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Personal Injury

Common Mistakes Made by Personal Injury Victims

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Life is full of mistakes and this article will talk about common mistakes made by personal injury victims. The first mistake people make after they have been injured is believing the insurance adjuster and their claims. The reason you can’t believe the insurance adjuster is they have a duty to their insured. That duty means that they represent the person who caused the accident. They have to do what is in their client’s best interest. Put simply, it is in the best interest of the insured to pay as little as that as possible. If they can get you to accept $200,000 then that’s what’s best for their insured but not for you. Remember, it’s not that the adjuster is a bad person but our judicial system is adversarial. We believe that two sides competing to present their best information is going to get us closest to the truth.

The Second common mistake made by personal injury victims is believing the insurance company when they say that their insured did nothing wrong. Often times people hear this and decide to no longer pursue their cause of action. Remember who the adjuster owes a duty to, it for sure isn’t you. First and foremost it should be to their insureds. Second they have a duty to the insurance company and their shareholders. You don’t make the list.

The third common mistake made by personal injury victims is asking for too little in their initial demand. Your initial demand is going to set the ceiling for your recovery. It is likely not what the insurance is going to pay. In some cases your initial demand will be your cap and often times can hurt you in the long run. Through form 95 in the FTCA your initial demand is the cap that you can receive from a jury. You need room to negotiate with the insurance company. A low demand or a demand on where you think the case will settle for will eventually handicap you.

The fourth mistake people make is not getting an expert involved early enough in the case. Now experts are expensive but the majority of time your attorney will front the cost of the expert and will settle for being reimbursed the cost when the case closes. Experts are a key component of proving any case. The earlier you get an expert involved the more information you will have and the better odds you have of meeting your burden of proving your claim. Involving experts early will also allow them to investigate the scene of the accident before anything changes and gets them a much better idea of what actually happened the day the accident occurred.

Finally, the last mistake people make is not checking for all the available insurance coverages available to their client. Often times there are several different insurances that can apply to a case and even some defendants that you may not initially think should be involved. The most common mistake in car accidents is not looking into the insurance coverages that the injured individual has access to. Insurance like UIM coverage require technical knowledge to access that insurance and not every case applies but when it does it can be a very good avenue of insurance for the injured party.

 

What is the Lawsuit Discovery Process?

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What is the lawsuit discovery process?

Cases are won and lost during the discovery process. Once we start on a case, we get all the records and we look into the facts of every witness. Once a lawsuit gets filed that’s when the official discovery process begins. Written discovery such as initial disclosures, requests for admissions and interrogatories make up written discovery.

In the lawsuit discovery process, initial disclosures are a list of witnesses, copies of medical records and other documents that will be used at trial. Requests for admissions are essentially a list of facts that the opposing side wants you to admit to. Interrogatories are a fancy way of asking questions of the other side before depositions.

Every case is different and because every case is different the number of documents largely vary. Even in simple cases, it is common to have several hundred pages worth of documents to review. In large cases, discovery documents can reach over a million pages. Needless to say, document review can be quite demanding during the discovery process. Document review is usually the biggest  contributing factors in delaying the case.

Depositions are the sworn testimony of fact and expert witnesses. People who have knowledge of the disputed event will have to answer questions under oath. Every deposition will be taken with the threat of perjury penalties attached to their testimonies. Most depositions I take will be videoed. As much as the words of the witness will tell a story, their facial expressions will also tell a story. With video you are able to see who these people really are, and how they will present themselves to a jury. Depositions are also an opportunity to explore if there are other documents that may not have been disclosed which should have been.

Expert witnesses are largely determined by what is found in the reviewed documents and what type of case it is. Medical malpractice cases usually involve more expert witnesses. This is largely due to the underlying dispute being complicated, and the negligent standard being so hard to overcome. We may need a medical expert to testify of pre-existing conditions that may or may not have contributed to the patients pain as well as someone who can credibly testify of what should have happened during the surgery. Economists and forensic accountants are also commonly used to determine damages as well as a way to bolster or counter each other’s assertions.

In all phases of the discovery process it is imperative to understand that the devil is in the details and your attorney should be equally committed to each of the phases discussed above.

Depositions and the Consequences of Answering I Don’t Know

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What are the possible consequences of saying I don’t know during a deposition? A Deposition is a sworn pretrial testimony that helps attorneys prepare for trial.  Answering I don’t know during the course of a lawsuit may be helpful but the reality is that it can also hurt. One thing is certain, is that saying I don’t know is going to lock you into your testimony. If you have a different answer later on, you have a problem.

