Washington, D.C. Personal Injury Blog

Monday, September 28, 2015

What is Whiplash?

Whiplash occurs when a person suffers a sudden impact that causes the head to snap forwards, backwards, or sideways. The violent force of this jerking motion causes the muscles, tendons, and ligaments to stretch or tear. Such injuries are sometimes classified as sprains or strains of the neck. Whiplash is most commonly the result of a car accident, but can also be the result of participation in contact sports like football, or from being the victim of an act of violence. Any time the neck is hyperextended or hyperflexed, a person is at risk for whiplash.

Symptoms of whiplash include muscle soreness, stiffness, and tenderness. Victims also typically suffer reduced range of motion. Other common maladies associated with whiplash include headaches, dizziness, fatigue, jaw pain, numbness and weakness in the extremities. Some people with whiplash experience ringing in their ears, blurred vision, and memory problems, though these symptoms are less common. Many people ignore whiplash symptoms which may prolong or worsen their consequences. Those who blame the soreness and stiffness of whiplash  on sleeping in an uncomfortable position and dismiss the pain as temporary often fail to seek treatment in a timely fashion. This can lead to more serious problems, including depression, anxiety, and sleep disturbances. It is important to seek medical attention and to treat whiplash symptoms as soon as possible after an accident in order to avoid complications. 

Doctors' opinions vary on the best way to treat whiplash symptoms. Different doctors may recommend icing the affected area, using painkillers or drugs to numb the pain, using a neck brace or collar to immobilize the neck, physical therapy and exercises to stretch the sore muscles, acupuncture, massage, or chiropractic manipulation. Many physicians may recommend a combination of strategies. Only a licensed medical professional is qualified to give advice on how to treat whiplash. 

An skilled attorney can handle the legal aspects of the accident to help ensure that the injured party can concentrate on the important work of physical recovery. The lawyer will obtain police reports, witness statements and other evidence to prepare a lawsuit against the individual responsible for the whiplash injury.  The lawyer will also document medical expenses, seek approval for required tests, and file a claim or a lawsuit on behalf of an injured party. The lawyer’s experience in dealing with insurance companies ensures that victims of whiplash-related injuries are reimbursed for their pain and suffering as well as for their medical expenses. 

Monday, September 14, 2015

Why Do I Need a Fence if I Have a Pool?

A person who has a pool, trampoline, swing set, or other similar structure in their yard is usually required, by their homeowner’s insurance, if not by law, to also have a fence. This is because these structures are seen by the law as attractive nuisances. This means that a child who sees a such structures, and who may not appreciate the danger they present, is likely to trespass on the property to play in, on, or with them and injure him or herself. The doctrine of attractive nuisance puts an obligation on a homeowner to protect these children who are incapable of protecting themselves. 

The law does not limit liability to instances where the attractive nuisance is a pool or another type of recreational device. Children’s imaginations are vivid enough to turn any sort of dangerous structure or equipment into a playground. Piles of loose lumber and abandoned cars have been found by courts to qualify as attractive nuisances. An attractive nuisance must: 

  • Be an artificial hazard in a place where children are likely to trespass
  • Create unreasonable risk of harm to children incapable of understanding that risk
  • Be a greater risk to potential victims than the utility of the hazard and the burden of its maintenance 

Determining when a child is innocent enough to qualify for protection under the attractive nuisance doctrine is also unclear. A person with diminished mental capacity may be considered a child for these purposes even if he or she is over the age of 18. The determination of who qualifies as a child is made on a case by case basis. 

Using a fence is a good way to make sure that a child passing by is not intrigued by a potentially dangerous condition. Even if the child is able to see over the fence, he or she will have trouble climbing over it, sufficiently discouraging the trespass in order to avoid liability for injuries sustained. A sign warning individuals of danger may be enough to protect a homeowner from liability, except when a child is unable to read the sign. Regularly inspecting property for potentially dangerous conditions and making sure trespassers stay away from your property are the best ways to avoid liability under the attractive nuisance doctrine.

Monday, September 7, 2015

What Do Insurance Policy Limits Mean for My Case?

