legal 1/26/21 – gtg

Asbestos Lawyers Who Are Specialized Lawyers For Special Cases

When you have certain cancer or another epidemic that is thought to be caused by asbestos, not just any lawyer will do. You must call an asbestos lawyer. After all, you wouldn’t call a defense attorney who usually handles murder cases if you’re going through a divorce, would you? Of course not, but you would go to a cancer specialist if you had cancer. The asbestos lawyer is the cancer specialist regarding the law. They know what you’ve been exposed to, that you’ve probably been lied to all these years, and they know how to get you every dime you deserve. Of course, sometimes this is just enough to cover your medical costs but it’s worth it if it can save your life. If nothing else, it will give your family the means to give you a proper funeral should the doctors be unable to cure the cancer that was caused by a substance once commonly used as insulation.

What Is Asbestos?

Asbestos was very commonly used in buildings and in houses as insulation. Mostly, it was used because it was good at insulating a building but also because it was a fire retardant. However, despite the fact that it was used prevalently in most buildings and houses, experts discovered that asbestos is the cause of some cancers and other ailments. People began dying in record numbers due to asbestos poisoning and, thus, the asbestos lawyers were born.

Asbestos lawyers took their place in society to defend those who were most affected by this horrible substance that obviously wasn’t tested very thoroughly before it was used in practically all buildings. A major overhaul took place in most structures all throughout the country, as building owners tried to rid their homes and offices of asbestos. However, this overhaul costs money. Doctor’s bills from resulting cancer also cost money and that’s where asbestos lawyers can help.

Asbestos lawyers will fight to get you everything you’re owed from being exposed to asbestos. If you think that you’ve been exposed to asbestos, or if you have cancer and you suspect that it was caused by asbestos poisoning, you should contact the nearest asbestos attorney in your area.

To find an asbestos lawyer in your area, open the phone book or do an internet search. Just realize that you’re not alone. Many people were unknowingly exposed to asbestos and there is help and support out there, you just have to find it. Seek out an asbestos lawyer today and fight for what is owed to you and your family.

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Divorce, overall, can be an overwhelming and stressful experience for everyone involved. Not only are the persons involved taking on drastic life changes, both emotionally and with circumstance, but then there’s also the need of finding one of the many best divorce lawyers out there to ensure the best possible future for the path that lies ahead.

When it comes to the process of divorce, making sure you’re properly prepared ahead of time can help to make things run a little more smoothly. Finding the right divorce attorney is, of course, part of this preparation, as they can help maintain all documents regarding the divorce for you, understand your rights, and can provide research and many other services that may be otherwise difficult to handle or perform on your own when life is busy all around you.

Areas of divorce such as the division of property, debt, and that of child custody can turn into complex and delicate situations and are things one must tread carefully with. When one takes on an attorney, they are better safeguarding themselves against the possibilities for errors or crucial points that those who are less experienced may otherwise miss, resulting in the possibility for poor results in the end. Things that may be relevant to the case, but are personal or sensitive in nature, may need to be discussed openly with a lawyer; therefore, it is always good to ensure that a client feels comfortable with the person representing them.

Finding the right attorney or law firm that specializes in the area of divorce may prove to be more in your favor, as this means there is a stronger likelihood that they will have the knowledge and better foresight than those who are less experienced in divorce. It’s a good idea to meet in person with the lawyer that a firm may have in mind for you, as you can generally pick the one you wish to go with. Finding an attorney who specializes in certain areas of divorce, should one area be more important to you, is also something to consider.

Meeting directly with a lawyer can help one determine whether or not they’re truly the right fit when it comes to how comfortable you are speaking to them and how well they communicate in turn. It is important to ask questions when screening a lawyer in order to accomplish this so that you can see just how well the pair of you communicate, and also to get a sense of how they may represent you when holding their own in court proceedings.

Knowing the fees involved with your case and of the lawyer is an important thing to know ahead of time, so as to avoid any surprises. Ask how much money will be required to be paid in advance, if there are any payment plans, and try to see if there can be an estimated price quote issued. Above all, when it comes to even the best divorce lawyers, it is important to make sure that you can afford their services.

