful, they are not to be feared.  They are opportunities for all parties involved in a legal matter to tell their side of the story.  
 
 

Thursday, April 10, 2014

Serious and Catastrophic Injuries: Is Your Attorney Up to the Job?

It’s not at all unusual for personal injury attorneys to handle cases involving a wide spectrum of injuries resulting from dog bites, car accidents, poorly maintained sidewalks or defective products. Generally, these injuries are relatively minor-cuts, bruises, broken bones and whiplash. Fewer attorneys, however, have extensive experience with catastrophic injury cases such as those involving dismemberment, brain injury and severe burns. It’s difficult, for instance, to convince insurers that the loss of a limb is worth the full limits of an insurance policy. It also requires a special ability to convince a jury that a brain injury has caused subtle but important changes in personality, memory and the ability to perform specific tasks related to an occupation. 

In addition to a successful track record of obtaining outstanding compensation for individuals with similar injuries, your attorney should have a network of medical professionals who can provide insight into your claim, as well as expert testimony in trial. Only a physician can prove that hard-to-detect memory issues affect a person’s ability to perform the activities of daily living. A life care planner can accurately estimate the long-term costs of necessary at-home medical care. And a mental health professional can effectively identify, document and demonstrate hard-to-detect personality changes following a traumatic brain injury. When meeting with a personal injury attorney, ensure that he or she has a network of medical consultants that can be called on at key points in your case. 

By working with an attorney who can demonstrate the knowledge and experience needed to effectively handle your serious injury case, you can take a step towards ensuring you will receive the financial compensation you need and deserve. 


Sunday, March 30, 2014

Wrongful Death

If you watch the evening news or read the local paper, you’ve probably come across the term “Wrongful death.”  Legally speaking, wrongful death is a term used for a type of action that can be filed by the heirs and beneficiaries of a person who was killed because of the wrongful conduct of another person. Wrongful death laws are intended to provide compensation to help support the dependents of the deceased.

Conduct that can result in a wrongful death claim include negligence, such as reckless driving, or intentional crimes such as assault or murder. In most states, the standard of proof for wrongful death cases is a preponderance of the evidence meaning that the injured party has to prove to the jury that there is a greater than 50% chance that the defendant’s negligent or criminal actions were the cause of death. This differs from criminal cases where the prosecutor must show proof beyond a reasonable doubt, a much higher standard. Therefore, it’s often easier for survivors to prove a wrongful death case than it is for prosecutors to prove a criminal case. One well-known example is the O.J. Simpson case where the survivors of Ron Goldman and Nicole Simpson chose to sue for wrongful death and won after O.J Simpson was acquitted in the criminal case.  


Read more . . .


Thursday, March 20, 2014

How are Damages Calculated in Personal Injury Cases?

How are Damages Calculated in Personal Injury Cases?

If you have been injured as a result of someone else’s negligent conduct, you may be considering a lawsuit to recover compensation. The compensation awarded to you, called “damages,” falls within two categories: compensatory damages and punitive damages. Compensatory damages are designed to compensate the plaintiff for actual losses sustained, and are further divided into “special damages” and “general damages.”

Special damages are those fixed amounts relating to your actual losses, such as medical expenses, lost income or costs to repair your property. General damages, on the other hand, include non-monetary losses, such as “pain and suffering”, your decreased ability to perform certain functions, or the loss of a loved one. Punitive damages, sometimes called exemplary damages, are designed to punish a defendant or deter similar conduct in the future.

The damages to which you are entitled are typically calculated based on the severity of your injuries, the underlying circumstances of the incident in question, and whether the case settles or proceeds to a trial. The following factors are typically considered:

  • Medical treatment expenses
  • Estimated costs of future medical treatment or therapy
  • Past lost wages or income
  • Future lost wages or income
  • Costs to repair or replace damaged property
  • Your out-of-pocket expenses, such as insurance deductibles or copayments
  • Rental car expenses
  • Funeral expenses, in wrongful death cases
  • Emotional distress
  • Pain and suffering
  • Punitive damages, if the underlying act was particularly egregious or intentional

In the American legal system, damages are intended to compensate the plaintiff sufficiently to make him or her “whole,” i.e. restore the plaintiff to the same position he or she was in prior to the accident or injury. If you mediate your dispute or otherwise settle it out of court, the parties and lawyers will negotiate each item and come to an agreement. If your case is tried in a court, the judge or jury will calculate how much you are entitled to receive, based on the evidence presented at trial.


