Alabama Personal Injury Blog - Damage

Caps on Damages Make No Sense

Billy Cunningham — Sat, 07 Nov 2009 11:14:08 GMT

The Republican proposal on health care reform has provisions to limit compensation for non-economic injuries to persons injured or killed as the result of medical malpractice including residents of nursing home who are neglected or abused. Most of my practice over the past 23 years of my 35 year career has been representing nursing home residents. I began thinking of how I would tell clients and/or their families that nursing home neglect and abuse was included in the medical negligence bill proposed. How do I explain that injuries to the elderly, vulnerable members of our society are limited? Here are people who cannot protect themselves, who rely on nursing homes for their safety and well being, and to provide a quality of life that Congress knows what the limit of those injuries are? I thought of all the cases that I have handled involving injuries in nursing homes. The following are actual examples of victims of nursing home neglect and abuse that under the standard proposed by the Republicans would be limited in any award against the nursing home that caused the injuries or death the award.

Mr. A. who had a grapefruit sized vaginal malignant tumor that the nursing home never knew about- death case.

Mr. B. , an Alzheimer patient in a ‘special unit’ who despite no other physical diseases developed multiple state 4 pressure sores, contractures and severe weight loss – death case.

Mr. C., a smoker, who was strapped in a wheelchair and unwatched burned to death when a lighter caught his clothing on fire.

Mrs. D who was overdosed with psychotropic medications to keep her quiet and while trying to escape the torture fell in a bush and lost an eye. After this incident she was moved to a nursing home that properly cared for and weaned her off the psychotropic medications. She was discharged and the last I heard was playing the slot machines in Biloxi. Personal injury case.

Mr. E. who was beaten to death by another nursing home resident who had previously beaten other resident. No precaution was taken to protect any of these residents.

Mr. F. who was demented and known to have a desire to leave the facility and fell from an open window. death case

Mr. G. who went in a nursing home for a 21 days rehabilitation after hip surgery and developed a pressure sore so big on his leg that the leg had to be amputated- personal injury case.

When you look at the data which shows that medical malpractice is a very miniscule part of the cost of health care, you have to ask yourself whether proposed limits are fnecessary for health care reform or fair to the victims.

Originally posted at InjuryBoard by Billy Cunningham

Why Can't I Recover Everything I Lost?

Pete Mackey — Tue, 03 Nov 2009 19:09:27 GMT

I settled a case recently right before jury selection. It was a legal malpractice case. My client had lost a good bit of money because the lawyer representing him in a real estate transaction did not read the rules closely enough. I spoke with my client today and he asked a very reasonable question - why is it that I end up with less than a whole loaf when I did not do anything wrong? After I pay your fee and expenses, he said, my recovery is less than what this whole ordeal cost me.

Though I agreed with his math, I reminded him of our conversations early on about the damages that he could recover. The lawyer here did not try to cheat him, he just didn't give the matter the proper attention it deserved. As such, punitive damages would not be available. Moreover, he could not recover emotional distress damages, even though he clearly went through a lot. In Alabama, if you haven't suffered a physical injury, emotional distress damages are not available for negligent acts unless you can show that you were exposed to the threat of bodily harm - in the "zone of danger."

On top of all that, he could not recover the attorney's fees he had to pay me. That is because we follow the "American Rule" in the United States. Each side pays their own lawyer unless there is a contract that provides that the winner recovers such fees or there is a law that does the same thing (as in Federal discrimination cases). While this can result in an anomaly like this, there is a good reason for the rule. If lawyers knew that the loser would have to pay the other side's attorney's fees, it would close the courthouse doors to a lot of folks where the prospect of paying fees to the other side would chase off lawyers from getting involved. It is a lot like democracy - it's not great, but it's better than every other system out there.

Originally posted at InjuryBoard by Pete Mackey

How Do You Feel About Tort Reform? It Depends On How you Feel

Pete Mackey — Sat, 19 Sep 2009 21:28:39 GMT

Feelings about tort reform can vary with the landscape. Anyone who makes their policy decisions primarily in accordance with their financial bottom line, and happens to be on the white collar side of the equation, loves tort reform - as long as it does not affect their pocketbook. Damage Caps? Check. Insanely short statutes of limitation? Roger that. Arbitration? Of course.

