Michigan Personal Injury Blog - Negligence

Michigan's Wrongful Death Act Provides Compensation, Closure for Families

David Mittleman — Fri, 13 Nov 2009 12:31:00 GMT

It is always difficult when a family member dies. When a loved one passes away, it is quite common to feel grief and loss. Those feelings can be even worse when someone is taken out of our lives due to the carelessness or negligence of another.

Nothing can ever truly replace a relative lost forever. However, Michigan law does allow family members to receive fair and reasonable compensation when an individual dies as a result of injuries caused by someone else. Michigan's Wrongful Death Act permits the following people to recover certain damages:

The decedent's spouse
The decedent's children (and their descendants)
The decedent's parents and grandparents
The decedent's brothers and/or sisters
People entitled to recover a portion of the decedent's estate under law
People entitled to recover a portion of the estate under a will

Instead of compensating the decedent, the Wrongful Death Act is designed to compensate the surviving relatives and the estate for damages they have suffered. Therefore, damages are typically limited to:

Reasonable medical, hospital, funeral, and burial expenses
Conscious pain and suffering suffered by the decedent
Loss of financial support
Loss of society and companionship

The law also permits a jury or judge to award any other damages considered "fair and equitable under the circumstances."

Michigan's Wrongful Death Act is very complicated and detailed. It includes numerous procedural requirements that must be strictly observed. Our firm regularly handles this type of claim, and we may be able to help you if you have lost a family member due to the negligence of someone else.

Originally posted at InjuryBoard by David Mittleman

Campaign Sheds Light on Importance of Worker Safety

David Mittleman — Thu, 12 Nov 2009 09:26:28 GMT

As a worker, you should be able to go to work without fearing for your health or safety. Nevertheless, worker safety is an issue that is often ignored. However, the 16 Deaths Per Day campaign is dedicated to shedding light on the fact that employers who provide unsafe working environments for their employees are rarely ever prosecuted for a subsequent death of an employee.

Furthermore, the punishment for employer negligence is tantamount to a slap on the wrist. In fact, contribution to an employee’s death is only a misdemeanor, which carries a maximum prison sentence of six months and a maximum fine of $70,000. Unfortunately, under the Bush Administration, funding to the Occupational Safety and Health Administration (OSHA) was cut. Thus, OSHA was unable to inspect worksites suspected of providing unsafe working conditions. Furthermore, OSHA rarely ever referred cases of employer negligence to the Justice Department for prosecution, and employer fines for noncompliance were lowered even more.

A few current and past members of congress are hoping to change these current conditions: Lynn Woolsey and the late Ted Kennedy introduced a bill in April called the Protecting America’s Workers Act. The bill would help to strengthen worker safety laws and give OSHA the ability to inspect dangerous worksites and impose legitimate fines for non-compliance.

Please view the video below for further information and personal stories of how several employees were affected by employer negligence:

http://www.youtube.com/watch?v=pssw5bnjnr4

Originally posted at InjuryBoard by David Mittleman

Dangerous Prescription Errors Far Too Common

David Mittleman — Sat, 07 Nov 2009 10:29:00 GMT

Each year, over 3 billion prescriptions are dispensed in the United States. Patients depend on these medications for their well-being, and it is important that the dispensing pharmacy accurately fill each prescription with the correct drug and dosage. In addition, pharmacists and pharmacy technicians are under enormous pressure to keep costs low by filling high volumes of prescriptions quickly.

All of this adds up to a shockingly high risk for injury as a result of pharmacy error. A recent investigation into prescription error identified several potential pitfalls:

The pharmacy dispenses a drug other than that which was prescribed
The pharmacy fails to identify a potentially dangerous drug interaction
A pharmacist fails to counsel the patient about the drug
The dosage is incorrectly provided on the label

These are just four possible types of pharmacy error. While some errors may not result in any harm to the patient, those that do injure the patient present a very serious safety concern. According to some studies, perhaps as many as one in ten prescriptions result in a significant adverse outcome. By taking an active role in your health care and asking questions of your doctor and pharmacist, you may be able to avoid becoming a victim of pharmacy error.

Sometimes, even in spite of your best efforts, a pharmacy may make a mistake that causes you injury. The attorneys at our firm handle pharmacy negligence cases regularly and we may be able to help hold the pharmacy accountable for their actions. In doing so, we can help compensate you and help prevent such an error from happening again.

Originally posted at InjuryBoard by David Mittleman

AAJ Debunks Myths About Medical Negligence

David Mittleman — Thu, 05 Nov 2009 12:46:56 GMT

President Obama promised a floor debate on health care reform in the House, and now that promise is coming to fruition. The debate is sure to include the classic opponents of healthcare reform, including the U.S. Chamber of Commerce, as well as other tort reform proponents such as the asbestos, insurance, and pharmaceutical companies. However, one of the most problematic arguments used by these groups is that medical malpractice lawsuits are the basis for the rising cost of healthcare and that the answer is not healthcare reform. Instead, they argue that limiting “frivolous lawsuits” is the panacea to our country’s healthcare cost woes.