An individual who causes a injuries to another person can be held economically responsible for those injuries by a court of law. Anticipating this, the law requires that those participating in potentially dangerous activities, such as driving, carry liability insurance to cover costs in case such an injury occurs. These insurance policies are meant to cover the damages suffered by a potential victim in a personal injury case. There are limits to what these policies cover, though they vary based on how much an insured person is willing to pay as a monthly premium. 

If a person is insured for up to $100,000, that individual’s insurance company will pay out up to $100,000.00 for substantiated damages suffered by the victim. If that victim’s injuries are more substantial, that is, if a jury awards more than $100,000, the balance of the money must be paid by the individual who is at fault instead of by the insurance company. 

An individual without insurance is often referred to as “judgment proof” meaning that, even if a jury awards a verdict against that person, the judgment that results cannot be enforced against him or her. As the saying goes, “you cannot get blood from a stone.” If a plaintiff in a personal injury case attempts to enforce a judgment against a defendant who lacks insurance coverage, the defendant may avoid paying by crying poverty and filing for bankruptcy. Such action may discharge the debts depending on the nature of the injuries and the accident. Similarly, any portion of a judgment owed by an insured individual without personal funds will be nearly impossible to collect. 

As a result, regardless of how much an individual has suffered as a result of the negligence of another, the amount he or she is able to collect is limited to the size of the defendant’s insurance policy. It is impractical to push a case to settle above the policy when it is nearly impossible to collect additional money. This pushes cases in which an individual has suffered catastrophic injuries to settle for substantially less than they might be able to receive if they were to go to trial. Although this seems unfair,  a lawsuit is the only practical way to resolve these disputes when a defendant’s insurance policy limits are too small to cover the plaintiff’s pain and suffering.

Wednesday, August 26, 2015

Three Real Examples of Medical Malpractice

Daryoush Mazarei: Unfortunately, it is not unheard of for a surgeon to leave a piece of equipment inside of a patient after an operation has been completed. Even though there are procedures in place to prevent this, doctors are human, and mistakes happen on a regular basis. What makes the case of Daryoush Mazarei so notable is that after the surgery, when Mr. Mazarei returned to the hospital complaining of intense pain and attempting to show the health care professionals the end of the 10 inch retractor that was protruding from his ribs where his surgeon had left it, he was told that his pain was in his head and referred him to a psychiatrist.  Eventually the retractor was removed. Mr. Mazarei’s case was settled out of court and the hospital apologized.

Dr. Farid FataDr. Fata is currently serving a 45-year sentence in prison after improperly diagnosing more than 550 patients for profit.  He prescribed extensive rounds of radiation and chemotherapy to patients who did not need it and treated terminal cancers aggressively instead of letting his victims die peacefully in order to rake in more than $17 million from fraudulent bills.  Although Dr. Fata’s fate has been decided, his victims and their heirs are still engaged in a court battle to determine if they will be compensated for Fata’s egregious conduct.

Jesica Santillan: It is especially tragic when a young person’s life is cut short by a terminal illness.  Jesica Santillan’s parents moved to North Carolina from Mexico when they discovered that Mexican doctors could not properly treat their daughter's heart and lung disorder. A local builder heard their story and started a charity to raise money for Jesica's transplant. Just as the family was filled with hope, a careless mistake was made. No one at the hospital checked to make sure the donated organs matched Jesica’s blood type before the surgery, and as a result, her body rejected the transplant, shutting her system down and causing her death two weeks later.  Santillan’s family settled out of court with the hospital for an undisclosed amount, but they will never get their daughter back.

Bryan Mejia:  Bryan Mejia was born with one leg and no arms because West Palm Beach doctors failed to properly read ultrasounds that would have disclosed his deformity.  His parents were awarded $4.5 million by a jury as a result.

Although these cases demonstrate extreme examples of medical malpractice, not every case is so obvious.  Only an experienced attorney can properly advise you if your case rises to the level of medical malpractice. 

Thursday, August 20, 2015

What is the effect of signing a liability waiver before engaging in an activity?

Before engaging in organized physical activities or sports, participants are almost always required to sign a waiver of liability for insurance purposes. Unfortunately, most of these documents use language that is unclear to the layperson. Frequently, people do not read what they sign; others read the words, but do not understand the content. Almost invariably, regardless of comprehension difficulties, individuals sign such waivers since they are a condition of participation. 

