Be Aware of These Wrongful Death Laws on Stillbirth Cases

All states cover wrongful death statutes that permit a plaintiff to receive a monetary recovery for a close relative’s death. Also, some states have wrongful death laws that provide parents with the right to get damages for a stillborn infant’s death.

This article talks about how wrongful death cases for stillborn infants work at large.

Medical malpractice

Wrongful Death Claim

A claim for wrongful death is based according to a statute, a few versions of which remain in all states, which allows the relatives or heirs of a deceased individual to receive compensation when the death resulting from the defendant’s negligent or wrongful act.

Before making the survivor and wrongful death statutes in the 1800s, the heirs and family of an individual killed by another are deliberate or negligent act couldn’t sue for damages as the tort (legal claim) could only be filed by the harmed person – essentially, the claim expired once the plaintiff died.

The survivor and wrongful death laws were made by state legislatures to pay close heirs and family members for their family member’s death, including compensation for lost monetary support, the pain and suffering of the decedent before death, funeral costs and other damages based on the case context and the statute.

The remedies offered by wrongful death laws are only accessible if the defendant negligently or intentionally caused the death.

In the case of a stillborn infant, it isn’t always the medical provider’s fault. Somehow the provider must’ve been liable for the stillbirth. Keep in mind that numerous states don’t permit medical malpractice claims for neglectful stillbirth, but do apply such statute to deliberately or negligently caused stillbirths.

And in those states, usually, the plaintiff will have to follow all the litigation procedures of a medical malpractice claim to establish liability prior to the wrongful death statute can be applied.

Now, if a defendant caused the stillbirth beyond the medical setting, for instance, a car crash, then that defendant should actually be proven responsible for negligence prior to the wrongful death lawyer will be applied.

Medical Malpractice
Medical Malpractice

Not All States Utilize Wrongful Death Laws to Stillborn Fetuses

Most states make use of the wrongful death law to stillborn fetuses, yet many don’t. And in those states that don’t, the basis under the statute is that the fetus isn’t a “person.” Loads of those similar states, on the other hand, do permit other kinds of cases based according to a stillbirth, for instance, negligent infliction of distress.

Many of those similar states, on the other hand, do permit other kinds of cases based according to a stillbirth, for instance, negligent infliction of distress.

In Some States, The Fetus Must’ve Been Viable (Moving in the Womb)

In most states that use the wrongful death law to stillborn fetuses, the fetus must’ve been viable the moment that caused the stillbirth. The term “viable” essentially means the infant may survive out of the womb by itself, or with medical assistance. At present, the earliest stage at which a fetus is viable is approximately 24 weeks. If the careless act that ultimately caused the stillbirth was done before viability, the wrongful death law wouldn’t apply.

At present, the earliest stage at which a fetus is viable is approximately 24 weeks. If the careless act that ultimately caused the stillbirth was done before viability, the wrongful death law wouldn’t apply.

Simple Steps Towards Proving a Slip and Fall Injury Claim

Sometimes, it’s hard to prove who’s liable for slip and falls. Annually, thousands of people are harmed, many severely, from slipping or falling on stairs, a floor, or other surfaces that are becoming dangerous or slick.

To succeed in a slip and fall accident case, you should be able to establish the liability of the property owner. Here’s What You Must Prove to Win a Slip and Fall Injury Claim by AllLaw to explain it further.

Theories of Liability in Slip and Fall Claims

In order to hold another party responsible for injuries suffered in a slip and fall accident, an injured person must typically prove one of the following:

  • A property owner (or their employee) should have recognized a dangerous condition (i.e. a pothole or an uneven walking surface) and removed or repaired the potential danger, but did not. The key question here is whether a reasonable person would have identified the condition as hazardous, and whether the defendant had ample opportunity to remedy the situation before the accident occurred. OR
  • A property owner (or their employee) actually caused the dangerous condition leading to the slip and fall accident — by leaving a hazardous obstacle in a walking path, for example — and it was reasonably foreseeable that someone would trip and fall due to the condition.
Automobile accident
Automobile accident case.

Proving Fault in Slip and Fall Accidents

There are times when it’s difficult to prove who’s responsible for a slip and fall accident. Many people every year are harmed, loads seriously, from injured on a floor or other surface that’s become dangerous. Even the ground that’s become rough to a dangerous level can cause serious injuries. On the other hand, sometimes it could be hard to prove that the property owner is liable for a slip and fall.