When you bring a lawsuit, the defense will have an opportunity to question you and that’s known as a deposition.  The defense lawyer will question you in your attorney’s office. There is no jury present but instead there is a court reporter. The court reporter will record all of the questions and all the answers that you give. Your answers will be the basis of your pretrial testimony. There is not a judge or a jury during your deposition. However, everything you say during the deposition session is your testimony. It carries the same weight as it will at the time of trial.

It is very important to understand that telling a little white lie during a deposition can have serious consequences. Literally the other sides job is to find evidence to contradict every statement you make under oath. At the deposition you will be asked questions that you will not know the answer to.  The important thing to remember, is it is OK to say I don’t know.

No one can remember every single thing. After the deposition, your attorney will send you a copy of the transcript to read over and correct if needed. The defense attorney will use this opportunity you had to correct any changes to lock you in. This is why it is crucial to prepare for a deposition and take it seriously. The defense attorney will try and use it against you to contradict your testimony at trial and how you answered questions during your deposition. The defense attorney is going to try and show that there are significant inconsistencies between the testimony that you gave pretrial in your attorney’s office and the testimony that you are giving at trial.

For example, in a car accident case. A question about your speed at the time of the accident will likely come up. During your deposition you say my attorney told me not to guess and you say I don’t remember because it’s the truth. The defense attorney will probably try and get you to give an approximation or give a range of speed, but again, your attorney has told you not to guess, so you answer that you don’t know.

At trial the defense attorney is now cross-examining you. During your cross-examination he asks the same exact question that he did at the time of your deposition. Remember, the jury does not know anything about what went on during your deposition. For all they know, you’re being asked the question of how fast were you traveling at the time of the crash for the first time. However, at trial you say you were traveling at 35 mph. Now you may have a credibility problem. Remember, an answer of I don’t know locks you in, and is as significant as saying any speed.

The defense will likely shake their heads and pull out the transcript from your deposition. They will attack your credibility with your previous sworn testimony. If there is a discrepancy between what you said during your deposition and what you remember at trial, your attorney should ask you what the source of the discrepancy is and why you remember the speed now but not then. Your attorney will likely be able to easily explain why you can remember now, and it will take the wind out of the defense’s sails.

Your attorney has an obligation to explain to the jury why your answer is so different from your earlier testimony. Different answers in trial than depositions are a fact of life but usually they are easily explained if you communicate with your attorney. Remember, the power of saying I don’t know. It may help you, or hurt you, or it could do both but it for sure locks your answer in.

Dermatologist Dances into Cosmetic Surgery Malpractice

By | Medical Malpractice, Personal Injury, Uncategorized, Wrongful Death | No Comments

Surgeon Dances into Medical Malpractice by making music videos while operating on her patients.

Dr. Windell Davis-Boutte’s website calls her “Atlanta’s most experienced cosmetic surgeon,” but recently her biggest experience has been dealing with medical malpractice cases. Dr. Davis-Boutte’s has four pending lawsuits against the doctor, and more than 20 videos previously posted on YouTube featured the board-certified dermatologist dancing and singing around exposed, unmoving patients. In one especially heinous video Boutte made incisions while she sang and cavorted to the camera.

26-year-old Ojay Liburd filed a lawsuit against Dr. Boutte last year. Liburd’s mother,  saw Boutte for a liposuction and a panniculectomy. It was weeks before her wedding, and she was credits away from earning her Ph.D. Unfortunately, Cornelius never wore her wedding dress and never married. After a more than eight-hour procedure, Cornelius’ heart stopped. She suffered permanent brain damage and will need care for the rest of her life.

During her procedure, Cornelius was not intubated, and did not receive general anesthesia. She was given a cocktail of drugs, including Propofol and fentanyl. No end-tidal CO2 monitoring equipment was used during the procedure. Boutte does not have hospital admitting privileges, and her Lilburn office is not a licensed surgery center. Cornelius went into cardiac arrest while Boutte was sew ing her tummy tuck incision. Her certified registered nurse anesthetist who was monitoring Cornelius’ vitals had already left the room. Boutte’s office elevator was too small for the stretcher, so first responders had to carry Cornelius down the stairs.  Dr. Boutte has settled the lawsuit with Cornelius’s family at an estimate of $13 million dollars.

Boutte’s website states “Dr. Boutté is board certified in both surgery and dermatology.” However, that is a lie. According to state medical records, Boutte is a board-certified dermatologist, and is not board certified in general surgery or plastic surgery. Unfortunately, in Georgia it is legal for any physician to operate, even if they are not a board-certified surgeon.

