Columbus Personal Injury Lawyer - Medical Malpractice

Factors Affecting Damages Awards in Personal Injury, Medical Malpractice, Animal (Dog) and Premise (slip and fall) Cases

Scott Smith — Sat, 21 Apr 2007 08:56:39 GMT

Nature of Injury

It stands to reason that the most important fact which will affect the amount of damages that you can recover is the nature of the injury sustained. The more serious an injury is, the higher the value of the claim. If you are suffer from a soft tissue injury, such as with whiplash or neck strain, you will not recover ads much as someone who is injured more seriously, involving ligament tears, bone fractures and nerve damage. Injuries such as whiplash and back strains are known as soft tissue injuries because they involve muscle. Although the condition can be painful, it's usually because this condition through medical examination, whereas bone and ligament damage is easily seen on a standard x-ray, serious injuries that can be detected with a medical examination typically receive much higher damage awards. If you have medical documentation to prove your damages, you will usually receive more compensation for your injuries.

In addition, the amount of treatment required, as well as the degree of permanency of your injuries can significantly affect the amount you will recover. Conditions which require surgery and extensive rehabilitation will present more compelling evidence of damages than injuries which heal without the need for medical intervention.

Degree of defendant's liability

As noted in our articles on negligence, if the defendant is 100% at fault for causing the accident, the amount of the award will fully represent the value of the damages that are presented. The only issue at trial will normally be how much your damages are worth. However, if you in any way are accused of sharing responsibility for the accident with the defendant, the amount of your settlement or damage award may decrease.

Comparative negligence

If a plaintiff is found partially at fault for an accident, he or she has not lost his or case altogether. In Ohio, comparative negligence is used to calculate the degree of the plaintiff's negligence and reduce the plaintiff's claim reward according to Ohio Revised Code Â§2315.33. The plaintiff will be allowed to recover as long as the defendant or combined defendants fault is equal or greater to the plaintiff's apportioned fault. The plaintiff's negligence must be less than 51%. Ohio Revised Code Â§2315.33. The award for damages to the plaintiff will be reduced in direct proportion to the plaintiff's percentage of fault.

Example: Suppose a jury awards you $100,000 in damages after you fell down the stairs, however, it find you 30% at fault for your injuries because you did not hold the handrail. After applying comparative negligence, you would be entitled to $70,000 in damages - $100,000 minus 30%.

Joint Tortfeasors

The theory of joint and several liability is that when separate and independent acts of negligence of several persons combine to produce a single injury, the actors are considered joint tortfeasors. The plaintiff can sue these joint tortfeasors in the same action, and each individual defendant will be held responsible for the entire amount of damages. The purpose of this rule is to transfer the risk that one defendant will lack the resources to pay the damages from the plaintiff to the other defendant. If one defendant pays the entire judgment, the defendant can sue the other defendants to contribute the amount of the damage that the jury found then responsible for. Ohio Revised Code Â§2307.25. However, joint and several liability only apples to economic losses such as medical expenses and lost wages. It does not apply to pain and suffering damages. Each defendant is liable only for the amount of pain and suffering damages that are apportioned to them individually. Ohio Revised Code Â§2315.18.

Example: Suppose the jury awards you $100,000 in damages because you were injured in a car accident. If the jury finds the driver of the car 60% at fault and the municipality 40% at fault, you would be able to recover the full $100,000 from the other driver. However, you can only recover $40,000 from the municipality. If the other driver pays you $100,000 it can then sue the municipality for $40,000. This is called contribution.

Respondeat Superior

Generally, if an employee commits a negligent act during the "scope of his employment," that causes injury to a non-employed his employer will be liable (jointly with the employer). This is the rule of respondeat superior. Respondeat superior is applied to cases involving "employees," in which the employee is subject to the close control of the person who has hired him. This is distinguished from an independent contractor situation, where the hiring person does not control the "physical details" of the work but rather just the general manner that the work is carried in. Independent contractors generally do not fall under respondeat superior liability unless the employee retains the right to control the manner in which the contractor performs the work.

Plaintiff's and Defendant's credibility

Whether or not a jury or insurance company is likely to find you and your claim believable and of significant worth will strongly impact your claim. Can you accurately describe the events of the accident? Can you describe your injuries in detail, and in a convincing manner? Are you intelligent and well spoken? Would you make a good witness on your own behalf?