When you have decided to divorce, it’s important to retain the best divorce lawyers to manage your case. Local divorce lawyers can preserve your financial and custody interests in a professional manner.

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You can require legal assistance for a wide variety of reasons. If they have to do with your family, then you need a certain type of lawyer. For issues of this type, you need a lawyer who specializes in Family Law.

Family law covers a wide variety of issues related to marriages and children. Although often we think of needing lawyers when things get bad, this is not necessarily the case. There are many more circumstances where legal aid may be necessary.

Suppose you are at the stage of deciding to get married. You might want advice on the laws regarding future dissolution should that be necessary. Laws regarding marriage can be very different from one state to another. States can also have different laws regarding the length of time a couple has to live in the same house to be considered to have a common-law marriage.

No one goes through with a marriage assuming they will be getting divorced at some point. Even so, it is best to protect your assets if you have any. You may want legal help in drawing up a prenuptial agreement. This can help you from getting into far greater problems at some point in the future if you do decide you want a divorce.

When it comes to children, there are many different ways a lawyer can help. For example, if you are having trouble conceiving, you may need help with surrogacy or adoption. Trying to adopt without legal help can result in an even longer process than usual and you may not even get your child at all.

In the case of a divorce, a lawyer can be instrumental in making sure that your rights are protected. This is even more important if you have children and assets that are shared. If the divorce is not friendly, a lawyer will be necessary, for the sake of your children if nothing else. A lawyer can help you in matters such as child support, child custody, and should it be necessary for child abduction.

You get married assuming it is going to last. You also assume that your spouse will never do something that could end up endangering your children. Otherwise, you would not be getting married. Unfortunately, problems can arise. If they do, you can call on a family lawyer to help you through all the processes and paperwork.

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Insurance companies have a duty to act in “good faith and fair dealing” towards their policyholders. This means an insurance company is required to:

Pay or deny your claim within a reasonable period of time
Respond to your inquiries in a prompt manner
Cooperate with you in regard to resolving your claim
Provide written notification of the reasons why it is not paying or reducing your claim.
Texas law requires insurance companies and HMOs to pay first-party claims promptly. A first-party claim is one filed by you against your insurance company or HMO. Prompt payment does not apply to liability insurance claims against another person’s insurance company. It also does not apply to claims involving self-funded plans, workers compensation, mortgage guaranty or title insurance, fidelity, surety, or guaranty bonds, or marine insurance (other than inland marine).

Texas’ prompt-payment law requires licensed insurance companies and HMOs to:

Acknowledge claims, begin investigations, and request any needed information within 15 days after receiving a claim. Surplus lines carriers have 30 days to complete this process. A surplus lines carrier is an out-of-state company not licensed in Texas but allowed to insure hard-to-place risks.
Notify you in writing of the acceptance or rejection of your claim within 15 business days after receiving all required information. This deadline may be extended an additional 15 days in the event of a “declared” weather-related or natural disaster. If the company cannot accept or reject your claim within the time limit, the company must tell you why it needs more time to process your complaint. The company will then have up to 45 additional days after this notice to accept or reject your claim.
Give the reason in writing for rejecting your claim.
Make payment within five business days after notifying you that your claim will be paid. Surplus lines carriers must pay your claim within 20 business days.
If you win a lawsuit for the violation of the prompt-payment law, the court can require the company to pay your attorney fees and a monetary penalty.

Insurance companies act in bad faith by failing to honor legitimate claims. They may inadequately investigate a claim, or delay investigation, fail to pay or delay paying a valid claim, treating the insured as an adversary, deceive or evade the insured’s questions, conceal facts, show a pattern of denying all claims, lie, cheat, etc.

The size and prominence of an insurance company are not a judge of its character. Insurance companies as large and “upstanding” as Allstate and State Farm have been shown in court to have acted in “bad faith”.

Most insurance companies operating in Texas are required to have toll-free telephone lines for customer assistance. The toll-free number should be listed on your policy.

Have your questions and policy number available when you call the company.

