Recently in Wrongful Death Category

October 16, 2014

Temple v. Mary Washington Hospital: On Discovery Motions in Medical Malpractice Cases


Temple v. Mary Washington Hospital, a case from the Supreme Court of Virginia, involved a medical malpractice case filed in the name of decedent. According to court records, decedent went to defendant's emergency room complaining of chest pain and shortness of breath. Four hours after getting to the hospital, he was deceased.

ekg-293359-m.jpgAfter filing the personal injury case, plaintiff, through counsel, requested certain discovery from defendant. Included in these requests were copies of defendant's policies and procedure related to how a patient in decedent's condition should be treated by hospital staff. Defendant responded to plaintiff's requests for production of documents, claiming these documents were not relevant to the lawsuit and were privileged documents.

Plaintiff filed a motion to compel discovery, requesting that the trial judge order defendant to produce the requested documents. The trial judge found that these documents were not relevant, as they would not lead to discoverable evidence, agreed that they were privileged, and denied the motion.

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September 30, 2014

Davis v. Brickman Landscaping - Fire Death Negligence Standard of Proof High


The death of two children in a horrific hotel fire sparked a civil lawsuit brought by their parents, after they learned a storage closet beneath the stairwell lacked a fire sprinkler, as is required under state fire codes.
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Our Spartanburg wrongful death attorneys know in negligence actions where municipal building and fire codes may have been breached, the attorney handling the case must have extensive experience. Statutes regarding these matters can be convoluted, and when it's alleged someone died as a result of a violation, there is a lot at stake.

In Davis v. Brickman Landscaping, Ltd., the primary question before the New Jersey Supreme Court was whether plaintiff's expert witness testimony was adequate in showing the defendant, a private company that employed fire sprinkler inspectors, breached the applicable standard of care in carrying out its duties. Because of the complexity of state and local fire codes, an expert witness was required in the case, and the one produced by plaintiff reportedly failed to adequately attest to the alleged breach of industry standards. Therefore, dismissal of the claim was upheld.

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September 28, 2014

Gregory v. One Republic Home Protection - Wrongful Death Claim Denied


The verdict favoring a home warranty company, sued for wrongful death by the mother of a Greensboro man who died of carbon monoxide poisoning in his home in 2008, has been upheld by the North Carolina Court of Appeals.

The mother/plaintiff alleged the warranty company was negligent in hiring a heating/cooling company with a poor business quality record. The firm had been on probation by the North Carolina Board of smokealarm.jpgExaminers of Plumbing, Heating and Fire Sprinkler Contractors. Later, the same company was the target of a complaint alleging incompetence that nearly resulted in a customer's new home catching fire.

Our Greensboro wrongful death lawyers understand that while plaintiff sued on a host of negligence theories, including negligent retention and vicarious liability, the two at issue upon appeal were two claims dismissed prior to trial - Unfair and Deceptive Trade Practice and breach of implied warranty. The appellate court ultimately indicated the directed verdict for defendant on the UDTP claim was proper, and the plaintiff failed to properly preserve the grant of directed verdict on the breach of implied warranty claim.

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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.
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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. § 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 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.
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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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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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July 7, 2014

CDC: One in Ten Working-Adult Deaths Related to Excessive Drinking


While most of us realize the dangers of drinking and driving or long-term alcohol use, we many not fully grasp the risk of excessive alcohol consumption. According to a recent report published by the Centers for Disease Control and Prevention and published in Preventing Chronic Disease, alcohol use accounts for 1 in 10 deaths among working adults. Researchers reviewed death cases among working aged adults between 24 and 64, finding that approximately 88,000 deaths between 2006 and 2010 involved the excessive use of alcohol.

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According to the report, many of the deaths did correspond to long-term alcohol abuse, including breast cancer, liver disease, and heart disease, but alcohol also triggered accidental and sudden death related to alcohol poisoning, motor vehicle collisions and violence. Our Charlotte personal injury attorneys are committed to providing strategic and experienced representation to victims of serious accidents and injury. In the event of an accidental death related to alcohol, including boating or motor vehicle collisions, our attorneys will perform an immediate and thorough investigation to identify the cause of the accident and hold responsible individuals and entities accountable.