Could the Owner of the Property Have Avoided the Accident?

If you or somebody you know has been harmed in a slip and fall, then it may be alluring to seek out justice via a lawsuit instantly. But first, think about this question: “If the owner of the property was more careful, then could the mishap have been prevented?”

For instance, even though a leaking roof causes a slick condition that you could slip and fall on, the owner of the property may not be liable for the injuries if a drainage grate in the floor was present intended to limit such conditions.

Additionally, property owners won’t constantly be liable for things that a rational person would’ve prevented, for example, tripping over a surface that would usually be located in that position (such as a rake on a lawn during the fall).

Every individual has a liability to know their surroundings as well as make efforts to prevent dangerous conditions.

Duty to Maintain A Reasonably Safe Condition

On the other hand, this isn’t to say that owners of properties are never held liable for others’ injuries in a slip and fall. Though there isn’t a cut-and-dried rule, the owners still should take reasonable measures to make certain that the property does not present dangerous conditions that’d result in an individual to slip and fall.

But this reasonableness is frequently balanced against such care that the individual that slipped and fell should’ve used. In a slip and fall accident, the following are a few guidelines that insurance companies and courts utilize when determining fault.

Slip and Fall Accidents: Proving Fault by Nolo has info on how to determine liability in a slip and fall case:

To be legally responsible for the injuries you suffered from slipping or tripping and falling on someone else’s property, one of the following must be true:

  • The owner of the premises or an employee must have caused the spill, worn or torn spot, or other slippery or dangerous surface or item to be underfoot.
  • The owner of the premises or an employee must have known of the dangerous surface but done nothing about it.
  • The owner of the premises or an employee should have known of the dangerous surface because a “reasonable” person taking care of the property would have discovered and removed or repaired it.

To aid you with this case, Proving Fault in Slip and Fall Accidents by FindLaw features a few questions that you or your lawyer will want to talk about before starting a claim.

Liability

If you’ve been harmed in a slip and fall on the property of someone else due to a dangerous condition, then you’ll likely have to be able to demonstrate one of the following to succeed in a case for the injuries you go:

  • Either the owner of the property or his worker should’ve known of the risky condition as another, “reasonable” individual in his position would’ve known about the risky condition and removed or fixed it.
  • Either the owner of the property or his worker is aware of the risky condition but didn’t remove or fix it.
  • Either the owner of the property or his worker caused the risky condition (broken flooring, spill, etc.).

Because loads of property owners are generally pretty good regarding the upkeep on their establishment, the first case is most frequently the one that’s litigated in a slip and fall. On the other hand, the first case is also the most complicated to prove due to the phrase “should have known.” Following the presentation of your arguments and evidence, it’ll be up to the jury or judge to decide whether or not the property owner should’ve known about the dangerous condition that resulted in you to fall.

How long had the defect been present before your accident? In other words, if the leaking roof over the stairwell had been leaking for the past three months, then it was less reasonable for the owner to allow the leak to continue than if the leak had just started the night before and the landlord was only waiting for the rain to stop in order to fix it.

What kinds of daily cleaning activities does the property owner engage in? If the property owner claims that he or she inspects the property daily, what kind of proof can he or she show to support this claim?

If your slip and fall accident involved tripping over something that was left on the floor or in another place where you tripped on it, was there a legitimate reason for that object to be there?

Learn more about proving liability in a slip and fall case by clicking on the articles above.

The Shocking Truth About Negligence Law

Negligence

Negligence is the term used when there’s a failure to utilized reasonable care that caused injury to another party. There are two forms of negligence under the negligence law. The first form—an individual does something that a rational individual wouldn’t do. The second form—an individual is unable to take action that a rational individual would take to stop harm. Both negligence forms can cause a negligence case filed against the liable party.

Negligence Law

Negligence law says that an individual or an organization is liable when they carelessly harmed others.

If the harmed party can establish that the liable person failed to employ care that a rational person would have, or that the law calls for the protection of other individuals or those interests of other individuals, then the injured party could be entitled to payment. If an injured individual has suffered because of negligent behavior, then that person has the right to be reimbursed for emotional or physical injury, and harm to financial status or property.

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Negligence is a legal term used to get compensation for injuries and accidents. Negligence is a form of tort (a legal obligation between parties even though there’s no contract among those parties), as well as a civil wrong, but can be utilized in criminal law as well. It can be categorized into the following:

Ordinary negligence involves that the liable party has demonstrated a lack of ordinary diligence; Slight ordinary negligence indicates the liable party has demonstrated a lack of slight diligence; Gross negligence implies the liable party has demonstrated a lack of slight diligence.