If you have a dispute with your agent or company, put it in writing. This encourages a written response. State your complaint and how you expect the company to handle it.

Include with the complaint copies (not originals) of letters, notes, invoices, canceled checks, or advertising material that support your complaint.

Contact an attorney if you feel like you are being treated in bad faith.

Any time you have an insurance claim and suspect bad faith, you should follow several simple rules:

You may wish to consult an attorney to discuss your concerns.

You may also request alternative dispute resolution (ADR) to settle complaints with your insurance company. ADR uses a neutral third party to help settle a dispute outside a formal court of law. Using ADR to settle your insurance claim can avoid the delays and costs of a trial.

If you use ADR, you do not surrender your right to insist on full and fair compensation. In most cases, ADR also does not eliminate your ability to sue or go to trial. You do not need an attorney to use ADR, although you may wish to hire one.

Remember, the job of the adjuster is not to pay you…it’s to save the insurance company money. They are not on your side, and they are not trying to help you. You need an experienced insurance lawyer to get what you really deserve. The Insurance Companies already have lawyers, you should have one too.

Insurance companies that have committed acts of bad faith may be required by law to pay original benefits, legal costs incurred by the insured party, damages for any harm incurred because of claim denial, and in some cases, punitive damages.

There is a time limit, or statute of limitations, in bad faith claims. Act as soon as possible in order to protect your rights.

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Insurance Bad Faith, Uninsured Motorist Claims — Texas Attorneys

Imagine finding out that, despite a valid claim, you have been denied coverage by your insurance carrier. Or, imagine being injured in a car accident only to learn that the driver at fault has no insurance to cover the costs of the damage to both your vehicle and your health. If you have been a victim of insurance bad faith or an accident with an uninsured motorist, you don’t have to imagine – it is your reality. The insurance bad faith attorneys at our firm are experienced in these sorts of cases and have access to a host of specialists in such areas as insurance coverage and accounting fraud. The unfortunate fact is that although they claim to be looking after your needs, insurance companies’ number one concern is their own financial welfare. They will go to great lengths in refusing to help even the most deserving clients.

Whether our clients need assistance with insurance bad faith or uninsured motorist claims, our attorneys will do everything possible to win their case. Contact us today for your own free case review.

Insurance Bad Faith
Uninsured Motorist Claims
ERISA Disabilities

Every month, a nice chunk of many people’s paychecks is sent off to an assortment of insurance companies — homeowner’s insurance, car insurance, health insurance — with the intention of obtaining protection from bearing the entire financial burden after a catastrophic event. When the insured individual gets sick, their health insurance helps to cover some of the cost of medical treatment. When a house burns to the ground, the homeowner’s insurance can assist the policyholder in putting his home back together. However, insurance companies oftentimes do not want to provide the coverage for which their clients have paid; it is sadly commonplace for insurance companies to deny the claims of their clients. When this is done in the face of undeniable and viable evidence that their client deserves coverage, it is called “ insurance bad faith.”

For insurance companies, denying claims — even valid ones — is a common practice that works in their best financial interest. Studies show that out of 100 denied claims, just five clients will try to appeal the denial. Even if the insurance company chooses to pay four out of those five claimants, and is then forced to pay the fifth claimant after a legal fight — the company has still avoided paying for 95 percent of the valid claims they denied.

When dealing with large, wealthy, and powerful insurance companies, it is crucial to have an experienced, passionate, and proven legal team on your side. Our insurance bad faith attorneys have spent more than two decades working diligently and successfully for insurance bad faith victims. Contact us today to discuss the details of your case with a member of our expert legal team.

Uninsured Motorist Claims
Under Texas state law, all drivers are required to have car insurance. However, the most recent statistics reveal that approximately 22 percent of all drivers in Texas do not have car insurance. This not only endangers their life and livelihood but also the life and livelihood of responsible, legally covered drivers. One of the most frustrating and frightening things a person can go through is having the stress of a car accident compounded by the fact that the driver responsible for the accident doesn’t have insurance. At our Law Office, we are highly skilled in handling all kinds of uninsured motorist claims for victims.

