Washington, D.C. Personal Injury Blog

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. 

Tuesday, June 2, 2015

What is soft tissue damage and how is it treated?

Soft tissue damage refers to damage done to the muscles, ligaments, and tendons throughout the body.  Often referred to as sprains, strains, contusions and tendonitis, soft tissue damage is usually caused by a traumatic event such as a slip and fall or a traffic accident.  It can result in swelling, bruising, and loss of function.   Immediately after an injury, the area affected by soft tissue damage should be protected, rested from any strenuous activity, kept cool with ice to regulate swelling, compressed and elevated.  If pain continues after 72 hours, it is likely that the injury is more than a simple sprain or strain.  When the soft tissue is inflamed for a long period of time it could result in serious, long-term damage.

When soft tissue damage exists in the back and the spinal column is compressed, it may result in what is commonly referred to as a pinched nerve.  Each vertebrae is separated by a gel filled sac that acts as a cushion between the bones.  When the muscles surrounding and supporting the spine are inflamed, it pushes the bones together, squeezing the sac and causing it to bulge, called a bulging disc.  In more serious cases, the sac actually ruptures.  This is called a herniated disc.  Besides being incredibly painful, these conditions can result in weakness or numbness in the extremities, known as radiculopathy.

MRI can confirm the existence of a bulging or herniated disc.  Treatment varies depending on the severity of the case.  For some, physical therapy and chiropractic manipulation will be enough to heal the damaged area.  This is considered conservative treatment.  There is the possibility that an epidural injection to the affected area could help reduce inflammation and give the injury an opportunity to heal.  If nothing else is successful, spinal fusion or decompression may be an option to reduce pain. A doctor should be consulted before engaging in any sort of treatment.  

Thursday, May 28, 2015

Can I Sue for Defamation?

Assuming you are, in fact, not a drug dealer, you may be able to successfully bring a civil lawsuit for defamation. Defamatory statements are those untruths which harm your reputation. While defaming another person is not a crime, it is a civil tort and the victim can seek redress in the courts for damages incurred.

Defamatory statements can be spoken, gestured, written or pictured. Written defamation is referred to as “libel” and spoken defamation is known as “slander.” Oral defamatory statements generally have a shorter lifespan than those fixed in a written form; therefore most courts deem libel to be more injurious than slander. In order to prevail in a civil lawsuit for defamation, you must prove to the court that the defamatory statement made against you was:

  • False; and
  • Published; and
  • Caused injury; and
  • Was not privileged

First and foremost, the statement must be false. If you happen to occasionally dabble in the drug trade, such an accusation against you would be true and, therefore, would defeat your claim for damages. A truthful statement, no matter how harmful to your reputation, is not considered damaging in the civil liability sense. Similarly, opinions are not considered defamatory because it is impossible to present evidence that objectively proves that the statement is false.

You must also prove to the court that the statement was published, or somehow communicated to a third party. Publication does not mean it must be published in print or on the internet; this requirement is met whether the statement was communicated over the media, through gossip, overheard in conversation, or via flyers and signs. The only requirement is that the statement is communicated to a party other than yourself or the person making the statement.

Because the primary purpose behind defamation law is to compensate a victim for damage to his or her reputation, in order to prevail in a defamation lawsuit you must be able to prove that you were injured by the defamatory statement. Damages may include being shunned by business associates or neighbors, lost income opportunities, or even being hounded by the media. Some types of false statements are considered defamation “per se” and do not require the victim to prove injury, including allegations that you have committed a crime, have a sexually transmitted disease, are guilty of sexual misconduct, or are professionally incompetent. Accordingly, an untrue statement that you are dealing drugs – an allegation that you are engaged in criminal activity – would fall under defamation “per se,” easing your burden of proof.

Finally, the statement must not be privileged. In certain instances, statements made are privileged and the person who made the statement cannot be sued for defamation if the statement turns out to be false. For example, those testifying in court or at a deposition cannot be sued if their testimony turns out to be untrue.

There’s an added wrinkle for public figures who face a higher burden of proof. Elected officials, celebrities and other public figures must also show that the false statement was made with “actual malice”, meaning the person who made the statement either knew it was false or acted with reckless disregard for whether the statement was false.

