March 24, 2015

Lemaire v. Covenant Care - Nursing Home Abuse Fine Reduced

We expect when we entrust the care of our loved ones to a nursing home facility, those staffers will treat them as their own. Unfortunately, that is often not the case, and elderly, vulnerable persons are subjected to neglect, over-medication and sometimes even abuse.
In North Carolina, there is a detailed list of resident rights, as put forth by the state Division of Aging and Adult Services. The list is long, but essentially gives patients the right to be treated with consideration, personal dignity and respect, to receive appropriate care and treatment that complies with all state and federal laws, to be free of physical and chemical restraints and to maintain personal privacy with regard to medical records and personal communications.

Violations of these and many other rights can result in stiff fines issued by the state. The North Carolina Division of Health Care Service Regulation tracks these fines and reports that since 2006 in Mecklenburg County, there have been 23 state-issued fines (sometimes to the same facility) totaling $142,700 paid by area nursing homes. This doesn't account for all fines issued, as in some cases, the fines were rescinded when the facility complied with certain requests.

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March 21, 2015

Uriell v. Regents of UC - $550K Lawsuit for Failure to Diagnose

A California appellate court recently upheld a $550,000 medical malpractice verdict for the wrongful death of a woman whose doctor failed to timely diagnose her with breast cancer.
The cancer was reportedly already in the later stages when she scheduled her first appointment for a small lump. But the doctor, after reviewing a mammogram and an ultrasound, indicated the patient had benign cysts and should simply cut back on caffeine. The patient, with a long familial history of fatal breast cancer, returned 18 months later with other symptoms. By then, the cancer was so far progressed, there was not much treatment could do. She died little more than a year later.

Her family sued the doctor and the hospital in Uriell v. Regents of UC, arguing defendant doctor breached the applicable standard of care for declining to order an MRI or biopsy after that first appointment, given the patient's genetic propensity to develop the disease.

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March 18, 2015

Jimenez v. Applebee's - Open and Obvious Doctrine Defeats Restaurant Injury Lawsuit

In a case that has gained national attention in recent days, the New Jersey Superior Court has ruled in favor of defendants in a restaurant injury case in which a man said he was badly burned while bowing over a hot plate to pray before his meal.
The man argued he suffered burns on his eye, face, neck and arms after hot grease from his fajita "popped" in the air while his head was bowed over the food. Although he indicated the plate was "sizzling" as it was served to him, he contended the waitress never warned him the plate was hot and he suffered serious and permanent injuries as a result of coming in contact with a hazardous and dangerous condition - i.e., a hot plate of food.

However, the appellate panel in Jimenez v. Applebee's affirmed trial court's summary judgment for defense, finding neither the restaurant nor its employees were required to warn patrons of a danger that is open and obvious. The patron could clearly see/hear the food being served was extremely hot, and chose to put his face close to it anyway.

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March 15, 2015

Brown v. Jacobs - Duty to Warn in Third Person Assault Case

While our laws generally seek to avoid punishment of one person for the actions of another, there are some exceptions, particularly as it relates to a failure to protect or warn someone from a known or foreseeable danger.
As injury lawyers, we see this a lot in premises liability law, where, say management at an apartment complex failed to install working locks, which in turn allowed dangerous intruders to gain access. There have been other cases of negligent security against bars or nightclubs that failed to hire adequate crowd control to keep everyone safe, and someone was injured in a fight.

More rarely, there are cases against individuals for failure to warn of a danger posed by another individual, but usually, those cases only succeed when knowledge is clearly established and the danger was clear and specific.

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March 12, 2015

Kallal v. CIBA Vision Corp. - Contact Lens Litigation Ends

When manufacturers of products are notified of an issue with their merchandise, whether it's an inherent danger or failure of the product to work as intended, the company has a duty to notify the public. In some cases, a recall will be issued.
Recalls in and of themselves will not excuse a company from liability for harm the product causes - even if the injury or harm occurs after the announcement of the recall. However, neither is a recall proof positive of injury. Plaintiffs still have to prove causation.

In the case of Kallal v. CIBA Vision Corp., defendant conceded it had produced and sold a defective product - contact lenses - and it had even issued a huge recall of those lenses in 2007. However, defense argued plaintiff had no grounds on which to stake an injury claim because there was no proof he'd used the defective contacts and his only proof of defect was the recall.