Howard Bronson, the former publisher of the Mobile Press-Register since 1991, has seen the light. The man who carried all the water for the tort reform movent that he could, who made sure that his newspaper railed against what he saw as "jackpot justice" and "runaway verdicts," who never saw a punitive damage award that was justified, has done a one eighty. After being shown the door, he has filed suit against the owner, claiming that it reneged on a job security agreement made when he started with the paper. Way to go, Howard! Are you trying to make good law for life time employment contracts? Did you ask for punitive damages? Do you think that maybe it's time to recognize that "what's good for GM is what's good for America" may not be the catch phrase you thought it was? Ask Robert Bork - he had to make the same decision.

Originally posted at InjuryBoard by Pete Mackey

Noose that Hangs a Man Shows No Damage Either

Jon Lewis — Wed, 19 Aug 2009 13:30:07 GMT

The insurance industry has been promoting a fallacy since the early 1990's. That fallacy is that people in cars cannot be injured if the damage to the car is minor. This could not be further from the truth; however, jurors and society in general have bought into this concept. People think anyone who brings a claim for injury after minor damage to the vehicle is a crook.

As the title of this blog indicates, the rope used to hang a man will show little, if any, damage, but it will kill the man. With respect to vehicles, they are built better these days and built to withstand crashes of more significance than they could withstand years ago. Think about the materials which are now used in bumpers and other components of cars and SUV's. Simply because the car or SUV shows little damage does not mean the impact of the collision was insignificant or that the person inside the vehicle was not jolted one way or another to cause an injury.

Additionally, you have more towing packages and other components which resist damage but still receive the force of the impact. The seats in the vehicle have an effect on the collision and injury as well. See this report on It is not enough to say that the car or SUV suffered little damage. Shouldn't we focus on the individual who is injured and not the metal?

My grandfather used to always say, "Don't ever worry about what money can replace." Unfortunately, insurance companies want you to focus on the opposite. Since there is little damage to the vehicle, this person isn't hurt, and we shouldn't have to pay. This is horrible logic. We should focus on the person and the doctor and not assume the victim is lying. We should presume the person is telling the truth because if they are, they are the ones who lose in the end and are left with the injury.

If you want to read more about this issue, here is a very good article with supporting cites: Low Impact Injury Accidents: Are they Real?

Have you been in a low impact accident? Were you injured? Do you know someone who was? Can you dispel the myth? Let's talk about it. Let's get the public aware of this problem. Not everyone is injured in a collision. Some people are involved in significant collisions and rollover crashes, and they are not injured. Some people are in minor crashes, and they are injured. That is why we need to evaluate the person, not the car.

Let us know what you think.

Originally posted at InjuryBoard by Jon Lewis

Drive when you Drive!

Jon Lewis — Thu, 13 Aug 2009 12:38:36 GMT

Have you heard? People are texting while driving. Yes, really! They are talking about passing laws to prevent this, and Leonard Pitts, Jr. wrote a good editorial with a quote, "Common Sense Should End Texting and Driving." In other words, do we really need laws to make people stop this activity? Well, we need them for drinking and driving, so I guess so. Problem is, how do you enforce it?

Think about what you are doing when you are talking on the phone or dialing a number or texting. Your mind is taken off the road. You are no longer driving defensively which is what you are taught in drivers education in high school. In reality, you are driving recklessly. As Mr. Pitts points out in his article: Is that score that important? Could you wait to message a friend? Is the call urgent? Probably not.

10-15 years ago, we didn't have as many cell phones in cars, and even when we did, we couldn't e-mail and text and get on the internet from our phone. Did we survive? Could we wait for that message? Could we just use the phone when we got home? When did everything become so urgent in society? We have to have it now.

Next time you think about using the cell phone in your car, think about others. Is there a child in your car you are putting at risk? What about the other motorists on the roadway? It takes a split second for a vehicle to inflict irreparable damage. Just Think about it!!

Originally posted at InjuryBoard by Jon Lewis

Is it Fraud?

Jon Lewis — Wed, 15 Jul 2009 18:30:47 GMT

What is fraud? What is misrepresentation? Many people think they have been defrauded when they have not, and many people don't know that they have been defrauded when they actually have been.

In Alabama, fraud is statutorily defined and interpreted by case law. The statute is as follows:

Section 6-5-101

Fraud - Misrepresentations of material facts.