The content of liability waivers varies. The most common liability waivers are assumption of risk waivers. These state that the participant understands the inherent risks in the activity. By signing an assumption of risk waiver, for example, the participant acknowledges that he or she cannot sue the organizer of a football game for injuries incurred during the normal course of the game.

Another common liability waiver uses language about negligence or gross negligence. This covers the organizer of the activity for accidents caused by the organizer’s mistakes. A party acts negligently if he or she fails to observe a standard of care that a reasonable person would follow in similar circumstances. An example of negligence would be the failure to properly secure a harness to a person engaging in rock climbing. Waivers of this type are difficult to enforce. If the language of the waiver is difficult to understand, the waiver will usually fail a challenge in court.  

A waiver of gross negligence is unenforceable in most of the states in the U.S. Gross negligence occurs when the organizer fails to observe safety measures that even a careless party would normally follow. If the organizer of a dangerous activity fails to provide any safety equipment at all, this is an example of gross negligence. In spite of the fact that waivers under such circumstances will probably not be enforced, certain companies continue to require that they be signed by participants. 

If a waiver is required to participate in an activity, there is no reason it should not be signed, but there is every reason for the participant to understand what he or she is signing. Individuals should always be aware of the consequences of executing a legal document before signing it. If an injury occurs after a waiver has been signed, only a knowledgeable attorney can advise the client whether the waiver is likely to be enforceable.  

Monday, August 10, 2015

How do I know if I have a slip and fall case?

A person who slips or trips on another person’s property may be entitled to damages for resultant injuries. In order for a slip and fall to be compensable, there must have been an unsafe condition on the property. Unsafe conditions include icy accumulation, wet or slippery floors, badly damaged sidewalks and debris underfoot, among many others.

In addition to the existence of unsafe conditions, in order for the injury to be compensable, the owner must have known that the dangerous condition existed and allowed it to persist.This is the most difficult element for a victim in a slip and fall case to prove. Sometimes, the owner of the property causes the dangerous condition, such as when the floors of a department store are freshly mopped and slippery. At other times, the danger is not caused by the owner, but is obviously apparent, as is the case after a snowstorm. The owner of the property is entitled to a grace period to correct dangerous conditions.  But, while the problem is being fixed, the owner should put up a notice to warn individuals of the possible danger. Yellow boards are commonly used to warn of wet floors, and orange cones are often used to warn of ongoing construction.

If the dangerous condition is obvious enough to a casual observer, it may not be compensable since an individual has a duty to use a reasonable degree of care for his or her own safety. Even if the owner is at fault, if the injury is no more severe than a bruise or a slight sprain, a lawsuit is probably not the best course of action.  Lawsuits are usually reserved for more serious injuries like broken bones or spinal damage.  Only an experienced attorney can advise the individual involved in a slip and fall incident as to whether the case is strong enough to warrant a claim. 

Wednesday, July 29, 2015

Is Your Child's Booster Seat a Good Fit?

The seatbelts in cars are not designed with children in mind.  In a car accident or during a sudden stop, a child who does not use a booster seat is vulnerable to serious injury because the seatbelt is not positioned to properly restrain the child.  In fact, a seatbelt can actually cause additional injury to the child during an accident – for example, by cutting across the child’s stomach.

Booster seats are designed to elevate your child to a position where the seatbelt is positioned properly and will properly protect your child in case of a car accident or sudden stop.  Booster seats are not specially made for different types of vehicles, even though the seats and seatbelts are shaped and positioned differently in different models of cars, trucks, SUVs, and minivans.

When shopping for a booster seat for your child, how do you tell if the booster seat is a good fit?  Highway safety research tells us that there are three important measurements to consider when purchasing a booster seat for your child:

  • The child should be able to bend his or her knees easily over the edge of the booster seat.  If the child can’t comfortably bend his or her knees over the edge of the booster seat, he or she might slouch, which might cause the lap belt to ride up onto the child’s stomach
  • The lap band of the seatbelt should lie across the child’s upper thighs and hips.  It should not lie across the child’s lower or upper stomach, or across the child’s lower thighs.
  • The shoulder band of the three-point seatbelt should cross the child’s shoulder midway between the outside edge of the child’s shoulder and the child’s neck.  The seatbelt should not cross too close to the child’s neck or too far down the child’s shoulder or arm.