Remarkably Dr. Boutte is still performing surgeries and has not had her license to practice medicine  revoked. Her website still claims she is a board certified surgeon, and still is performing cosmetic surgeries. As Cornelius’s son puts it, Dr. Boutte is still getting up and going to work every day and making a great deal of money, subjecting patients who are none the wiser to her unsafe practices, while my mother a previous Ph.D candidate can no longer speak.

Like all professions there are good and bad doctors. Unfortunately, for whatever reason, the Georgia medical board has decided to protect Dr. Boutte and not suspend or revoke her license. If you or a loved one are considering plastic surgery, please investigate the doctor first. You can’t just believe what is on their website, you must investigate what certifications they are claiming and look into their malpractice history.

 

Big Pharma and Big Tobacco

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Opioid Addiction

President Trump has declared the opioid addiciton crisis a national emergency, but nothing is changing. If it really is a national emergency, why has nothing happened to stop it? President Trump declared a 90 day public health emergency to mobilize the federal government. Unfortunately, that declaration expired with barely a flutter.

A senior White House official disputed the assessment of inaction concerning opioid addiction. The official claims that the declaration has allowed the president to draw further attention to this emergency. The declaration has enabled federal agencies to really change their focus. The official also added that an effective media campaign takes time and not to judge to quickly.

West Virginia, has the highest drug overdose death rate due to opioid addiction in the country. Public Health Commissioner Rahul Gupta hasn’t seen any significant change under Trump’s emergency order. West Virginia and other state have not seen additional funding nor resources.

Manufacturers of opioids much like big tobacco hid their addiction literature from consumers and the prescribing doctors. Opioid addiction has increased substantially since 1999.Opioid addiction now claims roughly more than 115 lives every day. Even more terrifying, is that 75 percent of those abusing opioids, report that there first interaction with the drug was through a valid prescription.

Multiple lawsuits have been filed and the man responsible for taking down big tobacco has called pharmaceutical companies “pretty evil.” The lawsuits filed allege that the pharmaceutical companies lied about the addictive properties of their drugs in the name of the almighty dollar.

I tend to believe him. There are promotional videos that rate the addiction rate much less than one percent.The assertion that addiction rate was less than one percent is a lie, and the pharmaceutical companies knew that it was a lie. In fact, the sales training focused on telling doctors that less than one percent of patients became addicted. Not a single study could support their assertions.

You Should Sue

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When an injury occurs, you should sue. There is a new burden thrust onto the person injured and also a burden to society. When our ancestors were trying to decide who should bear that new burden, it decided on the person who caused the injury. Wouldn’t it be an injustice for the injured party to carry that new burden? To not only have to deal with the injury but also the monetary consequences of that injury.  Most people agree that it would be unjust for an injured person to carry that burden. For that reason, tort law was created. Tort law was created to help alleviate the injured’s burden and help society move forward.

Many people believe that a person should not be punished for an honest mistake. I can understand that thinking, but that doesn’t take into the account the new burden forced on the injured party. Many times people have medical bills and extra care that are completely unexpected. If you were in an accident that caused you to need 24 hour nursing care, who should pay for that? While the cause of the accident wasn’t intentional, you certainly didn’t cause it, but you’re having to live with the consequences.

Most people don’t have sympathy for the driver who caused an accident while texting, but they often do when a doctor causes an injury. The question is why? The answer largely comes from a misunderstanding of what it takes to sue a doctor and why you should sue. A successful lawsuit against a doctor requires proving that the doctor’s actions were below the accepted standard of care. Below the standard of care is when a mistake, is not just a mistake, but a mistake that the medical community has deemed unacceptable.  It’s a mistake that the doctor should have known not to make.

But again, who should bear the burden of the injury? If the doctor’s actions causes someone to go blind, should that person bear the cost of that injury? Or should it be the person who gets to watch the sunset on their way home? The person injured’s life will never be the same.

It’s important to realize that I’m not saying the person who caused the injury is a bad person. I’m NOT saying that the tortfeasor intentionally hurt someone. If the injury was intentional, we would be talking about a criminal act and jail time. We wouldn’t be discussing how best to restore the injured party. Put simply, the defendant committed a mistake that breached a duty of care owed to others and they should be held responsible for that breach.

 

Access to Courts

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Access to Courts

Tort reform aims to reduce the ability of victims to bring tort litigation and to reduce damages they can receive.

Utah is famous for a lot of different things, and one of those things is our people’s kindness. We shouldn’t feel bad about initiating a lawsuit, but often times my clients do.  I have to reassure my clients constantly that it is ok to sue and that it’s not immoral. Hopefully this article will explain more about tort reform and give comfort to those in the middle of the process.

