Gym-aholics Be Warned: LA Fitness Wins Injury Lawsuit With Liability Waiver

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

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

Releases and Waivers Can End Your Case

Most gyms or facilities that permit the public to come in and partake in physical activity will ask all participants to sign a release or waiver of liability before starting any activity. Because people are faced with only two options, sign and participate, or don’t sign and don’t participate, these waivers and releases get signed without even being read. Even if the waiver is read, there is no negotiation available. These waivers are routinely upheld by courts.

Ms. Evans was faced with this exact situation: either sign the waiver or don’t use the facility. When she was injured, her attorney filed suit and attempted to challenge the waiver on the grounds that it is a contract of adhesion and thus void as per public policy. Unfortunately for Ms. Evans, the court did not believe that she had no option but to sign the agreement. The Court found that she could have not signed, and not used the services or facility; that by signing the release, she was assuming the risk that she could be injured while exercising.

Common Sense Does Not Always Control

Some might consider it fair that Ms. Evans did not win her case, and that she was prevented from even trying her case to a jury, because she fell. Many take the opinion that suing a gym when you caused your own injury is not right. However, consider the recent case of Jonas Barrish against CrossFit Inc.. In that case, a release was not signed and the gym was held liable for the independent action of Mr. Barrish that caused his injury. His instructor even told him not to do what he did, yet he was still successful in winning a verdict because gym instructors have a duty to keep their participants safe.

Releases and waivers will not always be upheld, however courts tend to enforce the releases in the absence of gross misconduct, especially if the releases or waivers are narrowly tailored.

Related Resources:

• Injured in an accident? Get matched with a local attorney. (Consumer Injury)
• Drone Injury Lawsuit: USC Fraternity Sued for Falling Drone Injury (FindLaw’s Injured)
• Can Hospitals Be Sued for Insensitivity to Transgender Patients? (FindLaw’s Injured)
• Who is Liable? (FindLaw’s Learn About the Law)

from Injured http://blogs.findlaw.com/injured/2016/10/gym-aholics-be-warned-la-fitness-wins-injury-lawsuit-with-liability-waiver.html

Medical Malpractice: Suing for Pulmonary Embolism Misdiagnosis

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

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

Pulmonary Embolism Dangers

There are around 300,000 to 600,000 cases of PE every year in the United States, and result in an estimated 200,000 deaths. Not all embolisms are the same: some are blood clots in the legs that break off and travel to the heart; others may be an embolization of air, fat, or amniotic fluid; and in some cases a blood clot could occur in the pulmonary artery itself, not originating from the leg. Blocking blood flow to the lungs can results in a variety of injuries included passing out, dangerously low blood pressure, and even sudden death in about 15 percent of cases.

If diagnosed early, a pulmonary embolism can be treated with anticoagulant or blood thinners. Sometimes, patients may need to receive oxygen or analgesic treatments as well.

PE Liability

As with any other ailment, you can sue a doctor for misdiagnosis of a pulmonary embolism. And, like other medical malpractice claims, you would need to prove that your doctor failed to meet her duty to act as a reasonably competent medical professional and this failure led to your injuries. Proving doctor negligence can be complicated and require extensive expert testimony.

If the misdiagnosis results in death, you may also have a wrongful death claim against the doctor. Wrongful death claims are similar to negligence claims, but require you to prove that the death was caused by the doctor's negligence and that you, as a surviving spouse or family member, have suffered harm as the result of the death.

Medical malpractice cases are best left to the experts -- an experienced personal injury attorney will be able to assess your medical malpractice claim.

Related Resources:

• Have an injury claim? Get your claim reviewed for free. (Consumer Injury)
• Top 5 Medical Malpractice Questions (FindLaw's Injured)
• Can I Sue for Blood Clot Filter Injuries? (FindLaw's Injured)
• 5 Common Health Risks From Plastic Surgery (FindLaw's Injured)

from Injured http://blogs.findlaw.com/injured/2016/10/medical-malpractice-suing-for-pulmonary-embolism-misdiagnosis.html

Ga. Hospital Settles Rape Lawsuit Involving Nurse's Aide

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

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

Hospitals and Vicarious Liability

Butler pleaded guilty to rape in March 2010, so there was no question whether the assault occurred. The question would be whether Select Specialty was liable as his employer. The doctrine of vicarious liability holds that employers in certain circumstances can be liable for the negligent or purposeful acts of their employees. And hospitals, which are responsible for hiring and supervising their medical staff, even nurse's aides, could be held liable for negligent supervision or retention if their staff injures a patient.