The majority of negligent acts are accidental, but others are considered as reckless, malicious, or willful. Additionally, judgments that are riskily careless, like a defective building design, may be deemed as an act of negligence.

If a faulty product is deemed unjustly dangerous (defective seat belt buckles), then the manufacturer could be liable, even if the defective design was accidental. But there’s no law wherein the manufacturer is to make an “accident-proof” product. The manufacturer is obliged to create a product that’s free from faulty and unreasonably risky conditions.

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Negligence Case

The following are four vital elements to a negligence case that should be established:

  • The defendant owed a duty (to the plaintiff or general public)
  • The defendant breached that duty
  • The defendant’s breach caused the plaintiff’s injury
  • The injury to the plaintiff was foreseeable to a rational person.

For instance, a vehicle manufacturer has an important duty to make a vehicle that’s free from irrationally dangerous faults. By producing a vehicle with faulty brakes, the vehicle manufacturer has breached that duty. Also, it’s foreseeable that a vehicle with brakes that work improperly will be involved in an accident and people may be harmed in that accident.

It’s crucial to note that though the negligence should be a cause of the plaintiff’s injury, it doesn’t need to be the one factor. In the example above, if the individual driving the vehicle with faulty brakes was over speeding and collided with another car, the individual in that other car could, possibly, sue both the car driver and the manufacturer of the car for the accident.

 

Calculating Damages in a Personal Injury Case

Calculating the damages can be very intricate, and frequently, the parties use expert witnesses, like actuaries and economists, to give their assessments on the proper costs of damages. These calculations take in not just benefits and income earned outside the home, yet the financial value of care and services provided as well within the home by a homemaker parent (cooking, laundry, child care, house maintenance and cleaning, education, shopping, transportation, and medical care).

Time Limits

Each state sets particular time limits, known as the “statute of limitations,” on filing wrongful death cases. The rule is that a case should be filed in two years of the day of the deed that resulted in the death of the victim.

However, in particular cases, the time limits or statute of limitations could be as short as a year. Certain rules apply to people under 18 (minors typically have two years to file a case) and individuals with mental disabilities and in cases that involve intentional acts or fraud.

personal injury lawyer
Lawyer talking to the jury

In numerous states, the time limits do not start ticking until the injury is discovered (occasionally known as the “date of discovery”). E.g., if the failure of a doctor to diagnose cancer isn’t discovered for years following the error (as cancer lays inactive), the time limits may not begin until the patient discovers cancer.

A few states put a higher limit on the discovery date in certain kinds of cases, like construction, medical malpractice, product liability, as well as legal malpractice claims. For instance, a state may state that a survivor could file a case in two years from the discovery date of harm, but not over five years from the actual harm infliction.

Getting Help

As wrongful death actions frequently involve complex fields of the law (such as medical malpractice) and may cause huge damage awards, it’s frequently wise to take the services, or at least talk to, an attorney.

The Natural Law and Political Law throughout the World

Natural law assumes that there is a body of law setting a complete and immutable standard of judgment and that knowledge of this body of law can be obtained by the rational contemplation of by consulting a divine revelation.

A recent theory of natural law, by Rudolf Stammler, has sacrificed immutability and declared that natural law might have a changing content. Other doctrines have set side by side with a natural law, grounded in reason and a permanent sense of justice, another law arrived at by “convention,” that is, by a formal set of rules of conduct based on convenience or utility.

This latter body, known as “positive” law, is for enforcing officials, as much entitled to be called law as that which is derived from reason and the nature of man, although the latter is of greater moral authority.

The conception of law a body of formal rules that can be drawn up and learned, like the axioms or “common notions” of Euclidean geometry, is of course quite incorrect. But it is a fact that in civilized countries, especially in those that derive their civilization from the Mediterranean area, there are a great many rules of conduct which, whenever the questioned is presented, the courts would declare to be legal rules and which are almost the same for nearly all the areas of that civilization.

the lawyer's table
the lawyer’s table

These rules concern the graver crimes of violence and fraud, whether directed against person or property. In the Western group, there is also a general agreement among the laws of every country in the organization of the family.