Monday, March 10, 2014

Alternative Dispute Resolution Might Be the Right Way to Bring a Case to a Close

 Civil lawsuits arise because of a dispute between parties.  They’re unable or unwilling to resolve the dispute, so they get lawyers involved and cases are filed.  The litigation process is a way to resolve those issues with the help of a judge or jury.  But that’s not the only way to resolve a dispute.  

 
There are costs and benefits to litigation.  The obvious benefit is that a party may get the resolution it wants.  In a commercial context, pursuing litigation can also serve as a notice to others that the business does not hesitate to enforce its rights. But, the costs of litigation are many.  

Read more . . .


Friday, February 28, 2014

What Not to Do After a Car Accident

What Not to Do After a Car Accident

There are many potential missteps after you have been involved in an auto accident. In the minutes, hours and days following a car wreck, it can be difficult to think clearly or to take note of important factors involving liability and compensation. Even if your injuries are minor and your vehicle is not damaged, you should follow these guidelines to protect yourself and preserve your right to compensation for your injuries, vehicle damage or lost income. Often times, your damages are more serious than they appear at first glance.

Don’t Apologize
Even if you think you are clearly at fault for the accident, don’t accept blame or apologize to anyone. The police and insurance adjusters will investigate the collision and determine where the fault lies. If it lies with you, you will most certainly be notified. But affirming your guilt before all the facts are discovered can only serve to undermine your personal injury claim or a potential defense if you are on the receiving end of a lawsuit.

Don’t Compare Notes
Avoid rehashing the accident with the other involved parties. You do not want to inadvertently admit fault for the accident, or make other statements that undermine a future legal claim. Additionally, swapping stories can cause confusion in your own mind regarding what happened immediately before and during the collision. Of course, you should give your statement to the police, if applicable. But further communications regarding the accident, your injuries, damage to your vehicle, or associated expenses for medical treatment or car repairs should be limited to your attorney.

Don’t Get into a Dispute with Other Drivers or Passengers
Tempers can sometimes flare. People may be hurt, property may be damaged. Nobody is getting to their destination, and everyone may be concerned regarding various obligations and future travel arrangements. If other parties become upset, agitated or violent, you should simply walk away. By refusing to engage in emotional dialogue – or worse, a physical confrontation – you avoid turning a routine fender bender into a major altercation which can result in its own legal ramifications.

Don’t Call the Insurance Company
If you think there is any reason why the insurance company may dispute your claim, you should speak with an attorney first. The attorney can advise you regarding what to say – and what not to say – to the insurance adjuster, or can communicate with the adjuster on your behalf. Insurance companies train their adjusters to ask specific questions designed to make your case look as weak as possible. Your insurance company should help you when you’ve been involved in an accident – that’s part of what you pay for – but ultimately the bottom line is of primary importance. The insurance business is far more profitable when the insurance companies do not have to pay out claims.
 


Thursday, February 20, 2014

Cities With the Best and Worst Drivers

Cities With the Best and Worst Drivers

Sioux Falls, South Dakota, is “America’s Safest Driving City” for the fifth time in eight years, according to Allstate Insurance Company’s annual safe driving report, released August 28, 2012.  Allstate has compiled the report for eight years in a row, using data from insurance claims made to the company.  The report ranks the 200 largest U.S. cities from safest to most dangerous based on car accident frequency.

The top 10 safest driving cities in the United States, according to the Allstate report, are:

  1. Sioux Falls, South Dakota, where drivers file car accident claims every 13.8 years, 27.6 percent less often than the national average of 10 years
  2. Boise, Idaho – 27.3 percent less often
  3. Fort Collins, Colorado – 26.7 percent less often
  4. Madison, Wisconsin – 23 percent less often
  5. Lincoln, Nebraska – 19.3 percent less often
  6. Huntsville, Alabama – 19.1 percent less often
  7. Chandler, Arizona – 18.9 percent less often
  8. Reno, Nevada – 18.4 percent less often
  9. Knoxville, Tennessee – 18.1 percent less often
  10. Springfield, Missouri – 17.4 percent less often


