Alabama Personal Injury Blog - Negligence

New Website to Help Families Learn About Nursing Homes

Billy Cunningham — Sat, 14 Nov 2009 08:40:00 GMT

The National Citizens for Nursing Home Reform (http://www.nccnhr.org/ ), a consumer advocacy group for nursing home residents and caregivers in nursing, homes, announced that the Brown University Center for Gerontology and Healthcare Research has introduced a website designed for nursing home researchers that provides data on nursing home care in the US. The website states that its goal is to allow researchers to trace relationships between state policies, local market forces and the quality of long-term care and enable policymakers to craft state and local guidelines that promote high-quality, cost-effective, equitable care for older Americans. NCCNHR believes the site will also be enthusiastically received by many consumer advocates looking for detailed data and more sophisticated comparison tools than provided on other website such as Nursing Home Compare.

The interactive database, www.LTCfocUS.org, incorporates information from a number of government sources-Medicare reimbursement claims, OSCAR (CMS's Online Survey, Certification and Reporting system), the MDS (Minimum Data Set), and Brown's own survey of state Medicaid policies Users can interact with the website by creating interactive maps and tables with comparative information about states, counties, or individual nursing homes. All data provided on the website are also available to download.

The website provides the type information that users can employ to choose up to five variables. It allows the user to create a chart comparing all nursing homes in a state. The broad range of variables from which to choose includes number of beds; for-profit and chain status; percent of Medicare and Medicaid beds; Alzheimer's units; occupancy rates; age ranges, gender and race of residents; direct care staffing (RN, LPN, CNA); acuity of care; certain MDS quality measures; source of admissions (hospital or home); and 30-day rehospitalization rates (a potential indicator of quality not found on Nursing Home Compare).

The website is sponsored by the National Institute on Aging-funded Shaping Long-Term Care in America project housed at the Brown center. While its stated purposes are to "allow researchers to trace clear relationships between state policies and local market forces and the quality of long-term care" and to allow policymakers "to craft state and local guidelines that promote high-quality, cost-effective, equitable care to older Americans," NCCNHR recommends that consumer go to this site to perform their researches about nursing homes in their areas before placing a loved one there. The more you can know about your options for placing loved one in a nursing home , the better equipped you'sll be to help prevent any nursing home negligence or abuse.

Originally posted at InjuryBoard by Billy Cunningham

Loser Pays - A Bad Idea

Danny Feldman — Tue, 10 Nov 2009 07:53:15 GMT

When I was a law student at Vanderbilt, a contracts professor asked a question about whether the "loser" to a lawsuit should be required to pay the "foreseeable costs," ie. the winner's attorney fees. I argued "yes" given that the costs were foreseeable. I was wrong.

This argument, loser pays, really is nothing more than a way for business, insurance companies etc. to shut the doors to the courthouse to the vast majority of Americans who could never be able to afford to pay the tens or thousands of dollars that the other side may incur in attorney fees. Indeed, the reason why contingency fee contracts are regularly employed when representing injured persons is that those persons can't afford to pay their own lawyers an hourly rate. For example, a truck crashes into you, putting you in the hospital for months and causing you to lose your job and health insurance - how in the world will you be able to pay the other side's legal fees if you end up losing the case - and it must be remembered, that even when you are rear-ended, juries can still return a verdict for defendant.

In Alabama, the scale already is tipped very unfairly in favor of defendants. Under ARCP 68 a defendant may file an "Offer of Judgment" which plaintiff has 10 days to accept. If plaintiff does not accept the offer and if at trial, plaintiff does not receive a verdict in excess of the offered amount than plaintiff is on the hook for defendant's costs incurred after the Offer of Judgment was made. In other words, if defendant files an offer of judgment of $10,000 and the jury returns an award of $9,000 for plaintiff, the Court may tax costs (say $5,000) against plaintiff despite the fact that the jury returned a verdict in plaintiff's favor. There is no similar provision in the law that allows plaintiff to make an offer of judgment whereby defendant is on the hook for plaintiff's costs incurred if the jury returns a verdict for plaintiff in excess of what plaintiff offered to settle for. Nor does the rule allow plaintiff to collect costs against defendant if a jury returns a verdict in excess of what defendant offered. How's that for fairness?