When an insured driver is struck by an uninsured motorist, the insured driver can receive compensation for personal and property damages from his or her own car insurance company if the policy covers uninsured motorist accidents. It is then the insurance company’s responsibility to bring a case against the uninsured motorist. However, if the driver’s policy does not cover uninsured motorist claims, it becomes their responsibility to hold the uninsured motorist accountable for the damages. If you or a family member have been involved in an accident with an uninsured motorist, it is very important that you seek professional legal guidance as soon as possible — even before speaking with your own insurance company. Our lawyers are experts in successfully resolving uninsured motorist claims and they are ready to review your case today. Please contact our firm right away.

ERISA Disabilities
ERISA stands for Employee Retirement Income Security Act of 1974. Originally designed to improve the ability of employees to receive insurance and long-term disability, and save for retirement, ERISA has actually delivered a crushing blow to the average employee seeking coverage. In effect, ERISA makes it more difficult for employees to prove they deserve coverage, and easier for insurance companies and employers to deny benefits. What’s worse, appealing a denied claim is so difficult (even in the most deserving cases) that a large percentage of lawyers won’t even attempt to bring an appeal. However, the insurance bad faith attorneys at our Law Office want to help those denied coverage under ERISA to receive the benefits they are due.

Contact Our Insurance Bad Faith Attorneys
If you are ready to fight for your legal rights against insurance bad faith or need assistance with uninsured motorist claims, contact our attorneys as soon as possible. We understand the complexities of these claims, and we know how to build successful insurance cases.

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Elder Abuse

Perhaps one of the most shameful crimes in our society is that of elder abuse. With more and more aging seniors being placed in nursing homes, where they are supposed to receive the kind of medical attention they deserve, there has been an increasing number of elder abuse cases. Our lawyers can help you protect your loved ones from negligent, violent, or fraudulent acts committed by their caretakers.

Symptoms of elder abuse include, but are not limited to:

Inexplicable bruises, cuts, and fractures
Burns
Dehydration, severe weight loss, or bed sores
Obvious lack of hygienic care, such as baths or clean laundry
Disorientation and depression
Missing jewelry or other valuables
Over- or under-medication
These symptoms, and many more, can be attributed to negligence and physical, mental, and emotional abuse. The families of elderly nursing home residents should be able to trust their loved one’s caretakers; the elderly deserve to live with decency, respect, and attentive care. When a nursing home or its employees fail to adequately provide for the needs of an elderly patient, they should be held accountable for their actions. If you believe your loved one is a victim of elder abuse, contact the lawyers at our firm. We will review your case and investigate your claim as quickly as possible.

Social Security Disability

If you have been injured or disabled, and wrongfully denied the social security disability coverage that you deserve, our attorneys can help you fight back. It is an unfortunate fact that many legitimate disability claims are denied by the Social Security Administration every day. Wading through the legal documents and forms required to dispute a claim can be confusing, and often deters people from pursuing the benefits they have earned.

To be eligible for Social Security Disability Benefits, you must have paid Social Security taxes for at least five of the last 10 years and have a terminal condition or a disability that will prevent you from doing your job for at least 12 months. It is also necessary to prove that your impairment prevents you from doing any other kind of work outside of your current employment.

Having a lawyer who understands the technical and medical terminology involved in this type of case is extremely important. At our Law Office, we have successfully handled Social Security cases before and will do everything possible to help you receive your benefits.

Government Tort Liability

The Government Tort Liability Act states that government employees cannot be held responsible for personal injury cases except when the official’s negligence is a cause of the injury. It does not have to be the primary cause, but it does have to play a role in causing the injury to happen. Government tort liability laws help to protect government officials from being sued fraudulently, while also providing a means for victims to seek compensation when they are injured due to a government official’s wrongdoing or negligence. If you or a loved one has been injured because of a government official’s actions, please contact our Law Office today.

Contact Our Workers’ Compensation and Elder Abuse Lawyers
Receiving sound legal guidance as soon as possible can make all the difference in the length and success of your suit. Many victims of wrongfully denied social security disability or workers’ compensation claims, elder abuse, and other such cases fail to contact their lawyers until it’s too late. We strongly urge you to contact our law firm right away.