Misrepresentations of a material fact made willfully to deceive, or recklessly without knowledge, and acted on by the opposite party, or if made by mistake and innocently and acted on by the opposite party, constitute legal fraud.

(Code 1907, §4298; Code 1923, §8049; Code 1940, T. 7, §108.)

As you can see, fraud can be made by mistake and innocently, but if you rely on the mistaken misrepresentation, it constitutes fraud. In addition, silence can constitute fraud:

Section 6-5-102

Suppression of material facts.

Suppression of a material fact which the party is under an obligation to communicate constitutes fraud. The obligation to communicate may arise from the confidential relations of the parties or from the particular circumstances of the case.

(Code 1907, §4299; Code 1923, §8050; Code 1940, T. 7, §109.)

Of course, the issue in these cases centers around what constitutes "material". Typically, this can arise when there is a fiduciary relationship between the parties.

There are numerous elements to fraud. Not only does one have to prove that there was misrepresentation of a material fact, but you have to show some form of reliance. In other words, you have to rely on the misrepresentation and act to your detriment. Then, you must show that you have been damaged in some form or fashion.

How does this work? Well, I have a case right now where my clients purchased a home. The contract showed that the home was on a sewer. The seller and agent checked the box showing that it was on a sewer. They didn't know that it wasn't on a sewer, but they represented, in writing, that it was on a sewer. My clients bought the house. After a year, the clients find out that the home was not on a sewer or septic system. It was tied to an underground well. They had to pay a plumber to come out and connect the home to the sewer lines.

In this case, the seller misrepresented that the home was on a sewer system (even though it was innocent, and they didn't know). My client relied on the representation and bought the house at a certain price (they wouldn't have paid the same amount if they had known there was no sewer or septic system). They were damaged in that they had to pay to have the line dug up and connected to the sewer. That is a fraud and misrepresentation claim in Alabama.

Originally posted at InjuryBoard by Jon Lewis

If I slip or trip and fall and get hurt, what am I entitled to?

Danny Feldman — Thu, 02 Jul 2009 12:11:29 GMT

The short answer is that you are entitled to be put back into the position that you would have been in had the incident not occurred. Unfortunately, no matter how good your lawyer is or how sorry the premise owner is for your injuries, no one can turn back the hands of time. Accordingly, what happens (assuming you prevail) is that you will receive a sum of money, either through a settlement or verdict. The amount you receive is supposed to be an amount to reasonably compensate you for what you have been through.

Certain aspects of your damage claim will be fairly precise numbers. For example if you earn $500/week and you missed one week of work due to your injuries, you will have a $500 lost wage claim. Of course, defendants will argue that you should receive nothing if you had sick days or if the missed time is not as a result of doctor's orders. Further, if you are in the 1/3 tax bracket, defendant will want to subtract this amount as well.

You also will be entitled to receive the cost of your medical expenses incurred because of the wreck. Once again, it will be your burden to prove, often by very expensive ($1,000/hour or more) testimony from your doctor that your injuries, more likely than not where caused by the incident, that the medical treatment rendered was necessary to heal and cure you, and that the cost of the medical treatment was reasonable compared to the cost for similar treatment in your community. In addition, if you have health insurance, defendant will argue that all you are entitled to is the amount of your "out of pocket" co-pays and deductibles and the amount of your health insurer's subrogation claim. Forget that you have had $800/month deducted from your paycheck for the last 20 years to pay for this coverage.

The hardest to quantify area of damages generally is referred to as "pain and suffering" and mental anguish/emotional distress. It amazes me sometimes how people think that if you hurt someone and pay their out of pocket medical bills, that the injured person has been reasonably compensated. How about the inconvenience of going to numerous doctor visits; the stress of worrying about bills that aren't getting paid because you can't work; the pain you feel from the injury; the inability to do things that you like or need to do because of the injuries you suffered - for instance, not being able to go on along-planed vacation, not being able to exercise, sometimes not even being able to do the normal activities of daily living, like driving, dressing, cooking, cleaning etc.? These are the types of things that a pain and suffering award is meant to compensate. Just because it is harder to quantify monetarily should not mean that it is any less real and therefore simply should be forgotten.

