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Washington, D.C. Personal Injury Blog

Wednesday, February 22, 2017

What is pain and suffering?

Individuals who are injured in accidents that were due to the reckless or negligent conduct of others may be able to recover damages for pain and suffering. Let's take a look at the two types of pain and suffering and how victims can obtain compensation.


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Tuesday, February 14, 2017

Common Types of Personal Injury Cases

Thousands of individuals are injured in accidents in the United States every year. When injuries are caused by the negligent, reckless or intentional conduct of others, it is possible to obtain compensation by pursuing a personal injury claim. Some of the more common types of injury cases include:


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Monday, February 6, 2017

Medical Malpractice


There are always certain elements that need to be demonstrated in order to bring a successful malpractice action. For example, the treating doctor must have had a legal obligation to provide this medical care to this particular patient and there must have been a "breach," that is, an intentional or unintentional infraction or violation of the law. A breach usually occurs when the doctor fails to follow the “standards of the profession.” 

Medical malpractice is a tort (civil wrong) that may fall under a “negligence” action.  Negligence by a medical professional typically occurs when he or she neglects to protect a patient “from a foreseeable risk of harm.
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Monday, January 23, 2017

Insurance Bad Faith


If you or a loved one is injured in an accident you may be entitled to compensation which usually means dealing with an insurance company. Although insurers have an advantage because they have teams of attorneys and experts, the law requires insurance companies to treat claimants and policyholders fairly. While there may be legitimate reasons to deny a claim, an insurer that fails to engage in good faith and fair dealing may be held liable for bad faith.

What is bad faith?

Bad faith is a legal term for an insurer denying a claim without a reasonable basis. In first party insurance situations, bad faith arises when an insurance company denies a claim without a valid reason.
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Monday, January 16, 2017

Can You Sue City Hall?


Many individuals mistakenly believe that they cannot sue city hall, but this is not the case. Under the doctrine of sovereign immunity, town, city, county and state governments were once protected from most lawsuits. Today, those rules have been scaled back to some extent, and the government can be held responsible for personal injuries and property damage or unlawful conduct. Let's take a look at personal injury and other lawsuits that can be brought against government entities.

There are a number of ways the government can be held liable for accidents and injuries.
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Monday, January 9, 2017

What if more than one party is responsible for my injuries?


If you were injured in an accident, it may be possible to hold another individual accountable by pursuing a personal injury lawsuit. In some cases, however, more than one person may be responsible for your injuries. In these circumstances you may still be compensated under the doctrine of comparative fault: the allocation of responsibility under the theories of contributory and comparative negligence.

Contributory Negligence

In the few states that still rely on the contributory negligence approach, individuals have a duty to act reasonably and not put one's self at risk of injury. This means that if a plaintiff is even partially responsible for the accident, he or she may be barred from recovering damages.
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Monday, December 19, 2016

Negligence Claims Against the Government

When an individual is wronged or injured by a federal agency or government employee, that person may have an actionable negligence claim against the government. It is necessary to seek legal counsel to determine whether or not the government is immune in this particular case or whether a legitimate claim can be brought under the Federal Tort Claims Act (FTCA).

Pursuant to the FTCA, if the incident arose from an act by a federal employee who was “acting in the scope of” his or her employment, an action may be brought.  Claims against the government, however, are often complex, burdened with various restrictions.  It is always advisable to consult with an attorney in such cases, rather than attempting to bring a lawsuit independently.

The FTCA does not extend liability to every individual associated with the government, and claims are only permitted under certain circumstances.  For example, independent contractors employed by the government are only included under the act in exceptional cases.  Most often only a claim of negligence can be brought, rather than a complaint for deliberate wrongdoing.  Furthermore, the claim must be grounded upon, and cannot conflict with, state law.  

There are several steps to be taken in filing a lawsuit against the government. First and foremost, within two years from the date of the incident, an administrative claim must be filed with the agency that allegedly caused harm.  In order for the claim to be considered and investigated, a form has to be filed which includes all relevant facts and requested damages.  The claim for damages is limited; punitive damages are not typically an option. 

If and when the agency discards the claim, in whole or in part, a suit may be filed within six months of the date on the decision letter.  In most cases, all administrative remedies must be fully exhausted before seeking legal action.  If the agency does not respond, however, the complainant may be permitted to proceed with the lawsuit.  An attorney can best advise whether an action can be filed, whether the government has any plausible defense, and whether it is in the client's best interest to settle the case.  


Monday, December 12, 2016

Strict Liability

If an individual is harmed by a purchased device or product, damages may be recovered under strict product liability. The plaintiff, however, must be able to prove several things in order to prevail in suit against a distributor, manufacturer, or retailer. Generally, the product must have been “in an unreasonably dangerous condition” at the time of sale and intended to reach the consumer without any alteration.  Moreover, the injury suffered must be a direct result of the flawed product itself. 

Defects are not all created equal.  A plaintiff may bring a cause of action for either a manufacturing or design defect.  Generally speaking, in cases involving a  “manufacturing defect” only some products in the line of distribution will have been affected. The defect, for example, may have resulted from a malfunction in factory production. A design defect, on the other hand, which is integral to the product's structure, usually affects the entire line of the inventory, making each device dangerously defective.

Product liability can also be proven if a manufacturer does not provide adequate warning regarding a product's use. If the risk posed to the consumer is not patently obvious, the manufacturer is required to provide an understandable notice of warning to the customer. For an injured individual to win such a case, his or her injury must have resulted from the lack of warning or direction that could have prevented the injury sustained. 