As a matter of practice, I would be very surprised if an Alabama judge would enforce Rule 68 as described above, although they could. In addition "costs" do not include attorney fees, but rather are limited to actual costs incurred, like deposition bills, mileage etc. Of course, even costs can run up into the thousands of dollars very quickly, and it is the client that is on the hook for costs. So, you've got to tell your client, not only can you lose, but you also can lose and owe the other side thousands of dollars.

There are several other reasons why "loser pays" is a bad idea - but shutting down the courthouses to the vast majority of Americans is enough.

Originally posted at InjuryBoard by Danny Feldman

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

What Is A Statute Of Limitations?

Michael Roberts — Mon, 13 Jul 2009 16:33:53 GMT

If you might have to file a lawsuit on any type of claim, whether it involves an injury from an accident, or a debt that someone owes you, it is very important to be mindful that there are deadlines for filing of a lawsuit.

Each state has a different set of rules, and there are many different deadlines, depending on the type of case. For example, in Alabama, the deadline for filing a negligence claim is generally two years from the date of the accident on which the negligence claim is based. A claim for breach of contract, however, is generally longer. There are rare exceptions that can sometimes apply to change the deadlines imposed by statutes of limitations. For example, sometimes a minor child will have a longer period of time in which to file a suit than an adult.

When a governmental entity, such as a city or county is involved, there can be deadlines which are even shorter than the statute of limitations. For example, in Alabama, a verified claim must be filed with the city clerk within six months from the date the claim arises (which generally would be the time of the accident, if it is an accident case), and a claim against a county must be filed with the county commission within one year.

In Alabama, a suit for worker’s compensation benefits must be filed within two years from the date of the accident, although there can be an extension if the employer or the worker’s compensation insurance company makes payment of compensation benefits after the accident.

There are also certain situations where there are statutes of “repose” or rules of “repose” which can create other, and different deadlines, some of which operate very harshly upon the rights of someone who is injured because of a condition created a long time earlier.

Because of the complexity of the rules and exceptions dealing with statutes of limitations, claims requirements, and other laws, anyone who may have to file a lawsuit should obtain legal advice as early as possible. For further discussion of Alabama’s statutes of limitations, see Alabama Tort Law, 4th Edition, Chapter 46.

Originally posted at InjuryBoard by Michael Roberts

Teen threatens to sue for falling in sewer while texting

Danny Feldman — Mon, 13 Jul 2009 09:13:10 GMT

This is the kind of headline that tends to aggravate reasonable people. Apparently, a New York teen fell into a sewer while she was texting. See story at: http://www.msnbc.msn.com/id/31853449/ns/local_news-new_york_ny/?GT1=43001 City personnel had removed a manhole cover while they were flushing out the sewer. Fortunately, the teen suffered only scrapes and bruises. Her mother now is promising to sue.

I don't know about the law in New York, but in Alabama, this young lady will find it very difficult to get any lawyer to take her case because, quite frankly, it's a loser.

First, even assuming that the City was negligent, and it sounds like they were given that pedestrian traffic should have been diverted when the manhole cover was taken off, or failing that, they should have placed cones or warning signs around the uncovered hole to prevent someone from falling in - the teen cannot recover if she too was negligent, and her negligence was a proximate cause (but for cause) of the incident. In other words, even though the City was negligent, because the texting teen also was negligent, there will be no recovery. I simply do not believe that many plaintiff lawyers will conclude that they can convince 12 out of 12 jurors that being oblivious to your surroundings because you are busy texting (even something as important as where you are planning to "chill" later on) is not negligent conduct and that but for that conduct the incident would not have happened.

Can this teen sue? Sure. Is she likely to find a lawyer willing to work on this matter with almost no chance of recovery? Pretty unlikely. If she does sue, will the suit result in her receiving any money? At least in Alabama (and I suspect the same is true in New York as well), the chances are virtually nil.