Tort reform is the reason why there’s hesitation in the average person to sue, and that’s not by accident. Big business has spent billions on restricting your access to courts. Yes, billions with a B, convincing the American people it’s not in our best interest to sue. The most famous example of trying to limit your access to the courts is the marketing campaign and pr machine put into action against Ms. Liebeck and her suit against McDonalds.   McDonald’s and their insurance company spent big dough misleading the American people about the facts of the case, and they didn’t stop there. McDonald’s was really the beginning of the tort reform movement.

Did you know the plaintiff in a lawsuit can’t mention the presence of insurance without a mistrial and big business is constantly lobbying to impede your ability to use the courts? That’s tort reform. Talk to anyone who works for the insurance industry and the first thing out of their mouth will likely be about frivolous lawsuits. Our judicial system has rules in place specifically designed to prevent frivolous lawsuits but the lie that our courts are slammed with unworthy suits continues to be perpetuated. There are multiple stages and deterrents like attorneys fees to avoid frivolous suits but the lie that our courts are slammed with unworthy suits continues.

It’s no secret that I believe in an open court system. My position is quite clear,  I believe the judicial system is in the best position to settle disputes. I say that because I believe in you and my neighbor to judge the facts. I believe in the jury system. Time and time again, the jury system has proven to me juries are the best way to settle disputes. Is it perfect? No, but nothing is. My hope is that you believe in an open court system as much as I do and you begin to see who’s really on your side.

 

 

Fatal Injuries after Swerving to Miss Cow

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Fatality Caused by Swerving Vehicle  

Swerving Vehicle: If a vehicle or other moving thing swerves or if you swerve it, it suddenly changes direction, often in order to avoid hitting something.

A man suffered fatal injuries in a car crash after he swerved to avoid hitting a cow and left the roadway by over-corrected. The crash occurred on Highway 261 near the town of Blanding in San Juan County.

The driver swerved to miss a cow that was in the roadway. The vehicle clipped the cow and then went off the side of the road. The driver over-corrected, and the vehicle rolled.

The man, who was not wearing a seat belt, was partially ejected during the crash and suffered fatal injuries. He has been identified as 63-year-old Andrew Askland of Arizona.

Fatality Caused by Swerving to Miss a Deer on the Road

A 53-year-old man is in a critical condition in Southmead Hospital after swerving his car to avoid a deer.

The collision took place at 6.40am on Saturday  between Colerne and Ford.

The driver swerved to avoid a muntjac deer but lost control and crashed into a wall.

He sustained serious head injuries and was taken to Southmead Hospital.

His 22-year-old daughter who was a passenger sustained minor injuries and was taken to a local hospital.

The Opioid Crisis, Lobbying, and the Amicus Brief

By | Articles, Class Action, Personal Injury, Tort Reform, Uncategorized

Definition of opiate: a drug (such as morphine or codeine) containing or derived from opium and tending to induce sleep and alleviate pain. We are having an opioid crisis in America.

One of the most powerful lobbying groups in Washington is the U.S. Chamber of Commerce. Last year the Chamber spent over $100 million on federal lobbying.  However, the Chamber’s influence does not stop at lobbying congress. The Chamber also lobbies the courts through Amicus briefs. The goal is to avoid responsibility for the opioid crisis. Amicus briefs have become a favorite tool for lobbying groups across the country.  

Ohio was one of the first states to initiate lawsuits against major opioid manufacturers to combat the opioid crisis. Against Ohio, the manufacturers argued every defense under the sun to prevent themselves from taking responsibility for the opioid crisis in America. The amicus brief argued Primary jurisdiction, Preemption, and First and Fifth Amendment principles. The Primary jurisdiction argument is that the court does not have the authority to adjudicate the lawsuit. The Preemption argument is based on a hypothetical ending with the manufacturers being forced to commit heinous acts. And finally, the First and Fifth Amendment arguments proposed that drug manufacturers cannot be forbidden from fraudulently marketing. They want to be able to continue to fraudulently market to continue to push the opioid crisis.

Most of these arguments don’t pass the sniff test but that’s not really the point. Preemption was based on the FDA forcing manufacturer conduct.  The Chamber simultaneously argued that the FDA has limited powers and cannot oversee the manufacturers. The focus of these Amicus briefs is persistence. By persistence, I mean the same way a river is persistent against a rock. The arguments don’t need to make sense, they just need to muddy the waters. The goal of their Amicus brief is to make it impossible to sue drug manufacturers.