The term used to describe these intangible factors is "jury appeal." Remember that the jury members will judge both you and the defendant, and that their opinion of you will weigh into their decision on whether to award you damages, and if so, how much. It is important that all of the claims that you make are supported by the evidence, or you may quickly lose credibility with the jury.

The credibility and perception of the defendant will also affect the amount of money you receive. If the defendant in a car accident case is a 20-year-old driving a hot rod, jurors aren't likely to view the defendant favorably. This can also hope a plaintiff in cases where the defendant refuses to admit fault for the accident. Exposing the "holes" in defendant's version of the accident will damage the defendant's credibility, resulting in higher damage awards in most cases.

Plaintiff's age

Age plays a role in determining the value of a plaintiff's claim, particularly where permanency of injury is alleged. If you are a 20-year-old woman who lost her leg in an accident, the a jury will award a higher amount of damages than if you are a 80-year-old woman with the same injury. The basis for this is that the younger woman has more future pain and suffering, loss of enjoyment of life, loss of income, and mental anguish ahead of her than dos the older woman.

Witness testimony

The credibility of witnesses also plays a role in affecting the amount of any recovery. This relates not only to witnesses to the accident itself, where proof of fault can be affected by their testimony, but to witnesses who are called to testify as to your damages as well. It is helpful to have credible witnesses who can clearly describe your condition before the accident to the jury, so as to assist them in understanding the change in your condition post-accident. In addition, expert witnesses often play a critical role in the outcome of any personal injury trial. In cases where there are "dueling experts", the background and professional experience of your expert is critical to establishing his or her influence over the jury.

In all matters involving personal injury it is essential that measures be taken promptly to preserve evidence, investigate the accident in question, and to file a lawsuit prior to the deadline imposed by the statute of limitations. If you or a loved one is a victim of personal injury, call Smith Phillips - Trial Lawyers at 614-846-1700 or 1-888-311-5297.

The above is not legal advice. That can only come from a qualified attorney who is familiar with all the facts and circumstances of a particular, specific case and the relevant law.

Originally posted at InjuryBoard by Scott Smith

Frequently Asked Questions About Personal Injury, Medical Negligence, Slip and Fall, Animal (Dog) and Property (Premise Liability) Negligence

Scott Smith — Sat, 31 Mar 2007 16:17:56 GMT

What has to be shown in order to prove negligence?

In order for one to prove that a defendant (at fault party), was negligent (fault) and therefore responsible for damages to you, a plaintiff (person claiming injuries and damages) must show:

â€¢ the defendant had a duty to use reasonable;
â€¢ the defendant breached the duty by acting unreasonably;
â€¢ it was foreseeable that by acting unreasonably, defendant would cause injury to you; and
â€¢ the defendant's actions or inactions caused your injury

Once it is proven the defendant was negligent, a plaintiff has the right to be compensated for damages that were related to the negligent acts.

What is the duty to use care?

Generally, a person owes everyone else with whom he comes in contact a general "duty of care." Normally, you don't have to worry about this duty - it is the same in all instances, the duty to behave with the care that would be shown by a reasonable person. But there are several situations in which courts hold that people owe one another less than this regular duty. The most important of these situations are: 1) one generally has no duty to take affirmative action to help another; and 2) one generally has no duty to avoid causing unintended mental suffering to another.

A person generally cannot be liable in tort solely on the grounds that she has failed to act. This means that if you see that another person is in danger, and you fail to render assistance (even though you could do so easily and safely), you are not generally liable for refusing to assist.

Example: Sam, passing by, sees Mike drowning in a pond. Sam could easily pull Mike to safety without risk to Sam, but instead, Sam walks on by. Sam is not legally liable to Mike for any harm sustained by Mike.

There are a number of commonly-recognized exceptions to the "no duty to act" rule. In the above example, if the danger or injury to Mike is due to Sam's own conduct, or to an instrument under Sam's control, Sam has the duty of assistance. Similarly, in the event Sam started give Mike assistance, once Sam voluntarily begins to render assistance to Mike (even if he was under no legal obligation to do so), Sam must now proceed with reasonable care.

What is reasonable care?