Finally, in some rare cases, you might be entitled to punitive damages. Punitive damages are not designed to compensate you for what you have been through; rather they are designed to punish defendant for reprehensible conduct and to deter others from engaging in similar conduct. Punitive damages are rarely awarded, but in certain cases, they do have their place.

Originally posted at InjuryBoard by Danny Feldman

Alabama Uninsured Motorist Coverage - Unbelievable!!

Jon Lewis — Thu, 28 May 2009 08:12:00 GMT

Here is a little example of Alabama law which would probably irritate most people if they found themselves in the same situation. It involves a case decided by the Supreme Court of Alabama on May 15, 2009: Kendall v. United Services Automobile Association. The Supreme Court of Alabama ruled according to the law and found in favor of United Services Automobile Association (USAA Insurance).

In Kendall, an employee of Elmore County ran a red light and collided with Mrs. Kendall. Mrs. Kendall had substantial injuries and damages. In fact, her medical expenses exceeded $100,000. Mrs. Kendall made a claim against Elmore County and settled for the $100,000 cap which one may recover from a county in Alabama. She then proceeded to make a claim on her uninsured motorist portion of her insurance policy with USAA.

Uninsured motorist coverage protects you if the defendant does not have enough insurance or has no insurance. This was the case in Kendall because the $100,000 available from Elmore County was not enough to cover Mrs. Kendall's damages. However, the law says you must be "legally entitled to recover" from the defendant in order to recover on your uninsured motorist portion of your insurance policy. Since counties are capped at $100,000, you are not "legally entitled to recover" more than $100,000 from a county. Consequently, you cannot recover any of your uninsured motorist coverage on your insurance policy - which is what the Supreme Court said.

Does this make sense? You are paying premiums every month for uninsured/underinsured motorist protection, and yet, the insurance company is protected if the defendant is protected. This is also true if you run into a deer or a State vehicle. There are other situations as well. Does your insurance agent explain this to you? Of course not. It seems ridiculous, but it's true.

Originally posted at InjuryBoard by Jon Lewis

Wrongful Death Damages in Alabama

Michael Roberts — Wed, 13 May 2009 10:43:08 GMT

WRONGFUL DEATH DAMAGES IN ALABAMA

Damages awarded in wrongful death cases vary significantly from state to state. In many states, damages include lost income that the deceased person would have earned, economic value of a life, and grief or emotional distress suffered by the surviving family members.

In Alabama, however, the measure of damages is different. All damages for wrongful death in Alabama are considered punitive or exemplary due to a nineteenth-century Alabama Supreme Court precedent. This means that, when a wrongful death case is tried to a jury, the jury is told to consider that these damages are imposed for the preservation of human life and as a deterrent to others to prevent similar wrongs. The amount of damages should be directly related to the amount of wrongdoing or culpability on the part of the defendant.

An Alabama jury is permitted to recognize the sanctity of human life in considering the amount of a jury verdict. In determining the proper amount of a verdict for a defendant’s negligence, it may consider the ease with which the defendant could have avoided the death. Examples of this factor could include the ease with which a driver could have paid attention at a red light; a trucking company instituting a safety program to better train its drivers; or a manufacturer implementing an interlock safety device on a machine which is subject to causing injury.

Originally posted at InjuryBoard by Michael Roberts

Hydroxycut Kills and Injures!

Jon Lewis — Sun, 03 May 2009 22:23:21 GMT

The FDA has warned consumers to stop using the dietary supplement Hydroxycut. This drug is manufactured by Iovate Health Sciences, Inc., and they are recalling all of the Hydroxycut products. These include Max Drink Packets, Caffeine-Free Rapid Release Caplets, and Max Aqua Shed. The injuries involve the liver. There has been one death reported.

If you have taken these dangerous products, return them IMMEDIATELY!!! Why does this happen? Americans want the easy way out. We want the lazy way. We want to be entertained, and we want to do as little as possible to get what we want. We want easy money - gambling, lotteries (I'm not against these either). We want our sports. We want our movies. We want quick food (microwaves). We want more for less. And, more importantly, with respect to Hydroxycut, we want to lose weight without having to work for it.

How do you lose weight? Output greater than input. There is no secret. There is no miracle drug, or if there is, it usually kills or injures (see Phen fen). Exercise more than you eat. Eat in moderation. Work hard, and you will get there.

Originally posted at InjuryBoard by Jon Lewis