If a plaintiff's injury results from that person's misuse of the product or his or her own negligence, that individual cannot prevail under the theory that the design or manufacture of the product was defective.

If an individual has been injured by a defective product, or because there was no evident warning of some dangerous aspect of the product's assemblage or use, a case of product liability may be brought. When considering whether to file a product liability lawsuit, an attorney specializing in the field should be consulted to assess whether the injured party has a viable case.


Monday, December 5, 2016

Defamation - Breaking it Down

Defamation has two basic forms: “libel,” the written form, and “slander,” the spoken form.  To establish either type, certain elements must be present. The false statement must be "published" and the false statement must result in injury. In terms of defamation accusations, “published” does not mean publication in a newspaper, magazine, or book— a statement is considered to be "published" when another party sees or hears it. In this context, speaking loudly enough to be heard by a third party may be considered "publication." False statements can also be made not only through spoken or written words, but by presentation of images or symbols.

There are, however, exceptions that make individuals immune to liability. These include absolute and qualified "privilege" and apply in special situations, such as in communications between spouses, in governmental proceedings, or in statements made in self-defense.

Privilege is not the only defense against accusations of defamation. Truth of the assertion is an “absolute defense” to an accusation of defamation.  A statement is not actionable or defamatory if it is honest. Likewise, a statement of opinion cannot be defamatory. 

Furthermore, one cannot recover damages for defamation if there has not been resulting injury or damage to the reputation of the other party.  Examples of damage include loss of employment, harassment, and loss of business contacts or friends.  It should be noted that public officials are less likely to be shielded from defamatory content.  Beyond proving the above-stated elements, a public official may be required to demonstrate the existence of “actual malice.”  "Actual malice" is generally defined as making a statement with knowledge that it was not truthful, or with “reckless disregard” for the honesty of the declaration. 

The discovery process in defamation cases may be lengthy because the jury must analyze all of the circumstantial evidence surrounding the statement in question.  Factors to be considered may consist of the place where the declaration was made, the relationship of the accuser to the accused, and the reasons or motives behind the assertion. Because of the complexities involved in defamation cases, expert advice from a licensed attorney is essential.


Monday, March 28, 2016

What is the difference between contributory negligence and comparative negligence?

Contributory negligence and comparative negligence are two different systems that courts use to determine whether or not a plaintiff can collect for his or her injuries through a lawsuit. When an injury occurs, the cause of the injury is often the result of the actions of multiple people, including the individual who was injured. If the plaintiff is responsible for a part of his or her own injuries, it can limit how much he or she may collect, or preclude the plaintiff from collecting anything at all.

In a jurisdiction that has adopted a pure contributory negligence system, a Plaintiff is not allowed to collect if he or she is even 1% at fault for the accident. For example, if a pedestrian is crossing the street and is hit by a speeding car, the pedestrian will not win a lawsuit for the injuries suffered if he or she failed to look both ways before crossing the street, or if he or she did not cross in a designated crosswalk. Some jurisdictions raise the threshold for acceptable fault on the part of the plaintiff.

Comparative negligence provides that the total amount he or she might receive in compensation for his or her injuries will be reduced by the percentage for which that person is responsible for his or her own injuries. Under this framework, a person who is 90% at fault in a car accident can still sue for any injuries he or she suffered, but can only recover 10% of those injuries.

Many states in the US utilize a hybrid between these two systems. Under a hybrid system, if a person is responsible for more than half of his or her own injuries, he or she will not be awarded any damages at all. That person’s total award can still be reduced by the percentage a jury attributes to the plaintiff’s own actions. Some states use different systems for different types of injuries. For example, in Indiana, medical malpractice claims are subject to analysis under contributory negligence, but car accidents use comparative negligence. This confusing structure makes it all the more important to ensure that a person hires a competent attorney to help collect on damages.


Monday, March 21, 2016

What is the burden of proof in a personal injury case?

“Burden of proof” refers to the requirement that a plaintiff must demonstrate to prevail in a lawsuit. In a criminal case, the burden of proof is “beyond a reasonable doubt,” meaning that the prosecutor must prove that a defendant is guilty to a degree that a reasonable person would not hesitate to think he or she committed the crime.

 In any civil case, however, the burden of proof is much easier to meet. In a personal injury lawsuit, the plaintiff must prove the facts in his or her favor by a preponderance of the evidence. This means that if the weight of the evidence is on one side, that side wins the case. It is a simple comparison. This is the reason why a person could be found not guilty of committing a crime, but still be held financially responsible for that crime. There are well known examples of cases in which those accused of murder won an acquittal in criminal court. When the victim’s families filed civil suits for wrongful death, however, the defendants were found liable. Even though the evidence presented in the criminal trials did not prove the defendants' guilt beyond a reasonable doubt, the preponderance of the evidence in the civil cases proved sufficient.

In every case, there are different elements that all must be proven by a preponderance of the evidence. For example, in a case for which a plaintiff claims that someone else’s negligence caused them an injury, that plaintiff must prove four separate elements. First, he or she must show that the defendant owed a duty to the plaintiff, second, that the duty was breached, third, that the plaintiff suffered an injury, and finally, that the defendant’s breach was the proximate cause of his or her injury. When there is a motor vehicle accident, the defendant’s duty is to follow the rules of the road and to drive safely. It is breached when the defendant fails to do so. A plaintiff also has to prove that he or she suffered real injuries and that those injuries are the result of the car accident. Without having proved all the elements of the case by a preponderance of the evidence, a jury will find against a plaintiff.


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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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