The key to determining whether someone is negligent is to define what constitutes "reasonable" care in any given set of circumstances. Since there is no clear definition of what is reasonable in any given situation, what is reasonable to one person may not be reasonable to another.

Courts often decide whether someone has exercised reasonable care by asking what a person of average intelligence and judgment would have done under similar circumstances. For example, a "reasonable" driver preparing to make a left hand turn across oncoming traffic would not do so without first checking to make sure that there was ample time to safely make the turn. It would be negligence if a driver failed to check to make sure there was time to make the turn, made the turn anyway, and caused the accident.

Are different people held to different standards of care?

The level of reasonable care required varies, depending on whether you are an adult, child or professional.

Reasonable person standard - An adult is guilty of negligence if he or she fails to act the way a person of ordinary negligence and judgment would have acted in similar circumstances.

Reasonable child standard - Both a child and his or her parents can be held liable for a child's wrongful conduct. Children, however, are not held to the same level of care as adults. A child's conduct is measured against what would be expected from a similar child of like age, intelligence and experience under similar circumstances. Because a child does not have the same mental capacity or life experience as an adult, the courts recognize that in some instances a child should not be held responsible for otherwise "negligent" behavior. For this reason, children of very young ages generally cannot be held liable for negligence. The judge will decide a child's capacity for negligence. If the child is deemed capable of negligence, then the issue of whether or not the child actually was negligent will be decided by a jury.

One major exception to the rule is that a minor will generally be held to an adult standard of reasonableness if the child is engaging in "adult" activities. For the most part, a child will only be held to this standard in situations in which the child is operating a motorized vehicle.

Professional community standard - Professionals (lawyers, doctors, architects, engineers, psychiatrists, etc.) are held to a higher standard of care due to their specialized training and experience. Professionals and individuals who practice "skilled trades" (plumbers, carpenters, electricians, beauticians, etc.) may be found to be negligent if they do not exercise the same degree of skill and knowledge normally exercised by other qualified and competent members of their professional working in their communities.

What is causation?

In order for a person who is negligent to be liable to you for damages suffered from an accident, it must be proven that the negligence actually caused your injury. The negligent person's action or inaction can be the sole cause of your injury or one of a number of causes.

Example: Suppose a truck is speeding too fast along the road when it suddenly approaches a car left abandoned in the middle of the road. To avoid a collision, the driver of the truck attempts to apply the brakes. A local mechanic recently repaired the brakes, but forgot to change the old, worn out brake pads. As a result, the brakes fail and the truck barrels into the parked car, which in turn collides with you as you try to cross the street in an area that is not a designated crosswalk. The resulting injury you received had many causes, including the trucker's negligent driving, the negligent repair of the truck's brakes, the car negligently left in the middle of the road, and your own failure to cross the street in a safe manner.

What if I am partially at fault for my own injuries?

Comparative Negligence

In the above example, the judge or jury determines the degree of the each party's negligence and apportions to each party a portion of the total damages you suffered based on each party's percentage of fault for causing your injury. This process is called "comparative negligence", and is the method by which damages are awarded in Ohio.

Is it considered negligence if someone violates a law?

Violation of a Statute

In some circumstances, proof that an individual violated a statute or law is enough to prove that the individual is negligent. Under the doctrine of "negligence per se", an individual is negligent if he or she violates a legislative statute, regulation or ordinance and causes an injury or loss.

Example: Suppose an ordinance code prohibits people from making U-turns at a particular intersection. If an individual makes an illegal U-turn and injures someone while making the turn, the person who made the illegal turn can automatically be held responsible for the injuries, regardless of whether they used reasonable care when making the U-turn. The fact that they violated the ordinance makes them negligent per se.

The doctrine of negligence per se applies only if the accident is the type of accident the statute or ordinance was designed to prevent and the injured party is within the class of people that the statute or ordinance was meant to protect.

Example: A U-turn law is normally enacted to protect other drivers passing through the intersection. If a driver passing through the intersection is injured by someone making an illegal U-turn, the doctrine of negligence per se is applicable.

In certain situations an individuals violation of a statute or ordinance is excusable in certain circumstances. For the most part, these permissible excuses include physical circumstances beyond the individual's control, sudden emergency situations not created by the individual, and/or situations in which compliance with the law would create greater danger to those involved than would a violation of the law.

What are some common defenses to negligence?