Friday, May 15, 2015

Common Claims in Personal Injury Cases

There are a number of issues that can come up in a personal injury case.  Every personal injury case will include a claim for compensatory damages, meant to compensate the plaintiff for any loss.  It is important to include all claims that apply in a lawsuit because, if one is omitted, there is no second chance to reopen the case.  Some of the most common types of compensatory damages include:

Property damage:  If personal or real property is damaged as a result of an action of the defendant, the plaintiff can include a claim for property damage.

Medical costs:  Any out of pocket medical bills should be reimbursed as part of a lawsuit.  If an insurance company paid medical bills, they may assert a right to be reimbursed out of the proceeds of any personal injury settlement.

Pain and suffering:  This is meant to address the physical, mental, and emotional anguish that comes with being the victim of an accident.  In many cases, the path to rehabilitation and recovery is difficult, painful, and frustrating.  A victim should be compensated, at least in part, for the interruption of their lives.

Permanent injury:  Often, despite the doctors’ best efforts, a patient is left with permanent pain or the loss of function of a body part after treatment is complete.  Even though it is impossible to assess the value of this monetarily, the courts will try their best to put a number on it and compensate plaintiffs accordingly.

Lost wages:  A claim for lost wages seeks to recover money for any work that was missed as a result of an injury.  The lost work may have occurred immediately after the accident, or may have accrued over a period of time, including any days missed to receive treatment.

Loss of consortium:  After a serious injury, many aspects of a victim’s life change.  If his or her ability to be intimate with a spouse is affected, a claim of loss of consortium may be included in the complaint.  It does not matter if the problem is a physical one or a psychological one.

Wednesday, May 6, 2015

What are punitive damages?

Punitive damages are a special class of damages paid by a defendant in a lawsuit.  They are not designed to compensate the injured party for any damages suffered, but instead to punish the defendant for some egregious action and to discourage others from enaging in that specific behavior.  Punitive damages are reserved for special cases where a defendant’s behavior is extraordinarily bad. 

In order for a case to be considered for punitive damages, the defendant had to have acted willfully. For example, if a company decided to take a product to market, knowing that it had a dangerous defect, it could be held accountable for punitive damages.. It does not make sense to allow punitive damages in a case where only negligent behavior is alleged because, presumably, a negligent action was an accident and there is little need for deterrence.

When a court decides on a punitive damage award, it will consider how bad the conduct in question really was, as well as the wealth of the defendant.  After all, being forced to pay $10,000.00 is a much greater punishment for a person earning $50,000 a year than someone earning $50,000,000 a year.  Even though their purpose is not to compensate a plaintiff for injuries, usually punitive damages are paid to the plaintiff, leaving him or her in a much better position than he or she was in before a lawsuit was filed. 

The United States is one of the few countries in the world that permits punitive damages.  They are also common in China, Australia, and New Zealand.  In parts of the United Kingdom, they are available in very limited circumstances.  In Japan and most of Europe, it is nearly impossible to get a punitive damage award.

Monday, April 27, 2015

NFL Concussion Suit Sheds New Light on the Inherent Risk of Workplace Injuries

If you’re like most individuals, you perform hundreds of activities each day at home and in the workplace. In some instances, these regular activities that you might have believed to be harmless end up hurting you many years down the road. When those activities were work-related, the fact that they were “just part of the job” doesn’t mean your employer is off the hook if you need medical attention.

A good example of this is the NFL concussion lawsuit. In the NFL, there is an inherent risk that a player will be injured when he steps on the field. This risk is obvious and by playing football, the players have assumed this inherent risk. The doctrine of assumption of risk, in addition to the the Collective Bargaining Agreement (CBA) the league enters into with the NFL Players Association, prevents players from filing suit when they suffer an on-the-field injury.

What the players (and the teams, owners, and league) claim not to have known, or perhaps knew but did not want to acknowledge, is that every-day injuries, particularly head injuries, can have serious long-term impacts on the players. The NFL is now being sued by past players who think that the league was negligent for not protecting them from long-term injuries or at least warning them about the risk of long-term injuries.