The American Association for Justice (AAJ), a trial lawyers group based Washington, D.C, recently released a 30-page report (pdf) outlining the pertinent arguments of the debate. Specifically, the five myths the AAJ outlines are:

Myth #1: There are too many frivolous lawsuits, and curbing the number of lawsuits would cut down the cost of healthcare.

The actual number of lawsuits filed per year is questionable. What most people don’t understand is that trial lawyers don’t have near the financial power that an insurance company does. Specifically, insurance companies can spend enormous, and seemingly endless, amounts of money to win a case. Plaintiffs’ attorneys, on the other hand, are on very tight budgets and must question the validity of every case that might come their way. Wasting money attempting to prove a case that doesn’t have merit is nonsensical, so plaintiffs’ attorneys aren’t scooping up every case possible, contrary to popular belief.

While the number of frivolous lawsuits is questionable, the number of medical negligence cases aren’t: in fact, according to the Institute of Medicine’s 1999 “To Err is Human” report, 98,000 people are killed in hospitals each year from preventable medical errors.

Furthermore, a Hearts Newspaper Group “Dead by Mistake” investigation into medical malpractice found that the number of patients affected was closer to 200,000, when hospital-acquired infections were taken into consideration.

Are all of these individuals affected by medical negligence flocking to file lawsuits? Apparently not: according to a Harvard study, only 1 in 8 people injured by medical negligence filed a malpractice claim.

Other myths included in the AAJ report include:

Myth #2:

Malpractice claims drive up the cost of healthcare

Myth #3:

Doctors are fleeing

Myth #4:

Malpractice Claims Drive up Doctors’ Premiums

Myth #5:

Tort reform will lower insurance rates

For additional information on the myths surrounding healthcare reform and the costs of healthcare, see AAJ's "Debunking the Myths".

Originally posted at InjuryBoard by David Mittleman

Immunity for Emergency Room Care Is A Deadly Costly Mistake

David Mittleman — Thu, 01 Oct 2009 12:20:00 GMT

Proposed Michigan Senate Bill 858 (SB 858)(PDF file) could forever alter the quality of care in Michiagn Hospital Emergency Rooms, resulting numerous devastating consequences for Michigan patients, taxpayers, and interested parties.

SB 858 may appear on the surface as an attempt to diminish medical malpractice lawsuits, but when you stop for a second and think about the ramifications of what this legislation would do - the price is too high for the residents of Michigan.

SB 858 would require a plaintiff to show that an emergency room physician committed "gross negligence" and would have to prove that through "clear and convincing evidence." The major problem with that standard is that it would lower our expectations of care in Michigan Emergency Rooms because there would be immunity for any wrongdoing unless it was intentionally done or the action was done with reckless disregard for a person's safety. Another consequence that must be considered is the disproportionate weight this bill would have on the care of the people who are most vulnerable - namely those folks who need to treat regularly in emergency rooms such as infants, seniors, pregnant women, minorities, and the poor.

At some point, we will all likely have to go to the emergency room. The last thing you will want to worry about while you are awaiting your emergency care is whether or not the care you are about to receive has been compromised as a result of SB 858.

And for those of us who worry about the financial security of state government, realize that this bill almost guarantees that Michigan will never get reimbursed for the Medicaid payments it makes to individuals who are injured as a result of emergency room medical negligence. 42% of all people who enter an emergency room in Michigan are covered by Medicaid. Under the laws we have today, if they are injured by a medical professional's negligence, and Medicaid continues to pay subsequent hospital bills, Medicaid has a right to reimbursement when that person recovers in a medical malpractice lawsuit. The state gets its money back. But, if SB 858 gets passed, the state deficit will continue to grow.

Contact your state representatives and senators and let them know how you feel about SB 858. Tell them you are concerned that the cost of providing this form of immunity is too high for Michigan.

To find out who your state senator is go to this website.

To find out who your local representative is go to this site.

Lansing. If you live in the Lansing/East Lansing area, your state representative could be either Joan Bauer, Mark Meadows, Barb Byrum, or Rick Jones.

If you live in the greater Lansing/East Lansing area, your state senator is likely Gretchen Whitmer.

Originally posted at InjuryBoard by David Mittleman

Slip and Falls and the "Open and Obvious" Defense

Timothy Smith — Thu, 17 Sep 2009 17:12:29 GMT

Over the last few years Michigan courts have gone out of their way to throw plaintiffs out of court. Even "Black Ice" which by its very nature can't be seen, was looked at as "Open and Obvious" which allowed a court to dismiss valid claims against business owners who failed to keep their premise safe for those that were invited to shop in their store. A recent decision seems to swing the state's jurisprudence in favor of the injured once again.

In the matter of Janson v. Sajewski Funeral Home, Inc, Plaintiff Janson slipped on black ice and fractured his right ankle. Defendant Sajewski claimed that because of the cold conditions and light precipitation that this black ice was "open and obvious" thus relieving the defendant of liability under a negligence theory.

Under a negligence cause of action:

a plaintiff must prove: (1) the defendant owed a duty to the plaintiff, (2) the defendant breached that duty, (3) the defendant’s breach caused the plaintiff’s injuries, and (4) the plaintiff suffered damages.”