Assumption of Risk

If you participate in activities that you know are risky or dangerous, and are injured as a result, it may be determine that you "assumed the risk" of injury associated with that activity. For example, a skier who knowingly skis down a steep mountain containing large moguls assumes the risk of harm inherent in such an activity. His claim for damages would most likely fail, unless his injury resulted from a condition unrelated to those for which he was fully able to appreciate and assess the risk. For example, the skier may have realized that skiing can be hazardous and have a full understanding of the dangers. However, he would not have anticipated that a ski-lift cable would break and fall in his path, causing him to fall and get injured. Assumption of risk does not protect the defendant in this type of situation.

Burden of Proof

The burden of proving a case in all negligence claims, including automobile accident claims, is on the plaintiff. This means that the person claiming injury (plaintiff) must go forward first with the evidence at the trial and must present evidence from which a fact finder (judge or jury) could reasonably conclude that the at fault person(s) (defendant) was negligent, that the defendant's negligence proximately caused the accident and that the plaintiff's injuries are causally related to the accident. The standard which plaintiff's are held to in civil cases, including automobile accident cases, is called the "preponderance of the evidence" standard. It is much less strict than the standard in criminal cases of proof "beyond a reasonable doubt". The "preponderance of the evidence" standard has been defined to mean that the evidence presented by plaintiffs must be more likely to be true or accurate than not true. In essence this means that plaintiff's evidence must convince a fact-finder mind more than 50% that the facts alleged by the plaintiff are true.

In all matters involving a personal injury it is essential that measures be taken promptly to preserve evidence, investigate the accident in question, and to file a lawsuit prior to the deadline imposed by the statute of limitations.

The above is not legal advice. That can only come from a qualified attorney who is familiar with all the facts and circumstances of a particular, specific case and the relevant law.

Originally posted at InjuryBoard by Scott Smith

General Types of Compensatory Damages in Personal Injury and Medical Malpractice Cases

Scott Smith — Sat, 24 Mar 2007 16:16:20 GMT

Loss of Income

You are entitled to compensation if your injuries prevent you from working, causing you to lose income. For example, if you are a landscaper who can't work for a week because you sprained an ankle in an accident, you are entitled to compensation for that week of lost wages. You are also entitled to lost wages if you miss work because of treatment.

If the injury is serious enough and you can no longer perform the duties of your job or occupation, you can sue for "loss of future earnings capacity." For example, if a construction worker who builds custom homes loses a hand in an accident, he or she can sue for loss of future wages. At Smith Phillips - Trial Lawyers, we work with expert vocational and financial witnesses who can assist in proving the amount of economic loss that will be suffered in the future.

If the accident results in death, a family member can sue on behalf of the deceased person (decedent) for any lost income that the victim would have earned based on the work-life expectancy of the decedents. The future earnings are "discounted" to present value by reducing the total award. Example: Suppose the decedent, who was 55 years old, made $50,000 a year and his or her work life expectancy was another 10 years. A lump-sum payout of $500,000 would be more valuable today than $50,000 over 10 years because you can invest that money. Therefore, the $500,000 would be discounted. Several very complicate formulas are used for discounting.

Cost of medical expenses/treatment

A substantial medical bill is compelling evident of the seriousness of an injury. Cost of medical care is one of the most important elements that we examine when calculating the potential value of a claim. Obviously, the higher your medical bills, the more damages you are entitled to. In addition, the cost of future medical expenses is an important consideration as well. If you are facing years of treatment that could last a lifetime, then the amount of damages you will be awarded will normally be substantially increased. Proving the amount of future medical care is an area that requires substantial personal injury experience and the use of appropriate experts.

Property damage

You are entitled to compensation for any damage to your property in addition to your physical injuries. Car damage typically accounts for most property damage awards. In addition to the loss of value or repair costs associated with your vehicle, the contents of your car may also be damage in an accident, and you can be reimbursed for damages to this property as well.

Property damage valuation is an art form that may require the services of a professional or expert appraiser. If the property has been completely destroyed so that it is of no further use and has no salvage value, the measure of damages can be set at the fair market value of the property immediately before its loss. Property damage is calculated based upon the value of the property prior to the accident, not replacement value.