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Auto Accident Insurance – What To Look For

By far the most crucial concern that needs to be attended to, if you are involved in an auto accident is always to see to any personal injuries that will have resulted. The next most important task is to speak to your insurance company representative. So let’s say you contact your agent to inform him you have been involved in a car accident, and he seems very helpful. He even suggests a body shop you could take your vehicle to and might refer to it as being a “preferred” repair shop.

“Terrific” you may think. That saves you the hassle of needing to find a body shop yourself. After all, you want to get your car repaired at the earliest opportunity. However, suppose you are already aware of a high-quality repair shop that does body repair and would prefer to take your vehicle there.

So you notify your insurance representative you wish to take your car to another body shop. But he responds with something similar to “We won’t warranty the repair in the event you go there” or “You’ll need to spend a lot more if you go to the shop that you picked” or some other statement intended to discourage you from going to your shop and encourage (or possibly attempt to coerce) you to go to the company’s “preferred” shop.

So what to make of all this? You might be wanting to know why he is wanting to discourage you from opting for your own shop?

To respond to this question, you need to know what the final goal of an insurer is: The answer has nothing to do with providing you the convenience of not having to find a good repair shop … the final target is to generate profits and as much money as possible! And that is accomplished by minimizing the amount they must pay back in insurance claims.

So the collision shop your agent suggests is “preferred” … preferred by the insurance carrier for THEIR advantage, not yours. And why is that? Because the recommended repairer is under contract to utilize components that are less costly than the original parts that were in the car when it was new. But regrettably, most of these parts are substandard in quality and could even result in a dangerous repair job! This can even mean that your car will be unsafe to drive after the fixes are concluded.

There are more reasons why choosing the wrong repair service can lead to dangerous fixes. There’s a method referred to as “Clipping”, and that means cutting off a complete half of your car (either the front or rear half) and affixing another (undamaged) half of a vehicle that has been wrecked.

This process actually entails cutting through the vehicle’s unibody or frame, and it affects its structural integrity. Does this sound risky to you? That’s because it IS unsafe! But sadly, it isn’t against the law! It’s a widespread incident.

So the bottom line is – if you were to be in a traffic accident – look out! Find out if the shop makes use of OEM (original equipment manufacturer) components or lesser quality “aftermarket” parts. And if the shop performs “clipping” … don’t even consider using them!

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NTSB Highlights Safety Issues Related To Sleep Disorders

Washington, D.C. – The National Transportation Safety Board Acting Chairman reemphasized the importance of medical screening for vehicle operators who may have undiagnosed sleep disorders. The remarks come at the beginning of National Sleep Awareness Week (March 28 – April 3), during which the NTSB hopes to raise public awareness of its ongoing concern about fatigue-related safety issues.

The U.S. Department of Health and Human Services estimates that sleep disorders such as insomnia, sleep apnea, and restless legs syndrome affect 50 to 70 million Americans. Sleep disorders were among the safety concerns addressed in the Board’s Special Investigation Report, Medical Certification of Noncommercial Drivers. The Board has recommended education for vehicle operators and their physicians about sleep disorders and how they may contribute to fatigue-related performance decrements, improved medical exams for commercial operators that include questions on sleep problems, and restrictions on the use of medicines that may cause impairment during vehicle operation.

The Board also addressed sleep disorders at a public hearing hosted by NTSB concerning factors that contribute to medically related highway accidents. The acting Chairman stated that the Board has linked fatigue resulting from sleep disorders to numerous accidents. He noted, “In many cases, operators are not aware that they suffer from a sleep disorder until after they have been involved in a crash.”

By raising awareness about the importance of sleep and the need for operators to be screened and, if needed, treated for sleep disorders, the Board hopes to decrease the number of accidents attributable to fatigue. In an effort to further highlight and share information on the significant role fatigue plays in transportation safety, the Safety Board has developed a two-day course designed to bring together federal and commercial transportation officials, law enforcement officers, and other interested parties to discuss the topic at the NTSB Academy.