What are the dangers of a booster seat that does not fit properly?  They can be very serious, and in fact some doctors refer to the following common injuries as “the seatbelt syndrome.”

  • If the shoulder belt cuts too close to the neck or too far down the shoulder or arm, it can be uncomfortable.  The child may learn to tuck the shoulder belt behind his or her head, leaving the upper torso unprotected in a car accident.  Increased forward and backward movement during a car accident increases the likelihood of brain injury, neck injury, and spinal cord injury.
  • If the lap belt is positioned across a child’s stomach instead of across his or her lap, a car accident will cause sudden tightening of the belt across the vulnerable stomach area.  Serious injuries to vital organs or the child’s spine are very common in car accidents where the child’s lap belt is positioned across the stomach.

Various consumer safety organizations rate specific models of child booster seats for how well they fit a standard 4- to 8-year old in a variety of vehicles.  The follow sites offer insight into considerations when choosing a booster seat:

Insurance Institute for Highway Safety
National Highway Traffic Safety Administration

Be sure to check out the safety rating of booster seats before you buy one for your child.

Friday, July 17, 2015

Wrong-Site Surgeries Increase in Number

Imagine that you’re a patient going in for routine surgery.  Now imagine that you’re one of 40 U.S. patients a week who awakens from anesthesia– only to find that your surgeon has operated on the wrong site.  Say for example, your right leg instead of your left leg. What would you do? Sue your doctor? The hospital? A surprising report from The Joint Commission, which accredits and certifies healthcare organizations in the United States, finds that the problem of wrong-site surgery has worsened, not improved.  More and more medical patients are waking up to find that their doctors made an error in a common surgical procedure. 

According to Kaiser Health News, wrong-site surgeries continue to occur on a regular basis. This comes years after the president of The Joint Commission introduced mandatory rules aimed at preventing surgeons from performing procedures on the wrong site.  The study found that wrong-site surgery occurs an estimated 40 times a week in U.S. hospitals and clinics. However, according to the commission, which encouraged surgeons to submit cases of error, only 93 cases were reported in 2010.   

According to the commission, reporting of such incidents is voluntary and confidential.   This policy is in place to encourage doctors and hospitals to come forward .  Aside from the commission, the laws in about half the states, do not require reporting.   

Despite campaigns to encourage surgeons to participate in a timeout at the start of every surgery, where each surgical team takes a moment to verify the procedure to be performed, the article posits that the mistakes may be explained by the increased time pressures surgeons face. Because reporting is not required by many states, the number of estimated wrong-site surgeries could be a gross underestimation. 

Interestingly, a smaller percentage of wrong-site procedures are litigated in medical malpractice suits than one might think.  Settlements in these cases are substantially lower than those where the wrong-site patient seeks representation. 

According to a 2010 study, which reviewed 132 wrong-site cases, about one-third of procedures resulted in death or serious injury.   Despite these horrific outcomes, the average compensation to victims was approximately $80,000 in cases that resulted in a lawsuit and $47,000 in cases settled without legal action.  As incidents of wrong-site surgery continue to increase, patients and their advocates should continue to press for more accountability from their hospitals and their doctors. 

Monday, July 6, 2015

Importance of Credible Accident Reconstruction Testimony

If you have been injured in an automobile collision, your attorney may require the assistance of an experienced accident expert to help prove who is at fault for the accident. Generally, in order to recover any compensation for your injuries or property damage, you will have to prove that the other party was somehow negligent. Accident reconstruction experts are professionals who have obtained specialized training in order to analyze the physics of the accident scene, determine vehicle speeds and movements, and effectively communicate their findings to the court or insurance company representatives.

These professionals come from a variety of backgrounds, including science education, engineering, or law enforcement who have undertaken special training. These experts can evaluate the scene of the accident, develop calculations and assessments regarding how the accident occurred or how damages were sustained, and can testify to these facts and findings before a judge or jury. They do so by offering a variety of services, including site visits to the scene of the accident, taking photos, interviewing witnesses, applying the applicable scientific principles and preparing a final report. That report often forms basis for the expert’s testimony in court. Generally, the importance of the accident reconstructionist’s testimony is directly tied to the complexity or controversial nature of the accident in question.

