Friday, June 9, 2017

Florida Supreme Court Strikes Down Medical Malpractice Award Limits

The Florida Supreme Court reached a decision this week that is sure to please medical malpractice lawyers and victims currently pursuing their cases in the state. The state law limiting pain and suffering, and other non-economic, monetary awards in medical malpractice cases has been ruled unconstitutional, render the cap null and void.

Under the old law, a person that suffered an injury due to medical malpractice could only be awarded $500,000 for pain and suffering by the court regardless of what a jury decided. If a person was catastrophically injured, the limit jumped up to an even million. However, these limits do not include monetary damages for lost wages, medical care, or other directly attributable losses, only the esoteric pain and suffering, and other categories of non-economic damages, like loss of enjoyment of life, loss of companionship, and emotional distress. Caps, or limits, on damages vary from state to state, but usually only apply to medical malpractice matters.

How'd This Happen?

In 2007, plaintiff Susan Kalitan was undergoing surgery for her carpal tunnel syndrome. After the surgery, her throat was injured when removing a breathing tube, and this injury led to a six week coma and other serious injuries. When her case finally came to trial, a jury awarded her $4 million, however, the court reduced the award by half due to the state law limiting medical malpractice damages.

In 2014, the appeal Katilan filed was finally decided in her favor, striking down the cap. That court ruled that the limit violated the equal protection clause due to the arbitrary basis for reducing damages in the law. It found that the law did not logically make sense based upon the stated purpose of addressing the medical malpractice insurance premium cost crisis. This week, the state's Supreme Court agreed with the appellate court and upheld the decision.

What Does This Mean for Other States?

Unfortunately, the damages caps on medical malpractice claims in other states are still in effect. The Florida Supreme Court can only impact Florida law. Additionally, the Florida legislature can go back to the drawing board to try to pass a new law that the court won't be able to strike down.

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from Injured http://blogs.findlaw.com/injured/2017/06/florida-supreme-court-strikes-down-medical-malpractice-award-limits.html
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Thursday, June 8, 2017

Can I Settle a Medical Malpractice Claim Without a Lawsuit?

Just about every single type of legal matter can be resolved without getting the courts involved. This means that a medical malpractice claim can be settled without filing a lawsuit.

However, before attempting to negotiate a settlement on a medical malpractice claim, seeking the advice of an experienced attorney in your area is a good idea. Below, you'll find the top three reasons why you should talk to a medical malpractice lawyer before taking any actions on your claim.

1. Notice and Other Legal Requirements

Many states' laws require that malpractice claimants provide specific types of notices within specific time periods. Sometimes medical expert declarations are needed at an early stage. Failing to provide notice, or meeting filing requirements, can mean that a person will not be able to sue.

To be certain that state specific deadlines and requirements are met, if a person believes they have a medical malpractice claim, even if they don't want to file a lawsuit, contacting an attorney is a good first step. If you wait too long to start your claim, you may not have enough time to negotiate a settlement before your statute of limitations runs up.

2. Insurance Negotiations

Mostly all doctors have malpractice insurance that will be willing and able to negotiate settlements for strong claims, even before filing a lawsuit. While it may be tempting to attempt these negotiations yourself, using an attorney provides you a layer of protection from insurance reps or adjusters that are trained to obtain statements from you that will reduce the value of your case. An experienced attorney will know what information to stress and rely upon during negotiations. Also, an experienced attorney will have a better idea of what amounts to a fair settlement value.

3. Threatening to Sue During Settlement Negotiations

Oftentimes, individuals will issue an empty threat, while they are negotiating, that they will file a lawsuit if the other side doesn't agree to settle. Attorneys will do this as well. However, when attorneys do so, it is much more believable and likely to achieve results.

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from Injured http://blogs.findlaw.com/injured/2017/06/can-i-settle-a-medical-malpractice-claim-without-a-lawsuit.html
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Sun's Out, Fun's Out: Top 7 Summer Injury Tips

As the old saying goes, "It's all fun and games until someone gets hurt." And with more fun and games over the summer months comes more opportunity for injury. While we hope everyone stays safe this summer, some injuries are inevitable.

So here is some of our best advice for avoiding and dealing with summertime injuries, from our archives:

1. Top 5 Summer Camp Injury Questions

Kids off to camp? Make sure you know the ins and outs of injury liability for summer camps before your kids hit the bunkhouse.

2. 3 Things to Know About Camp or Recreational Liability Waivers

Whether it's a summer program at the community center, sports-centered training sessions, or Camp Firewood up in Waterville, Maine, most camp organizers will have participants or their parents sign liability waivers. Are they enforceable? Should you sign one?

3. What If I'm Injured Hiking or Camping?

For many of us, summer is the opportunity to explore the natural wonders of the world. Thing is, those natural wonders aren't always the most welcoming. Here's what you need to know if you're injured out in nature.

4. Road Trip Safety Tips: How Not to Get Injured

If you're more interested in seeing the nation's highway system rather than its national parks, you're not alone. America's highways and byways will be packed the summer, so stay safe out there.