If the property can be repaired, the amount of damages can be set at the amount it costs to repair the property plus the loss of its use by the owner. If the cost to repair the property exceeds the fair market value of the property before loss, the damages can be limited to the fair market value. In addition to the cost to repair or replace plus loss of use, interest and loss of profits may also be added as elements of damages. Finally, while your vehicle is being repaired you may be entitled to recover the costs of renting a car or other substitute transportation.

Pain and suffering

The most personal, and often the most difficult to prove element of all damages is the pain and suffering that an injure accident victim has to endure. At Smith Phillips - Trial Lawyers, we take our job of demonstrating this aspect of your damages very seriously. Though pain can be felt only by you, it can be evidenced by reference to the use of painkillers, the frequency and length of your treatment, the types of treatment, and the recovery time. An attorney from Smith Phillips - Trial Lawyers will interview you, your spouse if any, and any other witnesses who were familiar with your lifestyle before the accident so that it can be measured in comparison to the lifestyle after the accident. It is important to us to make sure that each and every aspect of your lifestyle that has been compromised is made known to the jury, and proven through witness testimony and other evidence. Your loss of enjoyment of life is a compelling element of your claim that requires careful attention and experienced counsel.

Obviously, a person who undergoes several surgeries followed by excruciating physical therapy for a shattered knee will likely receive higher damages for pain and suffering than an accident victim who does not need surgery or physical therapy. Similarly, an injury that takes one year to heal will be worth more in damages than one that takes only two months. In case where there is a permanent injury, Smith Phillips - Trial Lawyers will likely employ an expert to testify on your behalf as to the limitations imposed by the permanent condition and the appropriate value of compensation that may be appropriate. A permanent disability will normally increase the damages awarded to you significantly. Ohio, however, prohibits recovery of damages for pain and suffering in wrongful death cases.

Mental anguish/emotional distress

Though mental anguish and emotional distress are often confused with pain and suffering, they are not the same. It can be quite normal for an accident victim to experience some sort of emotional distress in addition to physical pain. Fear, anxiety, shock, grief, mental suffering, shame and embarrassment are some of the symptoms of mental anguish that can normally result from a traumatic accident.

Example: Suppose a mother pushing her child's carriage down the sidewalk sees a car about to hit her and her child, but there is nothing she can do. The terror she experiences before the impact can be considered mental anguish. State have put limits on who can sue for emotional distress and under what circumstances. The barriers are to prevent a possible proliferation of personal injury lawsuits based solely on mental anguish. In some states, if you are not the injury victim suing for emotional distress you have to pass what is known as the "zone of danger" test. Using the example above, the mother can sue for mental anguish even if she is not hurt, because she was so close to the zone of damager that she could have been hurt. The injured child's father cannot sue for emotional distress if he was not present during the accident or at a distance away from the zone of danger. Paugh v. Hanks, 6 Ohio St. 3d 72; 451 N.E. 2d 759 (1983)

Another limit some states have imposed on emotional distress lawsuits is the "physical manifestation rule," used in cases where the plaintiff is not injured. For example, you are suing for emotional distress, among other things, in a libel suit. You'd have to show the emotional distress resulted in "physical manifestations" - - e.g., loss of weight, depression or ulcers. In Ohio it is not necessary that the plaintiff prove physical manifestations, but the emotional distress must be severe and debilitating if it is not accompanied by physical injury. Shultz v. Braberton Glass Co. 4 Ohio St. 3d 131, 447 N.E. 2d 109 (1983).

Loss of consortium

A serious accident can leave a victim in serious pain and permanently disabled. Though these types of damages are separately compensable, personal injury laws also permit injured victims or the relatives of a decedent to sue for "loss of consortium," or the loss of love and companionship as a result of an accident. A severe and disabling injury can affect a personal relationship in a variety of ways, as where many of the romantic and recreational activities that two spouses once enjoyed together may not longer be possible.

Loss of consortium would also apply if an accident left a husband or wife unable to perform chores that the spouse relied upon. Though this type of recovery usually is less than the amount of recovery awarded for pain and suffering, loss of consortium can be a major element of damages in extraordinary circumstances, as where an accident causes a victim to become a paraplegic or otherwise disabled.