The crux of the lawsuit claimed Select Specialty was on notice regarding Butler's inappropriate conduct towards patients, citing several past examples:

• 2009: a patient's father called the sheriff, claiming Butler banged his son's head against the bed rails and yelled at him;
• 2008: A patient's daughter called the sheriff, claiming she saw a male employee masturbating in her mother's room;
• 2007: Two reports were filed with the hospital claiming assaults by unidentified male employees;
• 2004: A patient's family claimed she told them Butler had inappropriately touched her.

Litigation Procedure

Little-Thomas's lawsuit was initially dismissed for lack of evidence, but reinstated last year with a judge determining that the jury should decide whether prior reports of Butler's behavior and conditions at Select Specialty were credible. But Select Specialty settled with Little-Thomas right before trial, perhaps in an effort to avoid bad publicity.

The judge in the case was also considering sanctions against Select and its legal team for falsely claiming that there was no evidence of any prior rape or sexual assault claims, other than Little-Thomas's. The amount of the settlement remains undisclosed.

Related Resources:

• Can I Sue for Hospital Negligence? (FindLaw's Injured)
• Nurses Caught Abusing Stroke Victim, 98 (FindLaw's Injured)
• Can a Victim of Rape Sue for Money Damages? (FindLaw's Injured)
• Calif. Clinic Sued Over Alleged Sexual Assaults by Nurse (FindLaw's Injured)

from Injured http://blogs.findlaw.com/injured/2016/10/ga-hospital-settles-rape-lawsuit-involving-nurses-aide.html

Man Convicted of Sexual Assault Sued Victim for Calling Him a Rapist on Facebook

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

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

How Is This Even Possible?

Under the law a cause of action for defamation of character generally requires a plaintiff show that a defendant made untrue statements about them to others, and that as a result of those statements, they suffered damages. In this case, the assailant was never found guilty of rape, and premised his defamation case on the fact that he plead no contest to felony assault, so that rape was never actually proven, nor admitted. As such, the statements made by Ms. Xiong on Facebook about her assailant being a rapist could be construed as untrue.

Despite the technicality that the assailant was not convicted of sexual assault, nor rape, it stands to reason that Ms. Xiong could prove that her statements were true in defense of the claim. Truth is a defense to defamation. While the assailant was never found guilty by a jury in criminal court, the standard of persuasion is much lower in a civil court. In California civil courts, the standard for proving liability is only mere preponderance, meaning that Ms. Xiong's own testimony would likely have defeated her assailant's claims. One need only to remember the OJ Simpson civil trial, where he was found liable for murder, despite having been found not guilty in the criminal court trial.

Courts Really Allow This?

Yes, however, while courts will allow almost any lawsuit to be filed, each state has procedures by which cases that clearly lack merit can be summarily dismissed. In the case of Ms. Xiong, that is exactly what happened. Upon motion by her attorney, the case against her was summarily dismissed.

Additionally, in cases that involve a lot of publicity, First Amendment protections will attach to the statements of the parties made in public about the case.

Related Resources:

• Pa. Man Falsely Accused as Rapist Gets $85K (FindLaw's Injured)
• Drone Injury Lawsuit: USC Fraternity Sued for Falling Drone Injury (FindLaw's Injured)
• How Reliable Is Doctor Testimony in Medical Malpractice Cases? (FindLaw's Injured)
• Xarelto Antidote Delayed by FDA (FindLaw's Injured)
  

from Injured http://blogs.findlaw.com/injured/2016/10/man-convicted-of-sexual-assault-sued-victim-for-calling-him-a-rapist-on-facebook.html

Drone Injury Lawsuit: USC Fraternity Sued for Falling Drone Injury

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

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

Drones Can Be Deadly

The injury sustained by the victim in this case required immediate medical attention. After being struck in the head, she fortunately fell onto a friend who prevented her from falling to the ground (which likely prevented a second blow to the head against the ground). From that point, an ambulance was called and friends helped the victim to the front curb of the house where an ambulance was able to take her to a nearby hospital.

Drone accidents can have fatal consequences. While it is unclear exactly how this accident happened, if a drone loses power while it is a hundred feet in the air and freefalls to the ground, the impact could be deadly. The newly passed drone laws took these sorts of accidents into account, and now require drone operators to maintain liability insurance. Additionally, the new drone laws prevent drone operators from flying directly over people’s heads.

Head Injuries Are More Serious

The victim of the drone accident in this case is alleging more than just an injury to her head, she is also claiming that the injury to her head has caused her difficulty concentrating at school. While the public often views claims of emotional distress, or claims tangentially related to injuries, with skepticism, the drone operator, fraternity, and event production company, in this case, should be thankful that the victim didn’t die or suffer a permanently disabling blow.

