September 1, 2014

Gregory v. Cott - Nursing Home Staffers Can't Sue Dementia Patients

One of the cruelest things about Alzheimer's disease is the way it transforms a person into someone practically unrecognizable. Someone who was once incredibly intelligent and loving becomes dull and distant. A person who was once full of life and compassion is suddenly depressed and easily agitated.
While the disease manifests itself differently among patients, one of the more common symptoms reported by caregivers is aggression and even physical violence. Most frequently, it is caregivers who endure the brunt of these violent bursts, and often sustain injuries as a result.

However, the courts have consistently held, most recently in the California Supreme Court case of Gregory v. Cott, that professional caregivers do not have the option to sue people with dementia for the physical injuries they inflict.

The reason has to do with the fact that it would be difficult, if not impossible, to prove the patient owed an initial duty to the caregiver, which proximately by breaching it resulted in injury. This is central to most injury cases. Secondly, caregivers are presumed to accept the assumption of risk when working with these patients. That is, they recognize potential violent tendencies, and should be trained with how to deal with them.

Still, these injured parties would do well to speak with an experienced personal injury lawyer in Rock Hill, as there may be other parties who might be deemed responsible. Where workers are concerned, there is always the option of seeking workers' compensation. In those claims, it will not be necessary to prove anyone was negligent. All that is necessary to prove, aside from the extent of the injury, is that it occurred during or in the course of one's employment. For staffers who have suffered injury, it will not matter if the company failed to adequately train or manage these patients. That's because workers' compensation is considered an exclusive remedy, relieving the company of any other legal liability for work-related injuries.

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August 28, 2014

Brooks v. Martin, et al. - Overcoming Governmental Immunity Defense

The North Carolina Court of Appeals recently affirmed a trial court's decision to dismiss a complaint brought by a woman seriously injured when a police officer negligently collided with her at an intersection.
While such action seems inherently unfair, it's an illustration of the principle of sovereign immunity, which can shield government entities and employees from legal responsibility for harm caused.

However, our Asheville personal injury attorneys recognize this protection is not without limit, and there are circumstances under which a person can successfully bring suit against the government or its workers. Such a case should not be pursued unless it has been carefully reviewed by an experienced injury lawyer.

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August 26, 2014

Internet Gun Exchange Host Not Liable for Death, 7th Circuit Rules

Lawsuits against online providers who facilitate gun sales between private buyers and sellers will likely not go far, if the recent ruling handed down by the U.S. Court of Appeals for the Seventh Circuit is any indication.
Although disappointing, the ruling in Vesely v. Armslist LLC is not all that surprising, given the legal precedent set by previous cases involving sites like Craigslist and EBay. Our Rock Hill injury lawyers know it's generally been held that these kinds of "online marketplaces" can't be held liable for the negligence or criminal wrongdoing of their customers.

Specifically, 47 U.S.C. ยง 230 may preclude some of these lawsuits because it says operators of interactive computer services aren't responsible for material posted by users.

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August 24, 2014

New Documentary Highlights Twisted Tort Reform Efforts

Corporations have spent millions of dollars convincing people that the majority of personal injury lawsuits are "frivolous," "trivial" and the work of money-grubbing trial lawyers. Since the 1980s, lobbyists have pressed this narrative on the public and politicians in an effort to push through tort reform efforts to limit public access to the court system - one of the only places "the little guy" can face off against a corporate giant and have a real shot at success.

And such efforts continue.
In the new documentary, "Hot Coffee," directed by Susan Saladoff, the truth about the American civil justice system is examined - starting with the 1992 case of a 79-year-old woman who sued McDonalds after spilling hot coffee on herself.

Our Charlotte personal injury lawyers know this is a classic example of how the facts are twisted in the public eye to make it seem as if the woman was absurd for suing in the first place - and the court system acted egregiously in awarding her anything.

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August 22, 2014

Donahue v. Ledgends, Inc.: Liability Waivers in Negligence Actions

Our Charlotte personal injury lawyers know that companies will try to avoid liability for negligent conduct by having customers agree to lengthy and confusing liability waivers.

climbing-the-wall-288569-m.jpgIn Donahue v. Ledgends, Inc., an Alaska case, the plaintiff signed up for a beginner rock climbing class at a local gym. The gym was designed to simulate a rock-climbing environment, as the walls were made to look like rocks with various hand and footholds attached.

The plaintiff was no stranger to risky physical activities, both while exercising and at work. According to the record, she had worked in construction and on a commercial fishing boat. She had also gone kite boarding, which is considered a dangerous activity.