Lost opportunity

In addition to lost wages and future lost wages, you can seek compensation for any lost business opportunity resulting from an accident. It is important to be careful when presenting this type of damages to a jury. For example, not every child who suffered a facial scar in an accident "would have been a movie star". Only where there is ample proof of a lost opportunity should it be presented, otherwise speculative claims may be rejected by a jury and hurt your credibility for recovery on other, more concrete claims.

The above is not legal advice. That can only come from a qualified attorney who is familiar with all the facts and circumstances of a particular, specific case and the relevant law.

Originally posted at InjuryBoard by Scott Smith

The Medical Malpractice Crisis That Wasn't

Scott Smith — Wed, 21 Mar 2007 14:19:20 GMT

People in Iowa learned the United States Chamber of Commerce medical malpractice crisis exist in this country doesn't exist after all.

Lawmakers in Iowa, like Ohio, have continuously urged reform in the legal system to cap pain and suffering damages in medical malpractice lawsuits. The U.S. Chamber of Commerce representing the interest of big business and big media complain that big verdicts drive up the cost of malpractice insurance for medical providers thus forcing them out of business. The Chamber went on to claim if verdicts for personal injury and wrongful death due to medical errors were capped then medical negligence insurance premiums would be reduced. The Chamber then concluded lower premiums would reduce the cost of healthcare and save doctors from moving out of the state.

In Iowa, as it is true throughout the country, there is no proven causal relationship between damage caps and lower malpractice premiums. Nevertheless, the pro-business lawmakers insisted there was a time for a change. Lucky for Iowa, no such "tort reform" passed, no caps were placed on jury verdicts and doctors did not leave the state in droves. Interestingly, the biggest malpractice insurer in Iowa, Minnesota-based MMIC group, lowered it's medical malpractice rates 15%. So much for the medical malpractice crisis that wasn't.

An excellent article on the truth behind the alleged medical malpractice crisis can be found at attorney Gary McCallister's site.

Originally posted at InjuryBoard by Scott Smith

Hiring a Personal Injury or Medical Negligence Attorney on Contingency

Scott Smith — Wed, 14 Mar 2007 14:13:44 GMT

Abraham Lincoln once said, "A lawyer's time and advice is his stock in trade." In essence, asking an attorney for his advice is no different than asking an accountant to set up a business plan or do your taxes, a doctor to examine you, render a diagnosis and prescribe treatment or hiring an electrician to fix the wiring of your home. Nonetheless, many people are under the impression that calling a lawyer and asking a question is free. Although most lawyers will gladly answer preliminary questions regarding a legal matter, when it is determined a lawyer is needed, a fee contract is required.

Most lawyers charge by the hour, as do most professions. Depending upon the lawyer's qualifications, experience and expertise, the hourly rate will vary. However, there are situations attorneys will work for a client on a contingent basis or on a reduced hourly rate and negotiated lower percentage. A contingency fee allows a lawyer to charge a client a percentage of money recovered in behalf of the client in a given case. A contingent fee contract has been referred to as the "poor man's key to the courthouse" because many individuals who are in need or require the assistance of an attorney cannot afford an hourly rate.

Moreover, many legal matters not only require an attorney's time and advice but also monety to advance expenses for police and accident reports, photographs, medical records, court filings and subpoenas, depositions and payment for expert witness fees, common to personal injury and medical malpractice cases. The advancement of these expenses can be substantial and in medical negligence matters can often reach $30,000 to $50,000.00. A client who cannot afford the hourly rate of an attorney most likely will not be able to afford the expenses needed to adequately prepare the case. In personal injury cases the cost are usually much less and can be anywhere from a few hundred dollars to thousands of dollars.

If an attorney agrees to take your personal injury, product defect, medical negligence, class action, drug defect, premise liability, or other related incident that causes serious personal injury or death a contingency fee contract may be the only way of retaining a lawyer. Added to this scenario is the realization that many injured people are unable to work and suffer financial stress as a result of their physical injuries. Those injured individuals or their families are unable to pay expenses to retain experts and pursue their case. For those reasons contingency fee lawyers must advance the case expenses from their own accounts often times expecting those expense to be reimbursed at the time a settlement or judgment is procured in behalf of the client.