For example, monogamy is the only valid form of marriage, and the duty of support of minor children, that is, children below eighteen or twenty-one years old, is imposed on the parents. In Asia, and Africa, polygamy is generally lawful, except that economic conditions usually, but not always, make the prevailing family from monogamous, despite the legality of polygamy.

In both areas, again, private properly is a legal institution except in the Soviet Union and in those countries which have come under its influence or direct control. But even in these so-called communist countries, private property in some goods is recognized and is protected by law.

Neither monogamy nor the institution or private property can be said to be inescapably derived from the nature of man. But the wide acceptance of both by so large a part of civilized mankind make it possible to speak of a general law which, with its rejection of acts of violence and fraud, can form the nucleus of comparable systems in nations which otherwise show a great diversity of customs.

While a “general law” of civilized man is a term that has only the content just described, it may be seen that large areas can be described terms of “countries of the civil law” and “countries of the common law.”

Between them, they include the majority of civilized nations.

A General View on Law – The Definition of the Word

Since the word “law” is used in many different senses, it is important to indicate that in this article it will be used in the sense which the word is commonly understood in speaking and writing.

Law, in this sense, consists of a system of social rules which, in the communities that in varying degrees share Western civilization, has become the special business of institutions called courts, and is enforced by officials typified in England and the United States by sheriffs and policemen, and by similar officials elsewhere.

In these communities, the institutions and officials that deal with the law have this as their exclusive business. In other civilized communities, a clean-cut differentiation is not always made. The institutions and officials that most resemble the Anglo-American courts are enforcing officials often have other functions as well.

Legal books
Legal books

They sometimes give moral and religious guidance and do so with authority. Furthermore, in some communities of a high degree of culture and in nearly all primitive communities, it is impossible to tell whether a given social rule is one of manner, or morals, of religion, or of law, or of some amalgam or admixture of all four.

Attention must be called to the other senses in which “law” is used in English and which are here excluded. Scientific “laws” like the “law of gravitation” or Newton’s “laws of motion,” are, of course, not social regulations at all.

They are merely observed sequences of natural phenomena and it is only by an easily abused metaphor that the world “law” is applied to them.

And despite the fact that morals are religion are, as have been stated, fused with law proper in many communities, we shall have to distinguish, as far as Europe and America are concerned, the law which needs courts and policemen from the “moral law,” which depends on the approval of the individual conscience.

We must also distinguish the law here discussed from the “law of God” as it is expounded by theologians, although in our system as well as in less differentiated ones, the moral law and the divine law play a real part in determining what law is.

The system of social rules to which the term “law” is here limited is subject to constant modification since it must change in every particular society as the society itself changes.

the court room
the court room

All over the world and particularly in Europe and America, this has often been accomplished by the conscious activity of official persons called “legislators,” and we nearly always find the task of legislating, that is, of making changes in the laws, entrusted to a corporately organized section of the government which has various names – parliaments, congress, Reichstag, legislature, council, assembly, diet, or some similar designation.

In English, when the term “law” is used with the indefinite article (“a law”) or in the plural (“laws”), those legislative enactments are generally intended which technically are called “statutes.” When, however, the terms “the law” or “law” without an article are used, the entire system, which includes statutes and a great deal of material besides, is denoted.

In other European languages the same distinction is made, except that the etymological equivalent of “law” is used almost exclusively for “statute,” as is the German Gesetz; and the word which translates terms like “the law” or “law” is some derivative of the Latin word that means “right”.

When to Sue Nursing Homes for Negligence

It’s a hard decision to put someone you love in a nursing home, but sometimes, it is necessary. On the other hand, just because somebody has to be in such facility does not mean he or she needs to live in an abusive or depressing environment. If you loved one does have to live in a terrible nursing home, it is vital for you to know that there are options.

When Can You Sue a Nursing Home for Negligence? By All Law has some information about behaviours were in a nursing home abuse claim is applicable.

“What Behavior Can Lead To A Civil Lawsuit?