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June 16, 2014

Alldredge v. Good Samaritan Home, Inc.: Tolling the Statute of Limitations in a Wrongful Death Action


One of the most important questions Asheville wrongful death attorneys have is when a cause of action arose. In other words, when did the injury or accident occur? This question is important because all civil actions, including those for wrongful death under a theory of negligence, must be filed within the applicable statute of limitations.

The specific statute of limitations varies by state and by type of case, but essentially these calendar.jpgstatutes limit the amount of time you have to file a case against somebody. In North Carolina, pursuant to Article 5 § 1-53 of the General Statutes, wrongful death actions have a two-year statute of limitations. This two-year period starts running at the time of death. In the North Carolina General Statutes there are several different statutes of limitations depending on the type of case and even the type of injury.

In Alldredge v. Good Samaritan Home, Inc., the Indiana Supreme Court dealt with the issue of what happens if the cause of the accident is not discovered during the statute of limitation. In Alldredge, the plaintiff's personal injury lawyer discovered that Venita Hargis, a nursing home patient, had died after being attacked by another resident, and not as a result of falling as claimed by the nursing home. In our legal system, you generally cannot sue for something that is truly an accident where nobody is at fault. The injury or harm must be caused by someone's negligent or intentional actions. In Alldredge, the court found that not only did the victim die from being attacked by another patient, but the defendant nursing home purposefully and fraudulently covered or "concealed" the real cause of Ms. Hargis' death. Even though it was not discovered during the two-year statute of limitations, the court said the plaintiff could still bring an action because the defendant's fraudulent concealment "tolled" the statute of limitation.

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March 26, 2014

Non-Economic Damage Cap Deemed Unconstitutional by Another State Supreme Court


Florida has recently joined seven other states in finding that non-economic damage caps in medical malpractice cases are unconstitutional. The case, Estate of McCall v. United States,, stemmed from the death of a young woman who died shortly after childbirth.
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The finding is important because, while North Carolina has had non-economic damage caps in place since 2001, there has yet to be a constitutional challenge on the issue here. The more states follow this precedent, the more likely we are to see a similar outcome.

Charlotte personal injury lawyers know that part of the reason we have non-economic damage caps stems from a major push by health care lobbyists in the late 1990s and early 2000s for tort reform. Doctors would be driven from states in droves, they said, unless legislators could enact reforms to bring the cost of medical malpractice insurance down. One of the best ways to do this, they asserted, was to cap the amount of damages plaintiffs could collect for serious injuries or wrongful death.

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March 22, 2014

Timely Filing of Carolina Wrongful Death Lawsuits


Generally in North Carolina, filing an Asheville wrongful death lawsuit must occur within two years of the date of death. This is called the statute of limitations, and the courts require strict adherence to time limits. A case could be tossed for filing even one day too late.
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There are, however, exceptions. There are a few instances under which the length of time could be tolled (paused and thus lengthened). Then there are some circumstances wherein the date of injury occurs much earlier than the date of death, and here, the clock on that statute of limitations may start ticking at the time of injury.

This is why it's so imperative to meet as soon as possible with an attorney if you are contemplating filing a case. Wrongful death lawsuits are complex, and even before your attorney can file, he or she will likely want to:


  • Research the case;

  • Gather all necessary documents and records;

  • Evaluate the potential strengths and weaknesses of the case;

  • Determine specifically what legal claims of negligence can and should be made;

  • Identify all parties to be sued;

  • Select the proper court in which to file.

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February 25, 2014

North Carolina Construction Fall Results in Death


A 30-year-old worker was killed in a North Carolina construction accident, after suffering a five-story fall from scaffolding.
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The incident occurred in Raleigh, about an hour outside of Greensboro, and was the second construction accident in that city in just two days.

News reports of the incident, citing Department of Labor sources, indicate that the company that had been overseeing the site was cited two times in recent years for safety violations involving scaffolding and worker fall protections.

Our Greensboro wrongful death attorneys know that this is so often the case when there is a death or catastrophic injury stemming from a workplace accident. While many companies do try their best to adhere to proper safety protocol, we see the same offenders violating these laws again and again.