Head injuries are among the most catastrophic, along with injuries to the spinal cord. Even though we have thick skulls, an injury to the head, if severe enough, can damage the brain, which can create permanent injuries or disabilities.

Related Resources:

• Injured in an accident? Get matched with a local attorney. (Consumer Injury)
• Drone Accidents: 5 Worst Case Scenarios (FindLaw’s Injured)
• 2 Drone Pilots Arrested for Allegedly ‘Endangering’ NYPD Helicopter (FindLaw’s Blotter)
• N.D. Farmer Convicted in 1st Domestic Drone Case (FindLaw’s Blotter)

from Injured http://blogs.findlaw.com/injured/2016/10/drone-injury-lawsuit-usc-fraternity-sued-for-falling-drone-injury.html

How Reliable Is Doctor Testimony in Medical Malpractice Cases?

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

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

Doctors Helping Doctors

Aanning was testifying in a lawsuit filed against a medical clinic colleague, who was being sued after a patient suffered a stroke while being operated on. When asked if he knew of any time his partner's work had been substandard, Aanning replied, "No, never." The former physician now admits he lied to protect his colleague.

"I did it as a matter of course," Aanning told Pro Publica. "And I did it because there was a cultural attitude I was immersed in: You viewed all attorneys as a threat and anything that you did was OK to thwart their efforts to sue your colleagues. I just accepted that as normal. It wasn't like, 'I'm going to lie.' It was, 'I'm going to support my colleague.'"

While it is possible Aanning's testimony swayed the jury in the case (the patient lost the malpractice suit), he says he can't bear that thought. "I haven't touched on that question," he said. "It would make it painful for me. I would be moved to tears if that whole case revolved around just my testimony."

Switching Sides

Aanning now helps plaintiffs and their attorneys in building medical malpractice cases, admitting "it was never a level playing field for the plaintiff. People don't recognize it. How the judges don't recognize it and the system doesn't recognize it is beyond me. It's something I'm coming to grips with."

Medical malpractice cases hinge on establishing a doctor's duty of care, and demonstrating whether or not she failed to meet that standard. If a doctor defendant calls his colleagues to the stand to testify on his behalf, plaintiffs and their attorneys should be ready to discredit that testimony or at least point out the conflict of interest involved.

Any lawsuit involving an injury can be complex, and medical malpractice cases are especially complicated. If you've been injured by a doctor or medical professional, talk to an experienced personal injury attorney today.

Related Resources:

• Have an injury claim? Get your claim reviewed for free. (Consumer Injury)
• Can Your Doctor Testify Against You at Trial? (FindLaw's Injured)
• Medical Malpractice (FindLaw's Injured)
• Dangerous Drugs (FindLaw's Learn About the Law)

from Injured http://blogs.findlaw.com/injured/2016/10/how-reliable-is-doctor-testimony-in-medical-malpractice-cases.html

Xarelto Antidote Delayed by FDA

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

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

Can a Pharmaceutical Company Be Sued Even After FDA Approval?

While one might think that the FDA’s approval is as good as gold, they would be right for likely the wrong reason. When the FDA approves a drug, it just means that the drug can now be sold as a drug and the company can start profiting. When the FDA approves a drug or product, all they are really saying is that the product’s benefits outweigh the risks.

While the FDA may have been aware of some of the risks when the drug was approved in 2011, a quick glance at their information page for the drug shows numerous updates since that time.

What’s the Xarelto Lawsuit Claiming?

Patients taking Xarelto have died or become seriously injured as a result of taking the drug. Studies have shown that those taking the drug are more than twice as likely to experience stomach bleeding, compared to patients prescribed to take another anti-clotting medication. The many lawsuits facing the manufacturer are based upon the assertion that the manufacturer knew certain side effects existed, but did not tell the public. An additional claim against the manufacturer is that they knew the drug was not safe, yet continued to offer it for sale on the market.

These claims suggest what many people already know: FDA approval of a drug does not necessarily mean that a drug is safe. If you’ve been injured by the drug, contact an attorney immediately as there are strict filing deadlines that could defeat your claim if missed. If you want to be part of the large Xarelto class action lawsuit, the deadlines are even stricter.

Related Resources:

• Injured by Xarelto? Get your claim reviewed by an attorney for free. (Consumer Injury)
• Xarelto Injuries or Fatalities: Can You Sue? (FindLaw’s Injured)
• Pharmaceutical Drug Liability (FindLaw’s Learn About the Law)
• Dangerous Drugs (FindLaw’s Learn About the Law)

from Injured http://blogs.findlaw.com/injured/2016/10/xarelto-antidote-delayed-by-fda.html