  • Failure to keep the premises reasonably safe and free of hazards (meaning dangers that the facility and its staff are aware of, and those they should be aware of through reasonable diligence). This includes everything from preventing slip and fall accidents to preventing one resident from attacking another.
  • Negligent hiring of an employee who ends up neglecting, abusing, or otherwise intentionally harming a patient. The failure to properly train and supervise employees may also come into play here.
  • Negligent supervision of residents who then fall, or otherwise injure themselves.
  • Failure to maintain adequate health and safety policies, including keeping clean and sanitary conditions in resident rooms and in common areas.
  • Failure to provide adequate medical treatment that is in line with the medical standard of care under the circumstances. When the provision of sub-standard medical care causes harm to a resident, there may be a case for medical malpractice against the nursing home facility and/or against a medical professional who treated the resident.”
auto accident case
police at the scene of the accident

Nursing Home Abuse Claims by Find Law features a couple of civil actions against nursing homes. Here’s some:

“Proving Duty and Breach of Duty: A plaintiff suing a nursing home may need to offer expert medical testimony about what is or is not a proper practice, treatment or procedure in a given situation, unless the lack of care or skill by the nursing home is so apparent that the average person would comprehend it based on his or her common knowledge and experience. For instance, if a nursing home administrator is alleged to have failed to exercise care with respect to maintaining the nursing home facility, that issue will likely not require expert testimony, whereas a nurse’s treatment of a patient’s condition might.

Statutory Standard of Care: Many states have enacted statutes or regulations that establish certain minimum standards of care for private nursing homes. Even if a nursing home can show it complied with minimum licensing standards, however, it may still be liable for a resident’s injuries. For these reasons, it is important to have an attorney research the applicable standard of care, licensing requirements, and other regulations in your area.”

Learn more about nursing home abuse as well as how to file a claim by clicking here.

 

Getting the Best Auto Accident Settlement

Negotiating an auto accident settlement takes a lot of documentation and much organization. In addition to that, patience is crucial as your negotiations may take a while to get you the auto accident settlement you deserve and desire. With enough preparation and planning, a few rational negotiation, and endurance, you’ll be able to work your way through arguments successfully and get the auto accident settlement you deserve.

Getting the Proper Auto Accident Settlement

Getting the proper auto accident settlement varies according to the value of the claim. Your claims’ value rests on a number of factors— location, severity, the extent of negligence, etc. In order to establish your claim, you need to document or record everything! Any details pertaining to the accident, any expenses that you have settled to obtain medical treatment, any property damage estimates or any other information that will support your account on the incident and the damages you’ve acquired. Make the dispute for the value of the claim you deserve accurately and clearly.

Note that the insurance company could value the claim settlement much less than you do, which means that you might have to discuss a fair settlement. The negotiations can go backward and forward until both parties reach an agreement. Therefore, do your best to remain patient while keeping an open mind regarding what you deem as a fair settlement. And while it’s crucial not to hasten things, you have to take control of the situation and be aware of everything that takes place! If you feel that time has wastefully elapsed between contacts, then you have to follow up on it. Take records along the way just in case you need to work on the other routes.

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An injury claim may involve a lot of documentation.

And if you think that the auto insurance adjuster is forcing you toward a settlement that you think is too low, do not continue negotiating with that individual. Go through the right authority levels and get the payment you deserve.

Talking with the Auto Accident Adjuster

While it’s crucial to be courteous and respectful, it’s also imperative to be shrewd and firm to negotiate a reasonable settlement with assistance from a lawyer. Auto insurance adjusters are hardwired to save their insurance company more cash and you need to be careful while working with them. Follow a few simple guidelines about what should be done and what shouldn’t be done when working with an auto insurance adjuster:

When reporting an auto accident, you must be polite and reasonable. Just stick to the accident’s facts and your efforts to recover; don’t allow your emotions to color your judgments. Do not give the impression that all is fine, even in casual talks. If the insurance adjuster inquiries include the injury you sustained, then tell them that you’re under a physician’s care; that you’ll keep the adjuster updated. Keep your talks rooted to the facts.

If the insurance adjuster requests for a documented statement, then graciously decline it. Rather, ask if the adjuster can personally meet with you. Don’t sign a printed statement and/or tape record an account over the telephone. Just verbally provide your side of the incident as it took place.

personal injury lawyer
personal injury lawyer on the job

Keep completely accurate records and documents of everything that surround the claim. Keep all letters and save emails. Note the times and dates of all phone talks. Request for any commitments or promises in writing. Take thorough notes of each talk. Keep your expense and bill receipts. Make duplicates of every file or document; gather them in a secure area and be attentive about your documentation all throughout the process.

If you’re requested to have an IME (independent medical examination) by the auto insurance adjuster, then courteously decline the request. You’re under no duty to undergo an IME. Just put the adjuster off until you’ve completed your treatment with your doctor. The adjuster can constantly request your records from your doctor.