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November 5, 2013

$10 Million Lawsuit Against U.S. Army Day Care for Infant Death


Parents trust that day care providers are attending to children and keeping them safe from harm. In addition to normal care needs, including water, food and security, day care providers have a duty to act reasonably and ensure appropriate supervision. This month, a North Carolina couple filed a $10 million dollar wrongful death lawsuit against the U.S. government after their infant child suffocated at a Fort Bragg day care in March 2012.

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Wrongful death suits are an available legal action for anyone who has lost a child, spouse, or parent due to neglect, recklessness, or intent. Our Charlotte wrongful death attorneys are experienced in investigating fatalities and dedicated to protecting the rights of families who have suffered a loss. We are committed to helping victims as well as raising awareness to prevent future accidents and injuries.

According to the lawsuit
, the parents are filing claims of wrongful death and negligent infliction of emotional distress after they lost their 4-month-old son. The parents were distraught after they also discovered the care attendant would not face any criminal charges for the death. Whether a death was caused by intent, recklessness or negligence, civil charges can still be filed even if the defendant is not being held criminally liable. While a prosecutor must prove "beyond a reasonable doubt," a civil plaintiff must only prove by "preponderance of the evidence," which can be easier to establish liability.

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August 20, 2013

Checklist to Keep Teens Safe This Sports Season


Teen athletes face a number of dangers every time they go to practice or have a game. In addition to regular injuries that could be caused by impact or repetitive stress, traumatic injuries could also cause serious or permanent damage. Despite the benefits of getting good exercise and learning teamwork, parents, educators, and teens should be aware of the risks and be prepared before starting a new school and sports season.

While there are some accidents that aren't preventable, taking a proactive and knowledgeable approach to this year's sports season could prevent serious injuries, and death. Our Asheville personal injury lawyers are experienced with the investigation and representation of teen sports accidents. We are dedicated to sports and team safety and helping to prevent injuries, including traumatic brain injury.

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Teen athletes are vulnerable to joint injury, head and neck injury, heart trouble, and heat stroke. In a recent report by NPR, sports medicine doctors and other professionals offer the following checklist to keep your teen athletes healthy and safe.

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March 3, 2013

Carolina Nursing Home Neglect: Nurse Lets Patient Die


Nursing home abuse and neglect is a major problem throughout the Carolinas and throughout the United States. One recent tragic case making headlines, however, is an egregious example of a retirement community that failed to provide even the most basic of assistance to a dying 87-year-old resident. The incident occurred when a nurse refused to provide CPR to a woman in an independent living community, resulting in the woman's death.

Our Charlotte injury attorneys believe that this tragic incident should be a wake up call to every single person entering a nursing home or admitting a parent or relative to an assisted or independent living community. The nurse and facility argue that they followed protocol as outlined in the nursing home contract. While it remains to be seen whether any action will be taken in civil or criminal court as a result of the events, this tragic incident is a key reminder that you must always read and understand your contract before entering into a retirement or elder living environment. Further, it is also a key reminder that you need to choose your living environment very carefully.

Nurse Refuses to Provide CPR To Patient
An article in USA Today published on March 4, 2013, relayed information about the incident in the independent living home that has been making nationwide headlines. According to the USA Today article, a nurse called 911 when an 87-year-old resident was in distress. The Dispatcher begged the nurse to perform CPR on the dying woman and asked whether there was anyone in the facility that was willing to help the woman and not let her die.

In response to the question, the nurse said "Um, not at this time." The dispatcher reminded the nurse that "it's a human being," but to no avail. On a tape of the call, the nurse could be heard telling someone else that the dispatcher was yelling at her and that she was not going to make the call on whether to perform CPR or not. Yet, no one came to the aid of the dying woman and the 87-year-old was declared dead at the hospital later that day.

While there has been a widespread public outcry as the tape was played on media stations and made national news, USA Today reported that the executive director of the assisted living facility defended the actions of the nurse because the nurse had followed policy.