How this translates into the non-football world is still a bit unclear since the NFL suit is rather unique, but it is something employees who have assumed the risk of day-to-day injuries should keep in the back of their minds. If years down the road the cumulative impacts of those small, every-day injuries start to add up to something major, it may be time to investigate whether the employer failed to properly protect or adequately warn employees of the long-term dangers they faced.

Monday, April 20, 2015

Does Old Man Winter Shield Property Owners from Slip and Fall Liability?

Slipping and sliding around on the snow and ice is part of dealing with winter. If you were injured during a fall caused by poor weather conditions, however, there may be someone to blame other than Old Man Winter.

Property owners have a duty to exercise reasonable care when it comes to maintaining the areas of their property that are open to the public. That duty does not end when winter weather arrives. Property owners are required, often explicitly by local law, to promptly remove snow and ice from the public areas of their property in order to reduce the risk of falls and injuries.

Property owners can meet their duty by removing the snow and ice themselves or by hiring a contractor, such as a plow company, to do so for them. No matter who does the snow or ice removal, if you are injured because you slipped and fell on poorly maintained property, you may be able to seek compensation from the owner.

This does not mean that you are exempt from exercising caution when getting around in bad weather. Members of the public also have a duty to use reasonable care when walking in an area known or reasonably expected to be snowy or icy. Failing to do so may reduce your recovery in any potential lawsuit.

Slipping and falling is so common, particularly in winter, that some people are embarrassed by their injury or think asking someone else to pay for it would be wrong. However, injuries caused by slipping and falling due to snowy or icy conditions can be quite serious, and the party responsible for your injury should be held accountable.

If you have been injured after slipping and falling on snow or ice, an experienced personal injury attorney can help you seek compensation.

Tuesday, April 14, 2015

Dangerous Medications & Class Action Suits

The Food and Drug Administration (FDA) reviews, and approves, many drugs and medical devices to ensure that they are safe for consumers before they can be sold. Still, a lot remains unknown when a drug or device first enters the market. Unfortunately, some drugs and devices end up causing injury to the people that they are prescribed to treat. When many people are harmed by the same prescription drug or medical device, a class action lawsuit is typically filed in order to efficiently compensate all of the injured plaintiffs.

If you saw a television advertisement alerting you to a lawsuit over a drug or device you or a loved one used, you have good reason to be concerned, but you should not panic. An experienced attorney can guide you in determining whether you qualify for compensation and what steps to take next. There is often no cost to you because the drug or device company at fault typically has to pay all the costs associated with the injuries it caused.

The longer a drug or device is on the market, the more we learn about its side effects, so it is important to keep records about the medications and medical devices you and your loved ones have used. You never know when additional information will uncover previously unknown dangers, so paying attention to warnings about drug and medical device class actions is important. If you can recognize early on that you or a relative may be at risk, you could potentially save your life or that of a loved one, and ensure that you receive the compensation you are due for the risk you have been subjected to.

If you think you have been harmed by a dangerous medication or device, contact an experienced personal injury attorney who can advise you about participation in class actions related to drugs and medical devices.

Tuesday, March 31, 2015

10 Things to Bring to Your First Meeting With Your Attorney

Hiring an attorney is not something most people do every day, so being a little bit unsure of how things are going to go is perfectly normal. To help ease some of the stress and make the process go more smoothly, take time to compile and bring the following list of items with you to your first meeting.

  1. A list of all your contact information. Your lawyer is going to need to know your full legal name and any other names you go by, your address, phone number(s), and email address.

  2. The names and contact information of other people that might get involved with the case - people on the other side, people on your side, witnesses, doctors, police, insurance agents, etc.  If a case has already been filed against you, the name(s) and contact information of the lawyer(s) representing the other side will also be needed.

  3. A typed up or written down account of the circumstances surrounding the situation that is causing you to seek legal help. Try to make your summary of events as detailed as possible. If writing or typing isn’t one of your strengths, try creating an audio recording.

  4. A timeline of events. The best way to do this is to buy a calendar, write all the important events on it, and bring it to the meeting with you.