5. 6 Tips to Lawsuit-Proof Your Pool Party

A pool can be the perfect spot to hang out this summer. It can also be an attractive nuisance. And if you don't know what that means, legally, you may want to find out before inviting friends neighbors over.

6. Grilling Out Can Lead to Burns, Lawsuits

Ah, cooking outside over an open flame while enjoying a few cold adult beverages. What could possibly go wrong?

7. Employee Safety Tips: Working Outdoors in Summer Heat

Most of us are not on summer vacation from June to August, and not all of us who are working are doing it from climate-controlled office environments. So if you're working outside in the elements this summer, do it safely.

We wish everyone a safe and fun summer. And if it wasn't so safe, you may want to talk to an experienced injury attorney in your area.

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from Injured http://blogs.findlaw.com/injured/2017/06/suns-out-funs-out-top-7-summer-injury-tips.html
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Wednesday, June 7, 2017

UNR's Sigma Nu Fraternity Sued for Wrongful Death of Freshman Pledge

The Sigma Nu fraternity on University of Nevada Reno's campus has been sued due to an alleged hazing death that occurred last year. Along with the fraternity organization itself, the housing organizer and several fraternity members have been named in the lawsuit filed by the deceased's parents.

The parents of Ryan Abele filed the wrongful death suit alleging their son was forced to drink excessively, then suffered a life-ending fall down a flight of stairs at the fraternity house the following morning. His death allegedly occurred as a result of hazing incidents that required him to drink excessively and clean the fraternity house after a party.

Fraternal Hazing

Ryan Abele was attempting to join the Sigma Nu fraternity. As part of the process, he was required to "pledge" the fraternity. This generally involves learning about the organizations history, principles, and members, then agreeing to uphold the same principles. Not surprisingly, Ryan was presented with paperwork that specifically stated the fraternity did not haze members, nor requires or encourages the use or misuse of alcohol.

However, it is no secret that fraternities and sororities routinely require their pledges to do more than just learn and commit, regardless of university or Greek-life rules against hazing. Frequently, pledges are required to do menial tasks or manual labor, suffer embarrassment, humiliation, and injury, and are frequently required to drink excessive amounts of alcohol. All of these sorts of activities are usually considered hazing. Occasionally, pledge activities will be considered legitimate team building, but if there is any question, it likely will qualify as hazing.

Facts of the Case

In Ryan's case, he did not suffer his fatal injury until the morning after he was instructed to drink excessively. However, after falling down the flight of stairs the morning after being forced to drink, when he arrived at the hospital, he had a BAC of 0.3%. At 0.08% BAC a person is considered legally drunk in most states.

It is alleged that Ryan was instructed to drink a full third of a 750ml bottle of 100 proof Captain Morgan rum the night before he died. When he was awoken early in the morning to clean the basement, it is alleged that he was still intoxicated. When another member of the fraternity yelled at him to get started while he was standing at the top of the stairs, he fell down the stairs and hit his head against a concrete wall at the bottom.

As a result of the incident, the fraternity was suspended from UNR for 15 years (just the organization, not the students), and the national Sigma Nu organization closed down the university's chapter. There has been no news as to whether criminal charges will be filed against those involved.

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from Injured http://blogs.findlaw.com/injured/2017/06/unrs-sigma-nu-fraternity-sued-for-wrongful-death-of-freshman-pledge.html
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Tuesday, June 6, 2017

Ohio Is the Latest State to Sue Over Opioid Crisis

According to the Centers for Disease Control, opioid overdoses claim 91 lives per day in America, and the number of overdose deaths associates with opioids has quadrupled since 1999. Ohio has been hit especially hard. According to a new lawsuit filed by the state's attorney general against five drug manufacturers, opioid-related drug overdoses in Ohio have skyrocketed 642 percent in the last 15 years.

Ohio's is the latest in a long line of local litigation seeking to hold opioid manufacturers responsible for a nationwide crisis.

Buckeye State Battle

The Ohio lawsuit targets Allergan, Endo Health Solutions, Johnson & Johnson, Purdue Pharma, and Israel-based Teva Pharmaceutical Industries, claiming the drug manufacturers and distributors disseminated false and deceptive statements about opioids, misrepresented the benefits and risks of opioid use, and peddled drugs to susceptible prescribers and vulnerable patients. The suit even alleges the defendants "formed an opioid marketing enterprise in violation of the Ohio Corrupt Practices Act for the purpose of illegally promoting the widespread use of opioids for chronic pain."

Those efforts paid off for the drug companies, but not so much for patients or the state agencies that were forced to deal with the fallout of opioid addiction:

Defendants' efforts were wildly successful. Opioids are now the most prescribed class of drugs; they generated $11 billion in revenue for drug companies in 2014 alone. In an open letter to the nation's physicians in August 2016, the then-U.S. Surgeon General expressly connected this "urgent health crisis "to "heavy marketing of opioids to doctors ... [m]any of [whom] were even taught -- incorrectly -- that opioids are not addictive when prescribed for legitimate pain." This epidemic, fueled by opioids lawfully prescribed by doctors, has resulted in a flood of prescription opioids available for illicit use or sale (the supply), and a population of patients physically and psychologically dependent on them (the demand). And when those patients can no longer afford or legitimately obtain opioids, they often turn to the street to buy prescription opioids or even heroin.