Negotiating with the auto insurance adjuster can be frustrating sometimes, but with the appropriate claim value, the records to establish your value as well, patience and tenacity, you’ll be able to get the auto accident settlement you want and deserve. You can refer to an accident lawyer to get legal assistance or advice at any time.

Understanding Negligence

In personal injury cases, the victim, the person who acquired an injury, will depend on carelessness on the third party’s side. Essentially, this means that it’s though that the third party was liable for causing the injury.

On the other hand, negligence can be a rather complex concept to grasp. It is made up of elements – the duty of care and breach of duty.

A Personal Injury Case’ Three Elements

Duty of care

A legal reference that talks about the fact that each person needs to be liable for avoiding being the harm cause for somebody else. Personal injury cases, step one toward proving negligence, thus, is set the third party owe a duty of care in the particular instant that caused the injury to take place.

However, the second element is that the plaintiff should show that the defendant violated that duty by their conduction, be that inaction or action. If it’s set that duty of care is violated, there’s still no assurance that a personal injury claim will win.

This is the final thing that the plaintiff should show is that the breach of the duty of care, in fact, caused an injury. Let us look at this in detail.

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Duty of Care

Showing the breach of the duty of care can be carried out if the plaintiff demonstrates that the defendant’s actions or inaction failed to meet the standard of care that’s reasonably expected in these cases.

The big issue here is demonstrating what the standard of care truly is. In fact, the facts surrounding every case individually will simply determine this.

For instance, in a car traffic accident, the standard of care is rather clear. A car driver needs to be careful constantly and needs to consider things such as traffic conditions, weather, and visibility in running the vehicle.

Every state has traffic codes and rules available that obviously state the responsibility of a driver. In addition, it’ll highlight the kinds of behaviors prohibited, like driving while drunk or on drugs.

In a personal injury case involving vehicle accident, the plaintiff will need to show that the defendant wasn’t driving the way it ought to be. And the defendant could’ve been speeding, or have run a stop light, or got way too near to the back of the plaintiff’s vehicle, and all that.

However, other cases are a lot less clear cut. For example:

  • Somebody who slipped and fell in a particular establishment will need to show that the business didn’t remedy show dangers or risks on time, or prevented hazards away.
  • Somebody who’s the medical malpractice victim will need to show that the medical staff didn’t give you the proper standard of care (particularly, a medical professional witness is necessary for this).
  • Somebody who gets harmed because a defective product should demonstrate the seller, manufacturer and distributor didn’t uphold their duty to make products safe to utilize. There are exemptions, especially when it comes to the statute of limitations.

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Establishing Fault

Once you’ve established that there’s a duty of care, then you or you lawyer will then need to show how the duty of care was violated.

This is about showing that the accused party carried out something, or failed to carry out something, that’d mean that the conduct of that person was unreasonable. Basically, this is about demonstrating a fault in a case.

Utilizing the same vehicle accident example, it should be established that a certain traffic law was violated. This can be carried out via a CCTV footage, police report, testimony from the plaintiff, eyewitness testimony, an accident scene examination and the car itself.

There are instances in which how the plaintiff acted contributed to his or her own injury too. Meaning that there’s negligence on the defendant’s side but, to some degree, on the plaintiff’s part as well.

For example, again with the vehicle accident sample, if the defendant turned left abruptly, thereby resulting in the accident, yet the plaintiff was driving too fast as well, perhaps, the claim will need to be adjusted.

In these instances, insurers (or even the judge) will determine the fault percentage is on both parties. They will then calculate an award, but the responsibility percentage the plaintiff’s side will then be taken from this amount.

Comparative negligence is the term and the majority of states have implemented this.

But, some states also follow a different legal system, called the contributory negligence. And in these instances, if the plaintiff was negligent in the situation, even though it’s as little as one percent, the plaintiff may not be rewarded with damages at all.

Showing Harm

Ultimately, the plaintiff should show that an actual injury was suffered because breaching the duty of care. This is an extremely complicated matter, with various types of injuries causing different forms of awards.

Also, different states have various regulations and rules according to this. It’s best to talk to an attorney to get some knowledge of what you may reasonably have. On the other hand, you may study the formula for damages compensation, though this is just designed to provide you with a general notion of what should expect.

The Elements in a Malpractice Case

A medical malpractice claim involves several different elements. We will look into such elements in this post.