If a dangerous condition is open and obvious then there can be no duty owed by the defendant because it would be reasonable that a person would simply avoid it. This is a common defense for many business owners.

The court here rules however, that most people in Michigan know that ice can persist even when it is not visually apparent. The defendant's operator in the Jason case even testified that it seemed slippery where Janson fell even though he had salted the parking lot earlier. Additionally, there was no snow in the area and the roads had already been salted by a truck. Therefore, "in the absence of some other, visible indicia of an otherwise-invisible hazard, black ice per se simply cannot be “open and obvious.” The court reversed the initial ruling that the open and obvious doctrine applied. For those injured this was an important battle that fortunately looks to be a return to a common sense approach to the law by our Court of Appeals.

Originally posted at InjuryBoard by Timothy Smith

Wal-Mart to be fined for poor planning that led to employee's death

David Mittleman — Thu, 28 May 2009 10:00:00 GMT

OSHA may soon “stomp” the world’s largest retailer with a $7,000 fine for a stampeding incident that occurred on November 28, 2008 in Long Island, New York, during Walmart’s post-Thanksgiving sale. The bargain shopper’s paradise is charged with poor crowd management, which led to overly eager shoppers crushing a temporary employee who ultimately died of asphyxiation.

The $7,000 fine is the maximum amount allowed, and is levied only for serious incidents that result in death or physical harm because of an employer’s negligence in planning for foreseeable hazards. Walmart disagrees with the potential OSHA citation, claiming that there was no way for them to prevent the disaster. Regardless, the $7,000 fine pales in comparison to Walmart’s estimated revenues of $23,000 a minute.

Originally posted at InjuryBoard by David Mittleman

Brighton Woman Charged Under Michigan’s Kids in Cars Law

David Mittleman — Fri, 15 May 2009 08:27:00 GMT

Yesterday morning, Michigan Governor Jennifer Granholm conducted a ceremonial signing of the Kids in Cars law. The law has been in effect in Michigan since April 1, 2009. The law makes it illegal for children under the age of 6 to remain unattended in a car.

Just last week, a 38-year old Brighton woman was charged under the new law. Police responded to a call from Best Buy workers who noticed that the woman was buying around $500 worth of DVD’s and computer equipment with a fraudulent credit card. When the police escorted the woman to her car, they noticed her 6-month-old son, who was left in the car for over an hour.

The law charges violators with a misdemeanor, punishable for up to 93 days in jail and a $500 fine. While forgotten baby syndrome can happen to anyone, hopefully the imposition of fines and jail time will make parents think twice before leaving a child behind.

Originally posted at InjuryBoard by David Mittleman

$3.1 Million Jury Verdict Awarded to Drunk Driving Victim’s Family

David Mittleman — Wed, 13 May 2009 16:35:07 GMT

A LeHigh County, Pennsylvania jury awarded a victim’s family and estate a $3.1 million verdict last Friday, after she was killed by a drunk driver on the evening of her 25^th birthday. The victim, Sheena Marie Villa, pleaded with the driver of her vehicle, 30-year-old Robert E. LaBarre, to slow down as he drove 85 mph, lost control and crashed into an oak tree.

The jury did not find the bar that was serving LaBarre liable. Instead, they found LaBarre 85% at fault and Villa 15% at fault. They awarded the family $1.1 million in compensatory damages and $2 million in punitive damages. LaBarre is currently serving a 5 ½ to 12 year sentence for vehicular homicide.

Originally posted at InjuryBoard by David Mittleman

A family's legal remedies when a loved one dies from someone's negligence

David Mittleman — Fri, 01 May 2009 12:14:15 GMT

If tragedy strikes and one of your relatives dies as a result of someone’s negligence, Michigan’s wrongful death statute permits the family of the lost loved one to bring forth a lawsuit against the person or persons who caused the untimely death or the corporations who would also be liable for the negligence of their employees.

Under the law, the people entitled to monetary damages resulting from the wrongful death of a relative are the (1) spouse, (2) children, (3) grandchildren, (4) parents, (5) grandparents, and (6) brothers and sisters of the deceased, as well as (7) the spouse’s children (the deceased’s step-children). These are the parties of interest to the deceased’s Estate.

Michigan law does not permit boyfriends, girlfriends, ex-spouses, children of ex-spouses (unless legally adopted) or friends to file a wrongful death lawsuit.

Such a lawsuit has to be brought forth by a Personal Representative, who acts in the interest of the deceased person’s Estate. The attorney who handles the lawsuit can also help you establish a Personal Representative (sometimes the spouse of the deceased, other times a neutral third-party).

The types of damages the parties of interest may receive as a result of a settlement or jury verdict are (1) monetary damages for lost economic services the deceased would have provided had he not died (lost income, lost household services), (2) all reasonable medical, hospital, funeral, and burial expenses for which the Estate is liable, (3) monetary damages for the pain and suffering of the deceased after the negligence, but before his death, and (4) monetary damages for the pain and suffering endured by the relatives of the deceased.

Originally posted at InjuryBoard by David Mittleman