Just and Right

"It is just and it is right that the people who played a significant role in creating this mess should now pay to clean it up," Attorney General Mike DeWine told the Columbus Dispatch. DeWine's suit seeks unspecified damages for consumers misled by the drug companies' deceptive marketing. Ohio is also alleging that the companies violated state product liability laws, public nuisance laws, and even committed Medicaid fraud.

Along with facing lawsuits filed by other states, cities, and even Native American nations, some drug companies have already paid civil fines to settle civil lawsuits filed by the federal government. As the opioid crisis isn't going anywhere soon, neither is opioid-related litigation.

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from Injured http://blogs.findlaw.com/injured/2017/06/ohio-is-the-latest-state-to-sue-over-opioid-crisis.html
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Monday, June 5, 2017

American Airlines Sued by Double Amputee for Mistreatment

American Airlines is facing a lawsuit over its allegedly deplorable treatment of a man with no feet. Michael Mennella, who lost both feet due to an auto accident over five years ago, was removed from an American Airlines flight, for allegedly being intoxicated. Mennella alleges he was removed as a result of discrimination and negligence.

The flight was diverted, and made an emergency landing in Texas, where Mennella was removed from the plane by officers. Although American Airlines claimed Mennella was intoxicated, law enforcement found no evidence of intoxication whatsoever. He was told that he would be arrested on felony charges, but was released once officers starting talking with him. He was not booked, nor charged. Fortunately, Mennella was able to catch a flight to his final destination on another airline. However, being removed from the flight was the final straw to an already aggravating experience.

More Deplorable Details

Mennella's flying experience was anything but pleasant. On August 28, 2016, when he arrived to check in for his flight, he discovered that his wheelchair reservation had been lost. For someone with no feet, that's a real problem. What's worse is that the airline was unable to secure any other wheelchair for Mennella. This meant that he would be forced to hobble on the ends of his amputated legs to board the plane, which he described as a painful experience.

Under the Air Carrier Access Act, which is almost like the Americans with Disabilities Act (but much much weaker), airlines are required to provide boarding assistance to individuals with disabilities. Unfortunately, unlike other public accommodations and businesses, airlines are not required to comply with the ADA, but rather the ACAA (which does not allow aggrieved individuals to file lawsuits).

Mennella was denied that assistance. To make matters worse, once boarded, Mannella requested water so that he could take medication. After his requests were ignored by a nearby flight attendant, he walked to the back of the plane to request water from another flight attendant. Unfortunately, he was again ignored.

How to Sue an Airline?

Suing an airline after an injury can be rather complicated due to the fact that the entire industry is so highly regulated. Frequently, the federal regulations will make even simple negligence claims into needlessly complex cases. If you believe you have a case or claim against an airline, airport, or an employee of either, contact an experience aviation attorney as even small injuries can sometimes result in large awards when airlines violate consumers' rights.

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from Injured http://blogs.findlaw.com/injured/2017/06/american-airlines-sued-by-double-amputee-for-mistreatment.html
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Friday, June 2, 2017

When to Sue for Asthma Injuries?

Asthma is a rather common form of lung disease that results in difficulty breathing, pain, and other symptoms. Left untreated, it can result in death. Asthma attacks kill thousands every year. Fortunately, asthma sufferers are often able to alleviate symptoms by using inhalers and other medications.

In limited circumstances, an asthma misdiagnosis, or failing to provide asthma medication, can lead to legal liability. Some examples of when a person may be able to sue for an asthma-related injury are listed here:

Asthma Misdiagnosis

Asthma is generally attributed to a combination of genetics and environmental factors, and the symptoms often overlap with chronic bronchitis. As such, asthma is commonly misdiagnosed. Whether this misdiagnosis would rise to the level of legal liability for malpractice will depend entirely on the facts of the particular misdiagnosis.

Product Defect

If an asthma inhaler, or the medication, is defective, a person who suffers an injury as a result will likely have a product liability, defective device, claim.

Environmental Cause of Asthma

Since it is generally accepted that environmental factors can cause asthma, particularly in children, gross polluters and others that cause those environmental factors, can be held liable for causing asthma and other respiratory injuries. These types of cases, often referred to as toxic torts, can be rather challenging and often involve multiple claims linking the environmental factor to the injuries or diagnoses. Famously, the movie Erin Brockovich showed the world how difficult a mass toxic tort case can be.

Institutional Negligence and Inmate Mistreatment

When a person is in an institution such as a prison, school, or hospital, where their access to medication is restricted, the institution can be held liable for failing to provide their medicine in a timely fashion. However, while a school or hospital will be held to a lower negligence standard in these types of cases, prison inmates will generally need to file civil rights claims for the denial of in-custody medical treatment.

Recently, there have been media reports out of Arkansas and California of prison inmates that died because they were denied their asthma medications. These tragic, and easily preventable, deaths are clear violations of an inmate's right to receive necessary medical care.

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from Injured http://blogs.findlaw.com/injured/2017/06/when-to-sue-for-asthma-injuries.html
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