Expert testimony regarding how an accident occurred is key to settlement negotiations. Using illustrations, simulations, models, animations and other methods, accident reconstructionists can show exactly what happened, how it happened, and how it could have been prevented.  Even if there are photographs of crash scenes and medical records, these can usually demonstrate the severity of the accident or damages sustained rather than proving who was at fault.

Usually, both sides hire their own reconstruction experts and, not surprisingly, those reports often conflict with one another. When this happens, the experts' credibility becomes a key issue. As in every case where there is conflicting testimony, the decision-makers must make a determination regarding which expert to believe.

Monday, June 29, 2015

What is a class action lawsuit?

Normally when a person suffers an injury as a result of another person’s mistake or wrong doing, that injured party has the right to file a lawsuit.  Sometimes, an injured party has a right to join a lawsuit that involves a large group of people.  These types of lawsuits are commonly referred to as class action lawsuits.  In these cases, the party who filed a lawsuit must be able to adequately represent the interests of all those who were also allegedly injured by the actions of the defendant.

A court must certify a class action lawsuit.  In order to be certified as a class, two main criteria must be met.  First, all the questions of law or fact in dispute must be common to all plaintiffs in the class.  That means that if a case requires that a plaintiff prove facts specific to his or her own case, it should not be included in the class.  Second, the number of plaintiffs must be large enough to make it impractical to try each case individually.  That number varies and will be decided on a case-by-case basis. 

The point of the class action is to maintain judicial efficiency.  The court system would be bogged down if every single person who purchased a drink with an improper label filed a separate lawsuit claiming unfair business practices.  The legal costs to the defendant would be obscene.  The logistics of bringing the same witnesses to court to testify over and over again would be impossible to deal with.  Class action lawsuits also serve to hold companies accountable for small mistakes that affect many people.  A company that practices deceptive advertising may only trick each consumer out of the price of one of their goods, hardly worth a lawsuit, but when hundreds of consumers band together to enforce their rights, justice is better served.

Once a group of individuals files a lawsuit against a defendant for an alleged wrongdoing, they are responsible to seek out other people who might have been affected and offer them an opportunity to join the class.  Each individual can choose whether to join the class and accept the settlement presented to the entire class, or to preserve his or her own right to file his or her own lawsuit.  Common class action lawsuits include suits resulting from an environmental disaster such as an oil spill, prescription drugs with unforeseen side effects, defective products, misleading advertising, price fixing and price gouging, securities fraud and employment discrimination suits.

Thursday, June 18, 2015

What is tort reform and what are some of the criticisms of it?

Tort reform is the name commonly given to a proposed solution to the rising healthcare costs in America.  Some people believe that medical malpractice lawsuits are the main reason why the United States has such high healthcare costs.  The argument is that because doctors are afraid of being sued, they have to conduct more tests than is reasonable.  Essentially, doctors complain that they are forced to be too thorough.  Also, it is believed that hospital bills are high because malpractice insurance premiums are high.  Therefore, by limiting the maximum amount that a Plaintiff could win in a lawsuit, malpractice insurance costs would be reduced, doctors would be free to practice as they see fit and prescribe fewer tests, and the savings would be passed on to the patients. 

This line of thought is not without criticism.  While doctors and insurance companies would surely benefit greatly from putting a cap on the amount of money damages awarded in medical malpractice awards, there is no cap on the amount of damage a doctor might do by making a mistake.  In the case of Colin Gourley, an OBGYN’s negligent prenatal care of Colin’s mother led to the boy being born with severe birth defects including physical, cognitive, and behavioral problems.  He was quickly diagnosed with cerebral palsy.  He will require round the clock care for his entire life.  A jury found that the hospital and the doctor should be responsible for these costs, and awarded the family $5,625,000.00 to cover the damages.  However, because of a law capping damages in such a case, their award was limited to $1.25 million, leaving a middle-income family with a bill of $4,000,000.00 that they had no means of paying.  This is only one case of many which demonstrates the real cost of putting a cap on damages.

The consequences of tort reform affect those who suffer the most as a result of medical mistakes.  Also, the amount of the cap is arbitrary and inherently unfair to those who were mistreated by the medical professionals in the first place.  The proponents of tort reform might better serve society by putting their efforts into lowering healthcare costs by coming up with a way to reduce medical error and inefficiencies. 

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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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