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August 18, 2014

Shapria, M.D. et al. v. Christiana Care Health Services, Inc., et al.: Informed Consent and Personal Conflicts of Interest in Medical Malpractice Cases

As our Spartanburg personal injury attorney know, doctors are required to give patients all the information necessary to make an informed decision as to whether they should undergo a particular procedure. Often times, that means weighing the benefits and risks associated with the medical procedure. However, in at least some cases, it may require disclosure as to whether the doctor has a financial incentive to perform the procedure, aside from the normal medical bill.

hospitalcorridor1.jpgIn Shapria, M.D. et al. v. Christiana Care Health Services, Inc., et al., the plaintiff fell off a ladder and broke several ribs. While in the hospital, he was still experiencing significant pain in his ribs, even though he was taking oral pain medication.

Oral pain medication enters the body after being swallowed and has a pain-reducing effect on the nervous system as a whole. While some medications work better for certain types of pain than others, they are not considered a target analgesic.

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August 15, 2014

Brouwer v. Sisters of Charity Providence: The Common Knowledge Exception to the Expert Witness Requirement in South Carolina

Brouwer v. Sisters of Charity Providence, an appeal heard in the South Carolina Supreme Court, involved a plaintiff who was admitted to a hospital to undergo surgery to treat sleep apnea.

guantes-gloves-776917-m.jpgWhile in surgery, the plaintiff had some type of allergic reaction and was transferred to the intensive care unit (ICU). While in the ICU, it was determined the plaintiff had an allergic reaction to latex. Before having surgery, she was asked if she had a latex allergy and told the hospital staff she did. She was wearing a latex allergy identification bracelet at the time of her surgery.

The plaintiff filed a Notice of Intent (NOI) along with her medical malpractice negligence complaint. As your Anderson, South Carolina personal injury lawyer can discuss, South Carolina has very specific procedural requirements for filing a summons and complaint that are different from most other jurisdictions.

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August 12, 2014

Adams, et al. v. Laboratory Corp. - Failure to Diagnose Spurs Lawsuit

The most common allegation made in medical malpractice litigation is that of a misdiagnoses. That was established in a study published late last year in the JAMA Internal Medicine Journal, which revealed 72 percent of all malpractice claims against primary care doctors were the result of a doctor who either failed to diagnose the correct condition, failed to identify there was a illness or disease or who diagnosed the wrong disease.
Our Asheville medical malpractice lawyers recognize that a case of misdiagnosis can have serious consequences, when you consider that virtually all action - or inaction - a patient takes with regard to his or her health is based upon that. We trust doctors and other health care workers to get it right - or at least to meet the reasonable standard of care in reaching the conclusion they do. When they fail in this regard, it could be grounds for litigation, particularly if a patient suffers severe or lasting problems as a result of the error.

Adams, et al. v. Laboratory Corp. of America, the assertion from the plaintiff was that technicians of a laboratory failed to alert her and her doctor to the fact that cancer had been detected in her cervix until such time that the cancer had spread, requiring intensive and evasive treatments.

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August 10, 2014

Ganoe v. Metalclad Insulation - Mesothelioma Litigation Back on Track

A appellate court has breathed new life into a mesothelioma lawsuit asserting wrongful death against a former manufacturer of asbestos-laden products. The lower court ruled there wasn't enough evidence to reasonably support a theory of causation, but the appellate court disagreed, and granted the plaintiff's motion to allow the case to go to trial.
Our Greenville injury lawyers know that lawsuits regarding mesothelioma, asbestos, lung cancer and other conditions resulting from exposure to asbestos are highly complex, usually for the simple fact that symptoms of illness do not appear for decades afterward. At that point, proving which entities were responsible for the plaintiff's exposure - and to what degree - is difficult.

Matters are further complicated first by the fact that patients diagnosed with mesothelioma are up against an aggressive, terminal cancer. Timely consultation with an attorney is critical to ensuring a success in court. It's worth noting that a fair number of these lawsuits will not reach a conclusion until after the plaintiff's death. Still, it helps to ensure the victim's family will be compensated for the sudden, untimely loss of their loved one.

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August 8, 2014

NCAA Settles Head Injury Lawsuit for $70M, Set to Change Rules

In response to a class-action lawsuit alleging the National Collegiate Athletic Association failed to protect college athletes from head injuries, the agency has settled, with the agreement to establish a $70 million fund to cover the costs incurred by thousands of current and former athletes for testing to determine whether they suffered brain trauma while playing contact sports.
Additionally, the agency is rewriting its playbook with regard to how it determines whether a player is medically-cleared to return to the game after sustaining a hit. The deal doesn't set aside any funds for players who may have sustained a brain injury, unlike a previous settlement reached following a similar lawsuit against the National Football League. Instead, it provides money to current and former athletes for testing. If it is determined they have incurred neurological damage as a result of their involvement in college sports, they can pursue litigation individually.