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March 9, 2015

Sutherland v. DCC Litig. Facility, Inc. - NC Breast Implant Injury Case Remanded

A woman who underwent breast implant surgery in North Carolina more than a quarter century ago and allegedly suffered serious injury as a result will finally have the opportunity to take her case to trial. womanwalking.jpg

While it's true that litigation can seemingly drag on in some cases, this one is exceptional in the amount of time it's been pending, and there are a lot of reasons for that.

At its core, Sutherland v. DCC Litig. Facility, Inc. is a product liability case wherein plaintiff alleges the silicone implants she received were defective and inherently dangerous and the maker of those devices failed to warn her of that danger. She reportedly suffered problems that included vomiting, balance problems, swelling of the gallbladder and uterus, edema, skin rashes, painful knots in the body and chronic pain.

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March 6, 2015

Wadeer v. N.J. Mfrs. Ins. Co. - Recovery of Damages for "Phantom Vehicle" Accident

Uninsured motorist coverage in North Carolina provides a way to recover damages sustained in an auto accident when the at-fault driver doesn't have insurance. (In cases where the driver does have insurance, but it's not enough to cover the damages, the type of coverage sought is underinsured motorist coverage.)
These policies do cover hit-and-run accidents, where one vehicle strikes another and the at-fault driver is never identified or located. However, "phantom" vehicle situations are tougher.

These are cases in which one driver causes another to leave the roadway, but there is never an actual impact and the at-fault driver does not stop. It is not necessary for the unidentified vehicle to make contact with yours in order to collect coverage. However, it's likely the insurance company will challenge your claim to coverage, particularly if there were no other witnesses to the incident.

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March 4, 2015

Grebing v. 24 Hour Fitness - Waivers of Liability as Defense

Waivers aren't just for parasailing and white water rafting. A growing number of gyms, spas and other facilities that might otherwise be deemed "low risk" are requiring patrons to sign a waiver agreeing to forfeit their right to legal action in the event of injury - even when the facility is unsafe or the staff negligent.
There are numerous misconceptions when it comes to liability waivers and releases. For a long time, there was the notion that waivers were not worth the paper upon which they were written. This is not true, as liability waivers can indeed limit the degree to which a plaintiff can collect damages for negligence, if not totally eliminate it in some cases.

However, neither is it true that liability waivers offer total protection to all service providers and facilities under every circumstance. Some of the limitations of waivers that can adversely affect their effectiveness include failure to adhere to certain language requirements, the existence of gross negligence, injury to a non-signing spouse and injuries involving children.

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March 2, 2015

Ratledge v. Purdue - Medical Malpractice Claims Require Expert Witness

The importance of a qualified expert witness in a medical malpractice claim cannot be understated. Without it, the case will fall apart, and the claim will never make it to the trial phase.
This is not something a victim of medical malpractice should have to worry much about, so long as he or she has hired an experienced injury lawyer. Seemingly minor technical mistakes have the potential to cause an entire case to be dismissed, which is why it's imperative for plaintiffs to choose their legal team carefully.

An example of how things can go wrong was recently seen in the case of Ratledge v. Purdue before the North Carolina Court of Appeals. This was a case in which a college baseball player reportedly suffered permanent nerve damage in his arm as a result of a surgeon's error, yet has forever lost the opportunity to seek compensation for this mistake due to a legal oversight regarding the expert witness.

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February 27, 2015

Monfore v. Phillips - $1M Medical Malpractice Verdict Affirmed

Federal appellate court justices for the Tenth Circuit issued a clear warning to defendants who argue for more time in the wake of last-minute settlement deals wrangled by co-defendants to avoid trial: Don't count on it.
In Monfore v. Phillips, a doctor was accused of medical malpractice - alongside several other physicians. As often happens in these cases, defendants all presented a united front as the litigation wore on. There are, of course, many benefits to this, such as reduced costs by pooling resources.

However, it's quite common for litigation to end in settlement agreements prior to trial, and it's not unheard of for these developments to occur even on the eve of trial - or during trial. So when every other defendant broke rank on the united front and struck a deal with plaintiff just before trial, the sole remaining defendant doctor claimed he had been blindsided and needed more time to develop a new legal strategy, one that would have pinned the blame on his former co-defendants.