Originally posted at InjuryBoard by Danny Feldman

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

Under what circumstances may someone recover money damages for emotional distress?

Michael Roberts — Wed, 24 Jun 2009 15:09:56 GMT

The law varies depending on the jurisdiction, but many states permit such recovery. In Alabama, for example, damages for mental distress that accompanies a physical injury may be awarded by a jury where a person was wrongfully hurt. Thus, the worry and depression related to a disc herniation and its consequences can be the subject of a verdict award. Where there is no physical injury, and the other party is guilty of negligence, Alabama follows a "zone of danger" rule adopted by the Alabama Supreme Court in 1998. Under this rule, a company or person who negligently puts a person in immediate risk of physical danger (such as causing a fire from which a person escapes without an actual burn) is responsible for mental distress or mental anguish.

"Intentional torts" (where a party's conduct is worse than mere negligence, such as intentional assault, defamation, fraud or misrepresentation) can also warrant mental distress damage awards. In Alabama, breaches of certain types of contracts, such as some related to homes, can be the foundation of emotional distress damages. (For further discussion of cases, see Alabama Tort Law, 4th edition, Lexis Law Publishing.)

Originally posted at InjuryBoard by Michael Roberts

If I slip or trip and fall can I sue?

Danny Feldman — Tue, 23 Jun 2009 08:31:39 GMT

Every time someone falls down, people make jokes that the injured person will end up "owning the place." What does the law say about a premise owner's potential liability if someone falls on your property?

In Alabama, and a few other states, it depends on the right, or lack thereof, that the person who fell had to be on the property. For example, the duty of a premise owner to someone who is trespassing on their property is very, very low. On the other hand, if someone is a "business invitee" - that is, if someone is on the property to benefit the property owner (like a customer of the store or restaurant) then the premise owner has a higher duty. However, that duty basically is not to be negligent - or in other words, to act as a reasonably safe business owner would act in similar circumstances.

Let's take a look at a couple of examples. Say you visit Wal-Mart or any store for that matter and another customer walking directly in front of tosses the proverbial banana peel. With your next step, you slip on it and break your neck. Can you sue Wal-Mart? Sure. Will you win? Absolutely not. You must show more than the fact that you fell on the store's premises and that you got hurt. You must show that the store was negligent. In the example above - what did the store do that was unreasonable? Not a thing. So, while you may have a claim against the person that tossed the peel (good luck recovering on that, unless the person happens to be Donald Trump or someone else of personal means) you do not have a claim against the store.

Let's vary the facts a bit. The same customer tosses the banana peel 8 hours before you enter the store. A manager sees it 15 minutes later and instructs an employee to clean it up. The employee gets distracted and does not do it. A couple of hours go by and the manager sees the peel again. He means to get on the employee for not picking up the peel, but he too gets distracted. Another couple of hours go by. Several other managers and employees see the peel, but do not remove it. You don't see the peel; slip and fall and break your neck. Negligence? Maybe - it'll depend on what the jury thinks. Was it reasonable for the store to leave the peel on its floor for 8 hours? Does the peel constitute a dangerous or hazardous condition? What about the customer - shouldn't he have seen and avoided the peel?

In my next blog, I'll address in more detail some of these issues and "affirmative defenses" So, the answer to the question is "yes" - if you fall you can sue, however, whether your lawsuit has any reasonable chance of success is another matter entirely.

Originally posted at InjuryBoard by Danny Feldman

Fairness in Nursing Home Arbitration Act Does Not Become Law

Billy Cunningham — Sat, 30 May 2009 09:05:53 GMT

In January I wrote a blog on S. Bill 2838, Fairness in Nursing Home Arbitration Act. This bill never became law. The last action taken by the Senate on the bill was in September when it was reported favorably out of committee and then on October 1, 2008, it was placed on the Senate Legislative Calendar under General Orders. Calendar No. 1109. This bill has now been proposed in previous Sessions of Congress last two years. At the end of each session all proposed bills and resolutions that haven't passed are cleared from the books. The bill was never debated by the Senate. This means the bill will have to be reintroduced under a new number in the next session.