The 10 most dangerous driving cities in the United States, according to the Allstate report, are:

  1. San Francisco, California – 54.6 percent more often
  2. Miami, Florida – 58.4 percent more often
  3. Newark, New Jersey – 59.4 percent more often
  4. Alexandria, Virginia – 62.6 percent more often
  5. Philadelphia, Pennsylvania – 64.1 percent more often
  6. Glendale, California – 77.5 percent more often
  7. Hialeah, Florida – 77.6 percent more often
  8. Providence, Rhode Island – 80.9 percent more often
  9. Baltimore, Maryland – 87.9 percent more often
  10. Washington, D.C. – 112.1 percent more often


The report indicates that big-city drivers have more car accidents, statistically, than drivers in smaller cities or towns.  In cities of more than one million people, only Phoenix drivers filed car accident claims less often than the national average of 1 every 10 years.  Phoenix beat the national average, however, by only 0.2 percent.
 


Monday, February 10, 2014

What Should You Do When Your Insurer Wants to Settle Your Personal Injury Case?

What Should You Do When Your Insurer Wants to Settle Your Personal Injury Case?

Hint: When You’re Injured, Your Relationship with Your Insurer Changes

Have you ever marveled at how much better an airline, retailer or other business is at processing your order and taking your money than it is at providing a refund? The reason isn’t technological and it isn’t because the refund process is somehow more difficult. It’s because the nature of the relationship between you and the business has changed. You are no longer a prospective customer the business is trying to woo or a current customer the business is trying to please. Instead, you’re a liability. And liabilities are on the bottom of most businesses’ priority list. 

Likewise, when you are looking to buy car insurance or other insurance involving personal injury, insurers are anxious to “sign you” and lock in the premiums you’ll pay. When you’re injured though, you area liability and chances are you’ll be treated like one. 

Following an Accident, Your Insurer May Try to Save Money at Your Expense

Here’s how most insurance companies respond to news of a serious accident on the part of one of their insureds. 

Perhaps a car accident has resulted in the need for expensive surgery, physical therapy and home care. Like everyone, you’re afraid of a protracted delay in the payment of your medical expenses and other costs. Your insurer is aware that you’re likely experiencing this anxiety. 

By offering you a quick settlement, the insurer can capitalize on your anxiety by offering you far less than your claim for damages is likely worth. For instance, perhaps you’re insured for $1 million. Your medical costs and other losses may total $300,000. By offering you a fast settlement of $75,000, your insurer can appear helpful and concerned while actually saving $225,000.

Not all insurers handle claims like this example every time, but you should be aware of insurers’ motivations following an accident and make informed decisions accordingly. The best way to make informed decisions is with the assistance of an experienced personal injury attorney. 

A Personal Injury Attorney Can Protect Your Rights and Interests.

A qualified personal injury attorney can protect your interests by dealing knowledgeably with the facts of your case. What is the likely extent of your injuries? What are the limits of your insurance policy? What would a jury likely award you based on the facts of your case? And what is the actual value of your case, based on the answers to these questions?

Once your attorney investigates your case in conjunction with medical providers to assess your injuries and determines the value of your claim, he or she can work from a position of strength to negotiate with your insurer. Remember, an insurance policy is a legally binding contract. If you’re injured and covered by insurance, your insurer is obligated to pay you the full value of your claim, unless you make the mistake of settling for a lesser sum early in the process. Contact a personal injury lawyer as quickly as possible whenever questions regarding insurance policy payouts arise. 


Thursday, January 30, 2014

Good Samaritan Laws: Should I help a stranger in need of medical attention?

Good Samaritan Laws: Should I help a stranger in need of medical attention?

Sometimes, individuals are in need of urgent medical attention. There aren’t always trained professionals around to help. Ordinary citizens who see someone in distress could be afraid to help, for fear that they may be held liable for doing something wrong. Good Samaritan laws originated to avoid that scenario.

As a result, many states have enacted “Good Samaritan” laws that protect people who come to the assistance of others from legal responsibility.  Good Samaritan laws in general provide that a person who sees another person in imminent danger, and tries to rescue the injured party, can’t be charged with negligence if the rescue attempt does not go well.