  5. Any materials (including documents, digital files and photos) you have that relate to your legal matter. If possible, put the documents in an order that makes sense when paired with the summary of events and timeline you put together above.

  6. A list of information (particularly documents) you wish you had or thought you had but can’t seem to find now.

  7. The truth. You don’t have to swear to tell the truth, the whole truth, and nothing but the truth unless you are taking the witness stand in the courtroom, but lying to your attorney will not help your case. 

  8. Bring a good idea of what you hope to get out of the case. Think about what winning looks like to you. It is difficult for your attorney to figure out how best to help you if they don’t know what you want. 

  9. An open mind paired with a good sense of what your gut is telling you. Your lawyer may suggest a solution that you would never have imagined, or let you know that you don’t have a case. Listen to what they tell you, but don’t be afraid to share your thoughts on their suggestions.

  10. A list of any questions you have. The meeting will be far more productive if you leave without nagging questions or lingering doubts.

Thursday, March 26, 2015

What Happens if I Lie about Being Injured?

Most of us have told a little white lie; even if we are caught, there are usually no consequences. That is not the case if you are involved in a lawsuit. Lying under oath is a crime called perjury, and it can result in jail time.

Lying or providing knowingly false or misleading information can lead to other consequences as well. You might be subject to monetary fines or lose your professional license. It could also result in your lawsuit being dismissed.

When a lie has been told, the key piece of information the court is going to be interested in is the state of mind behind the lie or misrepresentation. In order to be guilty of perjury, you must have intentionally lied. Having an honest lapse of memory, or only remembering a specific detail after something jogs your memory is not likely to get you into trouble. Telling a lie or purposely leaving out key information in order to mislead is more serious, but even that does not guarantee you are going to end up in jail.

Even if your case has not proceeded to trial, lying about your injury (or leaving out information you should have disclosed) can constitute insurance fraud. This can also lead to criminal charges. Fraudulent claims can result in loss of insurance coverage and being liable to the insurance company for any monetary awards or costs of investigation.

If you realize that you lied, or didn’t tell the whole truth, in a current or past legal action the best thing to do is to contact your lawyer. They can help you figure out what, if any, corrective action needs to be taken.

Although lying is a part of life for most people, the truth, the whole truth, and nothing but the truth is the only thing you should be telling any time you are under oath or talking with your own lawyer in private.

Monday, March 9, 2015

When Is My Hot Beverage Too Hot?

A lawsuit over an excessively hot beverage made headlines two decades ago. A 79-year-old woman spilled a cup of McDonald's coffee in her lap and suffered third degree burns. A jury awarded her millions in damages; since then, almost every major chain that serves coffee has been a defendant in a similar suit.

In the McDonald's case, the coffee was brewed at 195 to 200 degrees Fahrenheit and then maintained at 180 to 190 degrees. This was consistent with the range recommended by the National Council of Chain Restaurants, but hotter than the temperatures some burn experts considered safe. The plaintiffs' attorneys argued that the high temperature was "unreasonably dangerous" and "inherently defective."

McDonald's currently serves coffee at 176 to 194 degrees. For approximately a decade, Starbucks has been selling coffee at 175 to 185 degrees. According to the Specialty Coffee Association of America, the standard serving temperature is 160 to 185 degrees. For a number of practical reasons, companies brew coffee and tea at temperatures that exceed the burn thresholds of skin, and beverage spills continue to send people to the hospital with scalding injuries.

Much of the coffee served today is as hot or hotter than the coffee that led to the 1994 McDonald's lawsuit. Instead of lowering temperatures, companies place strongly worded warnings on their coffee cups. They also have worked harder to present expert witness testimony regarding their reasons for serving the coffee at high temperatures.

In a 1998 case, Bunn-O-Matic, a manufacturer of coffeemakers, won a suit against it when the Seventh Circuit Court of Appeals unanimously held that 179 degrees was not "unreasonably dangerous.” New cases are continually filed, some involving hot chocolate and hot cider, with both the reasonableness of temperatures and the adequacy of warnings still points of contention.

If you have been burned by a hot beverage, contact an experienced personal injury attorney to advise you about whether you have a viable case.

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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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