Contact our lawyer now If you have experienced personal injuries or substantial income loss as a result of a truck accident. Our lawyers are here to give you a free case review and to fight for you in court.

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Boat accidents are a leading cause of unnecessary deaths and therefore a source of personal injury. Many of the accidents occurred due to negligence on the part of one of the drivers involved. When a boat accident is caused by another party’s negligence, people who are harmed often reach settlements with the liable party which provides compensation for medical expenses, pain, and suffering as well as other damages. This requires the service of a boat accident attorney. Locating the best boat accident attorney is not that difficult a process under normal circumstances. However, finding one when you or a loved one have been seriously injured in a boat accident can be significantly more troublesome. There are qualified Personal Injury Attorneys that specialize in personal injury cases. They have the expertise and skills necessary to obtain fair financial compensation for the damage to property caused by the accident, along with all physical injuries that the accident victims have had to endure.

Any driver that was not at fault for an accident should expect to be fully compensated, for all of his or her medical bills. In addition to that, the victimized driver should receive recompense for all the repairs necessary to bring their damaged vehicle back to the condition it was in before the accident.

However, the process of doing that can be extremely lengthy, with moments of frustration and anxiety, especially when an insurance company refuses to pay medical bills or send the funds to have the boat repaired. This is why it is necessary to hire a competent boat Accident Lawyer. He or she will represent their clients to achieve the compensation that every victim of the accident is entitled to

Settling the Case

A Boat accident attorney will build the case strong enough to take it to trial in a court of law. However, long before the trial is scheduled, each represented party (the attorneys) usually will meet with the opposing side to discuss settling the case out of court. Both sides typically calculate the amount of pain and suffering that has been endured by the victim along with the seriousness of the damage inflicted on the vehicle or other property.

If a settlement can be reached, then both sides will avoid an expensive and lengthy process of trying the case in open court. However, if the plaintiff is dissatisfied with the amount offered during the settlement, he or she can always instruct the Boat accident attorney to take the case to trial.

Before selecting the best Boat Accident Attorney, it is important to consider the fee that will be extracted from the total amount awarded during the settlement phase, or after the case has been won in court. Typically, for a personal injury case, an attorney can charge anywhere between 25% and 40%, based on the specific circumstances of the case. While this number might appear to be high, research indicates that cases involving an attorney typically have much higher settlement amounts than those that are achieved without the skills of an attorney, or a law firm.

Any driver that has been in an accident where the other driver is at fault or he is at fault should seek out a competent and skilled Boat accident attorney. They will handle all the details to represent him or her in the case.

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I. Introduction:

It is likely that no other field of civil litigation has done more to improve the lifestyle of American citizens than medical malpractice litigation. Health care in the United States is among the best in the world, and this is in large part due to the scrutiny placed upon the medical field by malpractice litigation. The law of medical malpractice is an outgrowth of the general body of negligence law. It is applicable to all suits against medical professionals for negligence in the rendition of medical services to their patients. At common law, the duty of due care by medical professionals was deemed to have arisen out of the contractual obligations which are created when a patient contracts with a health care provider to perform health care services. Even though some jurisdictions still retain common law contractual concepts in dealing with medical malpractice issues, medical malpractice is now generally considered to be an independent action in tort, rather than in contract.

II. Medical Malpractice:

In the same sense that the ordinary body of negligence law defines negligence as the doing or the failure to do something that a person of ordinary prudence would or would not do under the same or similar circumstances, the law of medical malpractice defines medical negligence as the doing or the failure to do something that a reasonably prudent health care professional in that field would or would not do under the same or similar circumstances. In negligence law the fictional “reasonable man” standard has been created to evaluate the conduct of the defendant who has been accused of negligence. In medical malpractice law the fictional “reasonably prudent health care provider” standard has been created. It has been argued that the “reasonable man” standard is objective, in the sense that it is a standard applicable to all human beings, whereas the “reasonably prudent health care provider” is more subjective, in that it allows the medical profession to define the standard by which its conduct will be judged, and that standard may fluctuate over periods of time as short as months, depending on available technology. On the other hand, the law holds even medical professionals to certain minimum requirements of care, and evidence that few people in a given medical field exercise caution in an area where caution should be exercised would not preclude a finding of medical negligence. In medical malpractice cases the plaintiff must establish through expert testimony the standard of care required of professionals in the field of the defendant and that the defendant breached or failed to adhere to that standard of care, thereby causing the plaintiff’s injury. A negative result in medical treatment in and of itself does not mean that the defendant committed malpractice. Medical treatment carries with it no guarantee of a successful outcome. In many medical procedures there are risks that cannot be avoided even if the health care professional exercises the greatest caution. These are called unavoidable risks. On the other hand, even risks which are unavoidable even when the greatest care has been exercised, may in a particular case, be shown to have resulted from lack of due care by the health care professional.