The bill was sponsored by Sen. Mel Martinez [R-FL] and co-sponsored by Sen. Patrick Leahy [D-VT], Sen. Russell Feingold [D-WI], Sen. Richard Durbin [D-IL] and Sen. Herbert Kohl [D-WI]. I would urge all you to contact your Senators and Congressmen before the next session and urge them to get this bill reintroduced and passed.

Nursing home abuse continues and arbitration is not the way to handle these cases. When loved ones are put in nursing home today the facility often presents a series of documents to be signed in order for the family member to be admitted. Often stuck in the middle of all those is an arbitration agreement. I have never seen one drafted that is designed to favor or even equally treat the resident. Those agreements are signed by residents with dementia who do not have the capacity to enter into any other kind of contract. Or they may be signed by a family member who does not have a power of attorney or court appointment authorizing them to enter into contracts on their behalf. The nursing home does not care who signs them- it is just part of a process. That process is not in the best interest of the resident. I have seen forged signatures on nursing home arbitration agreements and had one facility admit it forged the signature.

One way to protect against this happening is for everyone to have a power of attorney that prohibits the attorney in fact from entering into any contract that has an arbitration clause or agreement in it. Here is an example of the clause that should be in every power of attorney:

“NO POWER TO AGREE TO BINDING ARBITRATION. Although I have given my attorney-in-fact this general and durable power of attorney, I specifically withhold from my attorney-in-fact the power to agree or consent to binding arbitration, or to agree to any other process that would preclude the right to have a jury decide any issue in controversy concerning my person or my property; this does not, however, preclude non-binding alternative dispute resolution processes such as mediation. “

There are things we can all do to protect our loved ones in nursing home. Let’s start a letter writing campaign now to get the Fairness in Nursing Home Arbitration Act reintroduced and passed.

Originally posted at InjuryBoard by Billy Cunningham

Buzzing a Cyclist is Dangerous

Danny Feldman — Thu, 09 Apr 2009 16:28:39 GMT

This is a continuing blog regarding dangerous/annoying behaviors by motorists. Anyone who has done much bicycling has been "buzzed." In a nutshell, buzzing is a motorist driving too close to a cyclist. This behavior almost always is a deliberate decision made by the motorist and very often is accompanied by high speed. It seems that it often is an act of a driver that is fed up with having to share the road with a cyclist.

Cyclists have a right to the road, and although some motorists do not realize it, cyclists llegally are considered traffic, and thus not only have rights, but obligations as well. One of those obligations is to ride in the same direction as other traffic (cars and trucks). To ride against traffic, as some people inexplicably believe is what cyclists should do, would be extremely dangerous to the cyclist and motorist as bicycles would show up where motorists least expect them, ie. headed directly toward a car.

Of course, a cyclist going in the same direction as a motorist, as a general proposition, will be moving at a slower rate of speed than the motorist, meaning that the motorist will have to pass the cyclist. Its in these passing situations that some motorists feel the need to express the anger at having had to slow down for a few seconds and thus go blowing by a cyclist at 60 mph and 3 inches away. Obviously, the slightest mistake by the motorist (or the cyclist) may mean a dead or injured cyclist. Given that a motorist traveling at 60 mph is moving at a rate of 88 feet per second, almost 30 yards/second, even if the cyclist has a rear view mirror, the cyclist often will never even see the motorist approaching and will be completely unaware of the approaching vehicle until the car is inches away. If there is an imperfection in the road, causing the cyclist to move a few inches to the left, then a wreck will occur. Sometimes the motorist misjudges the distance and what was meant as a "buzz" becomes a wreck.

Some states, I believe Tennessee and Florida, are two such states require that passing motorists not come within 3 feet of a cyclist. I don't know how well or how often these laws are enforced, but given the tremendous harm that can occur when a buzz takes place, I do believe these laws are appropriate.

Mistakes on the road happen. What is so galling to cyclists is that the cyclist is the one that is going to get hurt and the motorist's behavior is intentional.

Originally posted at InjuryBoard by Danny Feldman