The Plaintiff

The plaintiff is the patient, an authorized person who follows up on behalf of the patient, or if the patient passed away, the administrator/executor of the estate of the patient. In legal terms, a plaintiff is an individual who brings a lawsuit against another within a court, the individual who creates the suit, or the individual who’s suing.

The defendant is the party being sued. In a malpractice case, it is the healthcare provider, which could be the nurse, doctor, therapist, etc. Even those individuals who follow orders could be legally responsible for neglectful acts.

The prevailing party is the one who succeeds in the lawsuit; it could be the defendant or plaintiff. If the defendant triumphs in the case, then the plaintiff won’t receive compensation.

Medical Malpractice
Medical Malpractice
  • The losing party is the one who’s beaten in the case.
  • The fact finder is the jury or judge.

The plaintiff needs to establish that the 4 fundamentals of the negligence tort existed so as to be successful in a malpractice claim:

  • A duty was owed by the hospital or healthcare provider.
  • A duty was violated – the hospital or healthcare provider didn’t follow the standard of care
  • The violation caused an injury – the violation was closely associated with the harm or injury

Damage – the patient endured significant damage, either emotional, physical or financial (pecuniary).

As it happens in every tort case, the legal representative or the plaintiff files a case in a law court. Prior to the beginning of the trial, the plaintiff and defendant need to share data by means of discovery; this could include documents requests, depositions, as well as interrogatories.

Both parties could, if they negotiate, reconcile out of the courtroom, and the case won’t proceed to trial. If they don’t agree, the lawsuit will go to trial.

The plaintiff needs to persuasively prove the negligence of the defendant. In nearly all trials, both the plaintiff and defendant will present professionals to clarify what standard care was needed. The jury should then mull over all the proof and choose which one is the most convincing.

A decision will be provided by the jury for the party that prevails. If it’s the plaintiff, then the judge will settle on damages.

The defeated party may proceed to a new court trial. In a few courts, if the plaintiff desires a bigger settlement, then they may go for “additur” (evaluate the damages and grant a bigger amount). If the defendant is not satisfied with a huge settlement, then they may go for “remittitur” (the court reduces the sum of damages). Either party could take a petition from the verdict.

Medical malpractice

Compensatory and Punitive Damages

The plaintiff could be awarded punitive and compensatory damages.

Compensatory damages could include financial damages, which includes life care expenses, lost earning capacity, as well as medical expenses. Losses in the past and future are usually assessed.

Compensatory damages could as well include non-financial damages, which evaluate the injury itself, psychological harm, and physical harm, for instance, losing one’s legs or vision, emotional distress, and extreme pain.

Punitive damages are only granted once the defendant is responsible for willful or malicious misconduct. This form of damages is a type of punishment; payment beyond actual damages.

The results of malpractice lawsuits on health care providers in the United States are widespread and could have a deep impact on the wellbeing of the medical professional, causing stress, professional displeasure, and emotional fatigue, a study showed.

The study (published in the JACS (Journal of the American College of Surgeons) on November 2011) found that cases were independently and strongly linked with career burnout and depression of the surgeon.

The authors stated that medical professionals who had experienced a recent malpractice case were more prone to be displeased with their professions, and would perhaps recommend their kids or others to pursue a non-medical/non-surgical career. How must doctors handle complaints?

The Medical Defence Union, the UK’s top medical defense association, provided tips for UK medical professionals on dealing with complaints:

  • Investigate each complaint methodically. Converse with the person complaining regarding what distresses them, and what results they’re expecting. Have a comprehensible plan prepared, and inform the plaintiff with regards to the investigation’s time frame, and when they must look forward to a response.
  • Invite the plaintiff(s) to speak to the personnel who are caught up in the complaint. Perhaps seek the assistance of a conciliator.
  • Take this seriously. Take measures as well to ensure they don’t happen again. Make certain your response is balanced and appropriate.
  • Remaining objective is very important. If possible, the reviewer must be directly caught up in the complaint, yet shouldn’t be the individual the plaintiff has an issue with. If fitting, look for an independent medical opinion (ensure the plaintiff is contented with that)
  • Apologize, be honest and open, and acknowledge errors as well as distress caused.
  • Organize a system which assesses and take lessons from plaintiffs. Make certain the plaintiff is informed in each action you’re taking.

If you are a victim of medical malpractice, know that there are different things you need to go through before you can submit your claim to a traditional court. Getting expert advice and support to an expert attorney would help a lot.