III. Defenses:

The standard legal defenses of contributory negligence and assumption of risk are generally considered to be applicable in medical malpractice cases, although by the very nature of the superior knowledge of the health care professional over that of the patient, there are probably less instances where these defenses can be effective.

In terms of factual defenses, health care professionals raise a number of arguments in opposing malpractice claims, several of which have little merit, but all of which create significant obstacles to a plaintiff. Some of these arguments include:

The decision of the health care provider was a judgment call, within accepted medical standards.

The treatment by the health care provider was within an acceptable alternative form of treatment.

Health care providers are people. No one is perfect. They are fallible and make mistakes, and making an innocent and well- intentioned mistake of judgment is within accepted standards.

Although this argument is sometimes raised, it is without merit. The law’s fiction of a “reasonable physician” standard assumes that mistakes will be made, and they are included within the meaning of negligence. By analogy, drivers are not perfect and sometimes are inattentive, but that doesn’t mean that a driver who takes his/her eyes off the road and causes an accident is not guilty of negligence.

The absence of any notation in the medical record specifically showing the error demonstrates that the plaintiff cannot prove what happened.

Rarely is the mistake of a physician explicitly revealed in the physician’s medical record. Circumstantial evidence is a legitimate way to prove medical negligence, particularly where one would not expect to find an explicit confession of negligence in the record. Despite the obviousness of this point, defendants often argue that there is an absence of evidence of negligence.

The plaintiff’s ultimate outcome in terms of medical difficulties cannot be shown to have been affected by the malpractice.

This is the way I and everyone else I know in my field do it.

This assertion is often interjected by the testifying physician to contradict the plaintiff’s expert’s definition of the standard of care. The plaintiff cannot produce every physician to testify to the way things are done and must rely on the testimony of his or her expertise as well as trial court rulings to combat this assertion.

IV. Proximate Causation:

Just as in negligence law, a plaintiff in malpractice litigation must show that the damages were proximately caused by the malpractice of which the defendant is accused. Unlike a simple accident case, most plaintiffs are already injured or ill at the time they are victimized by medical malpractice. Therefore, the plaintiff and his/her expert must separate out the damages that would have resulted even if the plaintiff had received appropriate medical care from the damages that actually resulted from the addition of inappropriate medical care. It is often difficult for the victim, who is afflicted with serious medical problems, to appreciate the requirement of the law that the plaintiff proves that the malpractice worsened or failed to stem a worsening of his/her medical condition. In addition, causation must be proved to a reasonable degree of medical probability, and mere possibility is generally not sufficient. If all the testimony shows is that a given outcome might (as opposed to “probably would”) have been avoided by a particular treatment, there is generally a failure of proof.

V. Informed Consent:

The doctrine of informed consent is a unique area of malpractice litigation. It does not follow strict negligence principles, in that the plaintiff need not show that the health care provider was negligent in failing to obtain his/her consent to treatment. In general, the law grants to the conscious patient the right to choose whether to obtain medical treatment and requires that a health care practitioner provide the patient with accurate information as to diagnosis, the nature of the proposed treatment, any risks associated with that treatment, alternatives to that treatment along with their associated risks, and the risk of no treatment. The failure to provide that information is, in and of itself, a violation of the patient’s rights. Informed consent does not involve a question of the standard of care within a particular medical field, and there is no requirement that a plaintiff provides expert testimony that reasonably prudent health care providers within that field provide that information to their patients. However, expert testimony may, nevertheless, be required to show the nature of the risks and the alternatives to treatment.