A contingency fee contract based upon a percentage of the amount recovered must not be entered into by the attorney or client without careful consideration because if the case is not successful and a settlement or judgment is not procured in behalf of the client, the attorney will have nothing to collect as a fee. This risk is borne by the attorney and adds to the basis of the percentage charged. The more difficult the case, the less likely the case will be successful and therefore, the higher the percentage charged. Nonetheless, each case must be examined on its own merits to determine the appropriate fee charged.

Most personal injury and medical negligence contingency fee attorneys charge from 25-40%. When entering into a contingency fee contract, the attorney and the client must determine the likelihood of success of the case, the amount of recovery if the case succeeds, the prior practices and attitude of the insurance representative or other side with respect to settlement or need for trial, the likelihood of collecting a judgment, the availability of alternative dispute resolution, the amount of time a lawyer is likely to spend on the case, the difficulty of the issues involved in the case, and the expenses of the litigation, whether they be shared or advanced by either the attorney or client. If an attorney is successful on a contingency fee contract the risk of taking the case on a percentage is realized. However, if an attorney is not successful the attorney not only fails to recover a fee but will have cost considerable time that could have been realized if the client had paid by the hour.

A common myth propagated by big business, big media and insurance companies is that contingency fees encourage lawyers to file frivolous lawsuits. However, the opposite is true. A competent and qualified lawyer is not about to take a case on a contingent basis unless the case has merit. Filing a frivolous lawsuit undoubtedly results in wasted time and effort by the attorney with the chance sanctions or attorney fees awarded against the filing attorney if the suit is deemed frivolous.

At Smith, Phillips, & Assoc. the majority of our personal injury or medical negligence practice is based upon the execution of a contingency fee contract with clients who are unable or would prefer not to enter into an hourly contract. Unfortunately without contingency contracts, the majority of those in the middle or lower socio-economic sector of our community could not afford a lawyer. Of course, this is exactly what insurance companies and big business would like to see happen.

Originally posted at InjuryBoard by Scott Smith

What is a Statute of Limitations and How Does it Apply to Bodily Injury from Auto Accidents and Medical Malpractice Claims?

Scott Smith — Sat, 10 Mar 2007 16:12:11 GMT

As with all lawsuits, a statute of limitations restricts the time in which you can file a lawsuit for negligence. In Ohio, the statute of limitations for most personal injury negligence is two years. If you miss the deadline, you usually have no legal recourse. Note that the statute of limitations for medical malpractice cases is only one year with exceptions. O.R.C. Ann Â§2305.11. If you are injured, it is essential that you contact an attorney immediately so as to be sure to preserve all of your legal rights before they are barred by law.

The above is not legal advice. That can only come from a qualified attorney who is familiar with all the facts and circumstances of a particular, specific case and the relevant law.

Originally posted at InjuryBoard by Scott Smith

Hospitals Turn to Mediation to Resolve Hospital Errors

Scott Smith — Thu, 08 Mar 2007 12:47:13 GMT

In an attempt to curtail costly legal expenses in defending medical malpractice claims the University of Pittsburgh's Medical Center has aggressively pursued a process of mediation in an attempt to resolve malpractice claims before they go to court. The advantage of doing so is not only sensible but demonstrates medical providers change in position that has been urged for years by medical malpractice attorneys who represent victims of hospital errors.

The mediation process is beneficial not only to the medical provider but also the injured patient as it provides not only monetary settlement but also non-economic recourse such as plaques, monuments, or hospital rooms named in the patient's honor.

The University of Pittsburgh Medical Center mediated 77 cases and settled 68 of them from 2004 through mid-January 2007, according to Richard Kidwell, Associate Counsel and Director of Patient Safety and Risk Management at the hospital. Kidwell, a national expert in mediation developed the program borrowed from the John Hopkins Medical Institution in Baltimore and implemented the practice in Pittsburgh with great successes. However, the University of Pittsburgh Medical Center mandates all patients sign an agreement prior to receiving treatment that requires the patient to resolve any potential future claims for negligence through mediation before ever filing a complaint against the medical provider. Although the hospital claims this process to be voluntary and confidential, the agreement could be deemed a contract between the patient and the medical provider that could be binding in a court of law.

The Pittsburgh mediation system implements one mediator who entertains statements or arguments from the patient and medical providers' attorneys in a joint session prior to meeting with each side individually in an attempt to resolve the dispute. This form of alternative dispute resolution is certainly a welcome site not only to patients but also medical providers. If the process was required throughout the country and entered into earnestly by both sides, many malpractice lawsuits could be avoided.