Opioid manufactures are persistent, in fact, so persistent that they’ve had a chilling affect on one case in particular.  Mr. Caltagirone is a man who was prescribed a fentanyl laced lollipop for migraines, but unfortunately, Mr. Caltagirone  became addicted. He went in and out of treatment, and eventually died from an accidental methadone toxicity. Prescribing fentanyl for migraines is a bit overzealous, it also sounds insane, and that’s because it is insane. Fentanyl is designed to provide relief for cancer patients in around the clock pain, not for migraines.

Mr. Caltagirone’s estate sued the manufacturer of Actiq for continuing to illegally conduct off-label promotion and in 2008, the manufacturer of the fentanyl laced lollopop  paid the government $425 million dollars as a settlement for off-label marketing. Unfortunately, this is business as usual, no one was forced to stop selling a product, and no one went to jail. The only punishment was a drop in the bucket fine. I’m not sure why, but the government doesn’t understand Economics. When someone makes a billion dollars profit, and only has to pay 40% of the profits back in fines, than there is no incentive to stop the immoral conduct.

According to the DEA, more than 6 million fentanyl prescriptions are dispensed each year. There are not 6 million cancer patients who meet the criteria for fentanyl. Most experts  estimate the need being closer to 3 million.  The trial court dismissed Mr. Caltagirone’s case and it is now on appeal.  The Chamber filed an amicus brief for the appeal in Pennsylvania. The Chamber’s amicus brief argued that Plaintiff’s attempt to enforce the FDCA through a state law tort claim stands as an obstacle to the FDA’s discretion and is preempted.  That precise argument is also being made by the opioid manufacturers in Ohio. The opioid manufacturers are attempting to stretch Buckman’s precedent into an all encompassing force field.  They want Buckman to protect all drug and medical device manufacturers from state tort claims, but so far it is not working. It’s no coincidence that the U.S. Chamber of Commerce is filing a brief in an individual drug death lawsuit that happens to support other arguments they are making across the country.
 
This isn’t the first time the Chamber has used this strategy to fight the opioid crisis. For years, the Chamber has filed amicus briefs with the purpose of narrowing the law. Their goal is to make it impossible to sue drug manufacturers responsible for this opioid crisis.  The last few years has seen a ramped up effort by the chamber. Now the Chamber seems particularly focused on thwarting arguments against opioid manufacturers. Most of the opioid lawsuits out there haven’t made it far enough to have these issues decided but If the drug industry is able to  use individual cases to stack the legal deck in their favor, governmental entities, and other individuals may never get a fair day in court.
 
 

 

Settlement

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You’ve reached a settlement. The journey that began when someone’s careless actions hurt you,  has finally come to a close. Besides feeling relief, you’re probably wondering what happens next. What is required in a settlement by both the plaintiff and defendant. There’s several steps that occur between the time a case settles and having a check in your hands. Each process is contingent on what kind of settlement is reached. The different types of settlements are primarily based on if the person hurt is an adult, minor, or if it involved the wrongful death of a person.

“A Settlement is an official agreement intended to resolve a dispute or conflict.”

Whenever a case settles, the parties need to sign a release agreement. As part of the settlement, your attorney will send you a Release Agreement to sign. Your attorney will also send another document called a stipulation to dismiss. It’s imperative to put in a timetable for payment in the release. The Release Agreement is a document that specifies the terms between the parties. For example, in exchange for $250,000, you agree to release Mr. Jones from the car accident. Upon receipt of the settlement check, it is deposited in a trust account. Once the settlement funds become available, a check to you for your portion should be delivered.

When a claim involves injuries sustained by someone under the age of 18, the settlement requires court approval. A petition is submitted to the court specifying the terms of the settlement. The petition sets forth the amount agreed to, case expenses and legal fees. It also specifies why the agreement is in the best interests of the child. A Judge will then schedule a hearing where your petition will be presented to the court. This hearing is largely a formality but it is still important to take it seriously. Once the Judge affirms the petition, you will be requested to consent to a Release Arrangement as described above.

In a wrongful death lawsuit, there are usually claims for pain and suffering and wrongful death. Pain and suffering refers to the conscious pain and suffering of the decedent prior to death. Wrongful death refers to the monetary losses sustained by the beneficiaries of the decedent’s estate, such as loss of income, loss of maternal guidance, advice, and burial expenses. The portion of the settlement allocated to wrongful death is divided according to the loss sustained by each beneficiary.

What’s important to remember is that every case is complicated. A settlement is one of the last steps involved in litigation, but it’s definitely not the finish line.