A plaintiff must show not only that his/her rights were violated by a health care provider’s failure to provide this information, but also that a reasonable person in the position of the Plaintiff, without the benefit of hindsight, would or would not have chosen the treatment at issue had accurate information been given. It is important to note that this last requirement will not necessarily be satisfied by testimony from the Plaintiff that he or she would or would not have chosen the treatment in dispute. The fact-finder, whether it be a judge or a jury, is free to find, despite testimony from the plaintiff to the contrary, that a reasonable person would have chosen to decline or accept the treatment in dispute. For this reason, many violations of informed consent will not give rise to good malpractice claims. If the risks are low (despite the fact that the plaintiff, in hindsight, is now known to have fallen prey to that low risk) and the treatment is reasonably necessary or desirable, the fact finder may well conclude that even if the plaintiff had been properly informed of the risks, the same decision would have been made by a reasonable patient in the plaintiff’s position.

It is important to distinguish between the consent form signed by many patients, the doctrine of informed consent, and the concept of medical malpractice. The fact that a consent form was signed is evidence of informed consent, but it is not conclusive. Evidence may be introduced as to the contents of the form and the time and circumstances of the signing. Furthermore, the fact that a consent form mentions a particular risk or the fact that a physician advises the patient of a particular risk, does not mean that the patient has consented to the physician committing medical malpractice in bringing about the danger of which the patient was warned. For instance, the fact that a patient is advised that there is a danger of nerves or vessels being severed during a surgical procedure does not relieve the physician of the obligation of performing the procedure in a medically appropriate manner. The consent of the patient operates only for those injuries which were not avoidable even with the exercise of appropriate care. In such a case, the patient would be permitted to show negligence in the performance of the procedure, despite the fact that he or she was warned of the danger.

VI. Medical Experts:

The requirement that expert testimony be presented expressing an opinion on the standard of care within a particular medical field and on the defendant’s breach of that standard of care provides one of the most formidable obstacles to plaintiffs in pursuing malpractice claims. Within the medical profession, there is what has been termed a “conspiracy of silence” among medical professionals on providing testimony in malpractice claims. It is rare for local physicians to testify against a colleague, even in large communities where it is unlikely they know each other. Ostracism within the medical community against those physicians with the courage to testify long ago resulted in an informal code of conduct prohibiting physicians from testifying for plaintiffs in malpractice claims. This forces plaintiffs’ attorneys to seek experts from other communities, often far away from the location of the trial. The limited number of physicians willing to testify, even from distant locations, results in high per hour expert witness fees, often between $400 and $500 per hour. The defendant physician, on the other hand, usually has an unlimited pool of expert witnesses from the defendant’s own colleagues in the community, making it easy to provide a defense, even when the malpractice is relatively clear. Insurance companies, bolstered by a medical profession that believes it should be immune from civil suits, while at the same time refusing to adequately police itself, are often willing to fight to the finish on these claims. Settlements, if they occur, rarely occur before the trial is imminent. The effect of this is that the expense of expert witnesses and the cost of discovery in malpractice claims often results in expenses in excess of $50,000 – $100.000 to the plaintiff. It is easy to see why only the most egregious instances of malpractice causing only the most serious injuries result in viable malpractice litigation. The hoax perpetrated by the insurance industry to the effect that the courts are filled with frivolous and petty malpractice claims is one of the most fraudulent and malicious propaganda campaigns ever foisted upon the public. It is simply not economically feasible for any plaintiff’s attorney to prosecute any but the most meritorious malpractice claims with the most seriously victimized plaintiffs.

VII. Conclusion:

Pursuing a medical malpractice claim is an expensive and arduous undertaking. Proving the claim requires expertise, resources, and tenacity. Our Law Firm has successfully prosecuted a large number of malpractice claims. If you have a question about a possible case or would like a consultation, please feel free to call us. We look forward to hearing from you soon.

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