Originally posted at InjuryBoard by Scott Smith

Hospital Errors in Minnesota on the Rise

Scott Smith — Mon, 22 Jan 2007 12:57:35 GMT

For the second straight year Minnesota hospitals reported medical errors resulting in death rose from the previous year. Overall the death toll from medical negligence showed a 50% increase in the number of "adverse events" reported by hospitals and centers for surgery between October 2005 and October 2006 citing to the Annual Minnesota State Report.

The program Minnesota has in place a procedure wherein the medical provider is required to report twenty-seven types of incidents known as "never events", because they are never supposed to happen. In the nation, Minnesota is the only state that publicly discloses the medical errors with a summary of the occurrences at each hospital.

Most medical errors fall into the category of objects left behind in the patients body following surgery, mostly sponges and needles. In three cases, the wrong patient received a medical procedure that was designed for another patient. As a result of the reported errors, the University of Minnesota Medical Center now requires the surgeons to sign their initials directly on the body part where they plan to operate and before the surgery, nurses list every clean sponge and needle on a white board on the wall to help insure they leave nothing in the patient.

The Health Commissioner for Minnesota, Dianne Mandernach, could not explain the increase in deaths wherein 154 incidents were reported statewide in 2006, up from 106 incidents discovered the year before.

In most instances, if the patient was not harmed, patients usually wanted only an apology and assurance the mistake would not happen to the next person.

Originally posted at InjuryBoard by Scott Smith

Study Shows Long Hospital Shifts and Sleep Deprivation Cause Deaths in Hospitals

Scott Smith — Tue, 12 Dec 2006 16:36:01 GMT

A recent Harvard Medical School study found long hospital shifts and sleep deprivation resulted in fatigue related mistakes and increased harm to patients by 700%. Residents who worked five marathon shifts (24 hours or longer) in a single month directly correlated with making errors that in turn increased the risk of death by 300%.

The study included the fact that medical residents are regularly scheduled to work marathon shifts. Numerous studies cited in the Harvard report show that people who are awake for 18 hours straight can have trouble thinking clearly and can zone out or nod off suddenly.

The Accreditation Counsel for Graduate Medical Education out of Chicago limits work schedules to no more than 80 hours in a week but still allow marathon shifts that last beyond 24 hours. The study included a survey of over 2700 first year medical residents who reported errors they made while on duty. The residents in the study reported making 156 fatigue related errors that injured the patient and 31 mistakes that led to wrongful death.

The study also revealed approximately 100,000 medical residents in the United States routinely work marathon shifts resulting in data suggesting there are tens of thousands of preventable injuries to patients annually.

Common characteristics of residents who worked five or more shifts of 24 hours or longer suffer from forgetfulness, difficulty in making decisions and lack of attention. These characteristics often lead to falling asleep during surgery, nodding off while talking to or examining a patient and dozing during medical lectures or patient rounds. The study can be found at Charles Czeisler, Harvard Medical School; Public Library of Science (PLoS) Medicine.

Originally posted at InjuryBoard by Scott Smith

Hospitals Are Not Fast Enough to Prevent Death From Heart Attacks

Scott Smith — Fri, 24 Nov 2006 13:47:38 GMT

Researchers found only a small percentage of hospitals meet nationally recognized standards in preventing death from heart attacks. The American Heart Association and American College of Cardiology found even the top hospital performers met the minimum guidelines half of the time to the prevent the wrongful death of its patients. Only one third of all hospitals were found to provide emergency care to heart attack victims fast enough to meet the medical requirements for saving lives.

It was reported about 200,000 people a year have heart attacks caused by blocked valves in main arteries that supply blood to the heart. Of those, about 10,000 die each year while in the hospital. At least one study has found if every hospital met the minimum guidelines, doctors could save 1,000 patients lives per year.

The recommended treatment for heart attack patients is to receive angioplasty, inflating a tiny balloon at the site of the blockage, which cuts a patients risk of dying by 40% if performed within 90 minutes after arrival at the hospital. The study also showed 80% of people live within an hour's drive of a hospital but only one third of heart attack patients get angioplasty to save the patient's life within the 90 minute window of the patient's arrival.

Originally posted at InjuryBoard by Scott Smith