The policy specified that emergency personnel would be called in during an emergency and that someone would wait with the patient in distress until help came. The independent living community had a contract in place that outlined the policy, and the director said that residents were informed of the no CPR rule when they moved in. At the adjacent assisted living and skilled nursing facilities, no such policy was in place.

USA Today reports that an investigation is underway by local police, as well as an internal investigation of the nursing home. According to their article, the daughter of the woman who died said she was not dissatisfied with the handling of the case since there was a do not resuscitate order on file. However, if the surviving family members had been displeased, then they might have been able to file a claim for nursing home neglect.

Of course, the existence of the contract and policy might have absolved the nurse and assisted living facility of the obligation to render aid, especially since there is no general duty to provide assistance to others under the law. However, a solid argument could also be made that it was grossly negligent to stand by and watch someone die who was under the care of the facility when simply performing CPR might have saved a life.

Without a lawsuit, the impact of the contract on liability for negligence in the death is something that an only be speculated about. It is clear, however, that this incident should serve as a very important reminder to ALWAYS check your nursing home or assisted living community paperwork before moving in so you know what your guaranteed rights are.... and aren't.

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November 10, 2012

Graves v. CAS Medical Systems - Expert Witnesses & Proper Trial Preparation


Building a case for the courtroom requires a Carolina personal injury or wrongful death attorney with the knowledge, experience and resources necessary to win adequate compensation for victims and families.

When one of those ingredients is missing, the at-fault or negligent party too often prevails. 824136_empty_crib.jpg

The recent South Carolina Supreme Court ruling in Graves v. CAS Medical Systems highlights what can happen if your expert witnesses are unprepared or unqualified.

India Graves was one of triplets born prematurely. After six weeks in the hospital, all three girls were sent home with their parents and a CAS monitor to alert parents to any breathing or cardiac issues during the night. The equipment was also outfitted by CAS with a microphone system that tracked whether or not the system's alarm sounded.

On the night of April 11, India was attached to the monitor when she was put in her bassinet about 2 a.m. When mom returned at 4 a.m., she found her sisters were fine but India was unresponsive. An autopsy reported the cause of death as Sudden Infant Death Syndrome.

The Graves filed a suit citing negligence, breach of duty and strict liability due to a design defect involving the computer code. However, the circuit court granted summary judgment to CAS after granting a motion to exclude all four of Graves' expert witnesses.

While three software engineers were prepared to testify that a glitch in computer code was likely responsible, the court noted none of the three had spent significant time with one of the monitors. And all three agreed a hardware defect was not to blame. The fourth expert in the Graves' case contended the infant likely could have been saved with timely medical attention. However, that witness was not an expert in SIDs.

We can only speak in generalities because we do not know the specifics of the efforts to prepare this case for the courtroom. However, sometimes a firm lacks the resources to hire the leading experts, or to pay them to spend time examining a machine for defects. Sometimes just paying for testimony stretches a firm's resources. In other cases, a firm may accept a case hoping to get a settlement.

And in still other cases a law firm may divide its attention among several types of law, including wrongful death, criminal defense and divorce. Often, these firms do not have the working relationships and professional contacts necessary to build a strong case using expert witnesses.

The court attempts to vett expert testimony, and producing witnesses who lack the knowledge or experience to qualify as experts can be disastrous. As can testimony of questionable scientific validity or value.

In this case, CAS argued the backup system recorded the alarm sounding during more than 30 documented respiratory or cardiac episodes suffered by India in the early morning hours. And it moved to exclude all witnesses as failing to meet the legal requirements to give scientific testimony under State v. Council, 335 S.C. 1, 515 S.E.2d 508 (1999). The Graves filed a Rule 59(e), SCRCP motion, arguing for a chance to proceed based on circumstantial evidence even without the expert testimony. The court denied the motion and granted summary judgment on behalf of CAS.

Summary judgement is a judgment against one party issued by the court without a full trial, frequently because there are no material factual issues left for a jury to decide. In other words, the plaintiff has failed to prove his case.

As it happens, the court also reports the appeal was improperly filed, which caused the Graves to forfeit several appeal issues the court might have considered.

Choosing a law firm carefully in the aftermath of serious or fatal injury is critical when it comes to securing the damages you and your family deserve as you work toward recovery.

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