Good Samaritan laws are intended to encourage people to assist others by removing the fear of legal responsibility for damage done by the rescue attempt. For example, a Good Samaritan may see an overturned car beside the road, and discover the driver is trapped. If the Good Samaritan pulls the trapped driver out of the car, he or she may exacerbate the driver’s injuries. If the driver suffers a spinal injury while being pulled out of the car, he or she cannot later sue the Good Samaritan for negligence under the Good Samaritan law of his or her state.

In general, in order to use the Good Samaritan law as a defense to negligence, there are four elements that must be met. First, any assistance provided must be given as a result of an emergency. Second, the emergency that necessitated the care can’t be caused by the Good Samaritan. Third, the emergency services provided by the Good Samaritan can’t be given in a grossly negligent manner. Finally, if it’s possible to obtain permission from the accident victim, the victim must have given permission for the rescue. This may involve calming the person down before asking if he or she needs assistance. One extra requirement in some states is that the aid rendered must be free – if a doctor renders aid and sends a victim a bill later, the doctor could lose protection under the Good Samaritan law.

Currently, all 50 states plus the District of Columbia have some form of Good Samaritan law. There are many variations on the laws from state to state. Some states have different standards for emergency first responders, and some Good Samaritan laws limit who can provide medical assistance to someone in need. Also, most states providing Good Samaritan protections require that the medical care take place outside a hospital or other medical facility – so if a person goes into distress inside a hospital, and a professional renders aid, that person can be held liable if the aid is rendered negligently.

Another type of Good Samaritan law actually requires people to call 911 in some situations - usually if you cause an accident and someone is hurt, or if you happen upon an accident. For example, Vermont has a law that says if an individual sees someone who needs help, that person must call 911 or could face prosecution. This type of Good Samaritan law is not as common, but it’s important to be aware of your state’s requirements for mandatory assistance.
 


Monday, January 20, 2014

Be Wary of Carbon Monoxide Levels During Winter

Be Wary of Carbon Monoxide Levels During Winter

If you live in cooler climes, winter is a time to take precautions against carbon monoxide poisoning.  Residents of the northern parts of the country are starting to seal up their homes to keep them warm over the winter, which can increase the threat of carbon monoxide poisoning.  

According to the Centers for Disease Control and Prevention, carbon monoxide poisoning is the leading cause of accidental poisoning deaths in the United States.  Rates of injury and death are highest in the winter and among residents of the Midwest and Northeast United States.  To minimize risk, it is important to understand the symptoms of carbon monoxide poisoning and how to prevent it in your home and other sealed locations like your car and garage. .

Carbon monoxide is a dangerous gas that you cannot see, smell, hear, taste or feel.  Without detection equipment, your first clue that carbon monoxide is present may be symptoms of poisoning in yourself or a loved one.  Many household appliances produce carbon monoxide, including oil- and gas-burning furnaces, portable generators and charcoal grills.

Symptoms of Carbon Monoxide Poisoning
A person with carbon monoxide poisoning may exhibit flu-like symptoms, such as:

  • Headache
  • Dizziness
  • Chest pain
  • Nausea and vomiting
  • Fatigue
  • Confusion

Pets as well as humans can exhibit these symptoms.  If anyone in your home shows these signs, it is important to immediately:

  • Provide fresh air, either by leaving the premises or opening all doors and windows
  • Put distance between the victim and the likely source of the carbon monoxide
  • Call 911 and state that you suspect carbon monoxide poisoning
  • Get medical attention for the victim
  • Have your home inspected before returning (your local fire department or police department should be able to help with this)

Preventing Carbon Monoxide Poisoning
Carbon monoxide can easily be fatal if untreated, especially among children and the elderly,.  Increase your family’s peace of mind by taking the following steps to prevent carbon monoxide poisoning:

  • Install CO detectors outside every bedroom and in the basement or where your oil or gas-powered appliances are.
  • Get regular service for appliances that use oil or gas.
  • Do not use appliances to heat your home that are not built for that purpose, such as portable camping stoves, lanterns, charcoal grills or your oven.
  • Never sleep in a room heated by a gas or kerosene space heater.

Taking these simple steps can keep your family safe from CO poisoning throughout the winter months.
 


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Richard F. Silber is admitted to practice in Washington, D.C. and Maryland. From his office in Georgetown, he and his legal team assist clients throughout the Washington metropolitan area.



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| Phone: 202-338-0687

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