Some sports safety advocates have criticized the deal as not going far enough, arguing that individual players could receive as little as a few thousand dollars per suit, whereas a class action settlement might have exceeded $2 billion. Players seeking to maximize their compensation would do well to consult with an experienced Charlotte head injury lawyer.

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August 7, 2014

King v. Bryant - NC Appellate Court Calls Medical Malpractice Arbitration Agreement Unconscionable

An increasing number of businesses - including health care providers - are including forced arbitration agreements as part of their terms of service. These agreements allow that if a dispute arises regarding the quality of the product or service, the consumer agrees to forfeit his or her right to a jury trial, and instead have the matter heard by a private arbitrator.
Our Asheville medical malpractice attorneys know that for health care providers, such agreements are seen as beneficial, not only because the awards for damages tend to be less, but the burden of proof may also be lesser. Plus, the findings of the arbitrator can be ordered to remain confidential, and no matter the outcome, doctors can often avoid being listed as malpractitioners on the National Practitioner Data Bank.

But the loss to the patient/consumer is considerable. While the agreements are routinely enforced, we are finding that when clauses are buried as "take it or leave it" agreements, buried in the fine print, and where one side has more substantial bargaining power and sophistication, these courts are granting them closer scrutiny.

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August 5, 2014

NC Court of Appeals Halts Case for Finding of Contributory Negligence

The North Carolina Court of Appeals recently affirmed a summary judgment against a plaintiff who claimed a church was negligent in the death of a parishioner who volunteered to cut down a tree limb, and died in the process.
The primary grounds on which the court affirmed the earlier ruling in McKinney v. Greater Gethsemane African Methodist Episcopal Zion Church of Charlotte was based on the principle of contributory negligence. Our Charlotte injury attorneys know that proving the plaintiff did not contribute to the injury is especially critical in North Carolina because we live in one of the few states that adheres to the strict doctrine of contributory negligence.

Pursuant to this theory, if a plaintiff or injured party is in any way negligent or culpable for the accident, he or she may not collect any damages. This is contrary to the model followed by the majority of states, which allows an apportionment of damages, based on the percentage of contributory negligence.

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August 3, 2014

Pool Drowning Litigation Gives Rise to Claims of Multiple Occurrences

A recently-released report by the North Carolina Department of Health and Human Services reveals that between 2008 and 2012, there were 138 children who died as a result of unintentional drowning in this state. It accounted for 13 percent of all child deaths in the state, making it the No. 3 cause of death for children in this time frame (preceded by motor vehicle crashes, which accounted for half of all child deaths). pool2.jpg

Our Charlotte swimming pool accident attorneys know the largest number of these incidents occur in the summer. The same is generally true across the country, when more pools are open, accessible and in use.

Adequate safety measures and supervision of children in and around the pool at all times is critical. The recent case of Fellowship of Christian Athletes v. Ironshore Specialty Ins. shows what can happen when adequate supervision is not employed. Here, apparent negligence by camp counselors and organizers resulted in the death of not one but two campers who attended a pool party and were left unattended in the pool area, despite not having the ability to swim.

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July 29, 2014

Pickett v. Cortese: Medical Malpractice and the State Review Board

Our Winston-Salem personal injury lawyers know medical malpractice cases can result in complex litigation.

doctor1.jpgPickett v. Cortese, a medical malpractice case from the state of Montana, involved a plaintiff who had her appendix punctured during what doctor's refer to as an ECRP procedure. ECRP is an abbreviation for endoscopic retrograde cholangiopancreatography, which involves placing the patient under anesthesia and inserting an endoscope/fluoroscope into the patient's mouth, thus allowing doctors to diagnose and treat conditions of the common bile duct.

In Pickett, the plaintiff alleged that the defendant was negligent in perforating her intestine, failing to discover the perforation quick enough, and not informing her that there may have been less risky alternatives to the ECRP procedure that caused her to suffer the personal injury.

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July 23, 2014

Phelps v. Hebert: Wrongful Death Actions and the Duty of Care

Our South Carolina attorneys who handle wrongful death lawsuits understand that there may be other parties responsible for a tragic loss of life than just the party who personally performed the negligent act or omission.

quad-1109243-m.jpgPhelps v. Herbert is a wrongful death case filed under a theory of negligence that was argued before the Supreme Court of Rhode Island. In Phelps, at a family's high school graduation party, a friend of the graduate showed up with a case of beer as a graduation gift. Later that evening, the friend went home to get his new All Terrain Vehicle (ATV) and returned to the party. A friend asked for a ride on the ATV. The driver offered her a helmet to wear, but she declined. He drove down the road and then returned to the house.

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