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February 26, 2015

Needham v. Price - Parental Immunity Doctrine Won't Bar NC Child Injury Claim

The parental immunity doctrine is a long-standing legal principle holding that minor children can't sue their parents for tort-related claims, and parents can't sue their children either. The general idea is to avoid undermining parental authority and control over his or her children, and also to maintain the peace of the family unit.
Most courts adhere to the 1891 Mississippi Supreme Court ruling in Hewlett v. George in which it was found so long as a parent is under obligation to care for the child, the child is under the reciprocal duty to aid, comfort and obey. Criminal laws will provide children protection from parental wrongdoing or violence, the theory goes.

But, there are many exceptions to this doctrine. It's not an issue that comes up often, but it did recently arise in the North Carolina Court of Appeals case of Needham v. Price, where it is alleged willful and malicious injury was caused. In those cases, parents cannot expect immunity, and that's how the appellate court ruled in overturning a previous summary judgment favoring defendant father.

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February 25, 2015

Olatoye v. Burlington Coat Factory - NC Slip-and-Fall Case to Continue

The North Carolina Court of Appeals reversed a summary judgment favoring the defendant in a slip-and-fall case at a large box chain store a few years ago.
The trial court had granted the favorable ruling to the store, but on appeal, plaintiff argued genuine issues of material fact existed that precluded such an early finding, and the appellate court agreed.

Although trial court judges can grant a favorable ruling to one side or another prior to trial, it almost always must be that the claims are defeated or proven as a matter of law. Where central issues of fact are still in dispute, those are matters that must be parsed during trial.

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February 23, 2015

Study: Child Toys Cause Injury Every 3 Minutes in U.S.

An alarming new study indicates injuries caused by children's toys is a fast-growing problem. In fact, the number of toy-related injuries has shot up by nearly 40 percent since 1990, according to the latest edition of Clinical Pediatrics.
With more than 3 million children treated in hospital emergency rooms for toy-related injuries over the course of more than a decade, that breaks down to one child every 3 minutes. Study authors say that is in fact a low estimate because it does not include the number of children who seek treatment in urgent care centers, doctor's offices or not at all.

It also doesn't encompass the number of children who died as a result of toy-related injuries, which according to the U.S. Consumer Product Safety Commission occur most often in association with small-part choking hazards, balloon asphyxiations and riding toys, such as push scooters.

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February 21, 2015

McClellan v. I-Flow Corp. - Pain Pump Lawsuit Revived

When we are prescribed a medication or treatment, we have the right to presume those products or drugs are safe when used as intended, and that any inherent risks will be disclosed. shoulder1.jpg

Unfortunately, far too many pharmaceutical companies are in a great rush to get their products on the market in order to turn a profit without thoroughly testing to ensure consumer safety.

One such example has been seen with regard to so-called "pain pumps." These devices were created with the intention of speeding the healing process by delivering a direct dose of medication (usually painkillers) into areas where surgery had recently been conducted. However, problems have arisen in cases where the pain pumps were inserted directly into the joint space. Not only does it allegedly slow one's recovery, it could potentially cause permanent injury in the form of chondrolysis.

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February 19, 2015

Eriksson v. Nunnink - Equine Injuries Compensable Under Limited Circumstances

Horses are beautiful, stoic creatures to which many people are understandably drawn. However, they can also, by virtue of their size and nature, be very dangerous animals. In some cases, contact with horses or involvement in equestrian activities can result in serious injury or death - even in a fairly organized setting.
Succeeding on a claim of liability for horse-related injuries in North Carolina is difficult because of the provisions in Chapter 99E of the North Carolina General Statutes. This is also sometimes referred to as the "Equine and Farm Animal Activity Liability Act."

Basically, the law states owners and sponsors of activities can't be held liable for injury or death of a participant that results from the inherent risks of horse-related activities. Inherent risks are defined as dangers or conditions deemed an integral part of engaging in equine activity. So if a horse is startled by a sudden movement, sound or activity and kicks you, resulting in injury, that may not be compensable because horses are known to behave unpredictably to such stimuli, so it would be considered an inherent risk.

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