Michigan Personal Injury Blog - attorney

Disbursing Funds under Michigan's Wrongful Death Statute

Timothy Smith — Sun, 22 Nov 2009 15:01:22 GMT

Recently, we've resolved a number of wrongful death cases here in Northern Michigan. In Michigan, these types of cases are governed by a statute that controls every aspect of the case, including how the recovered funds are distributed to the family members that survive the deceased. One of the families that I represent asked me to explain to them how the distribution of the monies we recovered would take place.

In order to fully answer their question, I turned to Andrew Shotwell, a probate specialist with my office here in Traverse City, Michigan. I asked Andrew to draft an informative letter to the family to answer the question and thought I'd share the substance of it with my readers in case they were facing a similar issue.

The procedure and applicable law depends on various facts. First, if a complaint has been filed in circuit court, the distribution is governed by MCL 600.2922. Essentially under that statute, if no conscience pain and suffering was present or to the extent an award is for other than conscience pain and suffering, the circuit can distribute under 600.2922. The Court approves distributions “to those…who suffered damages and to the estate of the deceased for compensation for conscious pain and suffering, if any, in the amount as the court or jury considers fair and equitable considering the relative damages sustained by each of the persons and the estate of the deceased.”

If there is conscience pain and suffering awarded, the award passes to the estate and is distributed in accordance either with the decedent’s last will and testament, or by intestate succession [this is the law that governs how an individual's estate passes when they have no will]. There is no precise formula for determining the damages for the loss of a loved one’s society and companionship. In re Claim of Carr, 189 Mich App 234, 471 NW2d 637 (1991). The measure of damages is gauged by the relationship the decedent had with the claimant, including the amount of time the decedent and the claimant spent together. McTaggart v Lindsey, 202 Mich App 612, 509 NW2d 881 (1993).

If a complaint has not been filed and settlement has been reached, the distributions occur pursuant to MCL 700.3924, which is similar to 600.2922, requiring the distributions to be fair and equitable. The persons entitled to notice and an opportunity be heard in a wrongful death case under both 700.3924 and 600.2922 are as follows:

1) The deceased's spouse, children, descendants, parents, grandparents, brothers and sisters, and, if none of these persons survive the deceased, then those persons to whom the estate of the deceased would pass under the laws of intestate succession determined as of the date of death of the deceased.

2) The children of the deceased's spouse; and

3) Those persons who are devisees under the will of the deceased, including beneficiaries of a trust under the will, those persons who are designated in the will as persons who may be entitled to damages under this section, and the beneficiaries of a living trust of the deceased if there is a devise to that trust in the will of the deceased.

In any case, an estate would need to be opened with the probate court in the county of residence for the decedent. If a will exists, it is submitted to probate and a Personal Representative appointed, as nominated in the will. If no will exists, or the will fails to nominate a Personal Representative, the Court will appoint one according to the priority schedule, starting with the surviving spouse. Notice is required to be sent to all the people indentified above as having an interest in the distribution.

Once a settlement or an award has been granted, if all of the potential distributees are competent, nondisappeared adults, they may stipulate to a specific distribution scheme. If all of the interested persons stipulate to a proposed allocation, the court must order that distribution. However, if a disagreement exists, a hearing would be required.

If a minor is involved a guardian ad litem may be required to advocate on the minor’s behalf.

If after reading this summary of the approaches to distribution under the wrongful death statute, you still have questions, feel free to shoot me an email or call with further questions.

In my next article, I'll address and give some examples of what happens when the family can't agree on the distribution and an evidentiary hearing is required.

Originally posted at InjuryBoard by Timothy Smith

CVS Pharmacy Settles with NY Officials After Selling Expired Products

David Mittleman — Wed, 11 Nov 2009 10:33:31 GMT

New York Attorney General, Andrew Cuomo, recently announced that CVS Pharmacy, Inc. has agreed to pay $875,000 in settlement costs after the company sold expired products. The officials discovered that CVS was selling expired products, including food, medicine, and baby formula, after canvassing 60% of CVS stores across New York State. Some of the expired products were over 2 years outdated.

CVS has had similar problems in the past: in fact, the lawsuit accused the company of breaching a prior agreement with New York officials to stop sales of expired products. CVS spokesman, Mike DeAngelis, recently stated that the company is committed to keeping expired products off of store shelves. However, he declined to admit any wrongdoing and also added that he is unaware of any customers who were harmed from using expired products.

Cuomo experienced similar problems with other stores in the past. The most recent case involved Rite Aid, which settled with New York officials in 2008.

Originally posted at InjuryBoard by David Mittleman

Michigan Medical Malpractice Claims Fraught With Obstacles

David Mittleman — Wed, 04 Nov 2009 15:58:00 GMT

Most of us know little or nothing about the practice of medicine. When we go to our doctors, for everything from a routine checkup to a serious emergency, we trust in them to conduct a proper and thorough examination and to formulate an adequate plan of care. Sometimes, as a result of the carelessness or inattention of the physician or other medical provider, a patient is harmed rather than healed.

Doctors and other medical providers have a legal duty to provide patients with treatment that meets the "standard of care." In layman's terms, the standard of care is what an ordinary and prudent doctor should do in a given situation. If a doctor breaches the standard of care, and the patient is injured as a result, the doctor has committed medical malpractice.

Medical malpractice is more than just a breach of duty, it is a betrayal of trust. However, Michigan law can make it very difficult and expensive for victims to hold the at-fault doctors accountable. There are numerous procedural requirements demanded by law that must be strictly followed. Failure to follow these rules precisely could (and often does) result in the dismissal of an otherwise valid medical malpractice claim. Injured victims have only two years to bring a claim for malpractice, while victims of other types of negligence have three years. Moreover, the victim is required to procure the testimony of other doctors in order to prove his or her case. This is an expensive requirement, and the injured person's doctors must have exactly the same credentials as the at-fault doctor or the claim may be dismissed.

In Michigan, even if a victim of medical malpractice can satisfy all the procedural requirements and prevail in court, their level of compensation may be limited. Medical malpractice damage caps operate to prevent severely hurt patients from fully recovering for their injuries.

Our office handles medical malpractice claims regularly, and our attorneys have extensive experience navigating Michigan's legal obstacle course. If you suspect that you or a loved one is a victim of medical malpractice, contact our office to see if we can put our expertise to work for you.

Originally posted at InjuryBoard by David Mittleman

What's the big deal with my deposition?

Devon Glass — Thu, 22 Oct 2009 18:16:32 GMT

In a continuing series on the ins and outs of personal injury claims, beginning with what to do immediately after the injury up until you let a jury of your peers decide, it's time to discuss what a deposition is and how it impacts your case.

When the time comes for you to have your deposition taken, you have already retained an attorney and a lawsuit has already been filed. There has also been discovery, or an investigation of the facts surrounding your injury and what treatment you've received since being injured. You've also answered interrogatories about where you lived, what happened in the accident, and what medical treatment you've had since you were born. Well, maybe not that far back, but if it were up to the defendant's attorney you would have to tell them every single time you went to a doctor for anything. Thankfully, that's not the case.

Now that all the attorney's know what happened in your case that caused your injury and what kind of medical treatment you've had as a result, the attorney's representing the defendant have an opportunity to ask you a whole bunch of questions on all the material they already know. It seems kinda crazy that you have to sit through it when you first think about it, but after this article it should hopefully make sense. I mean, if they already know the answers, why do they need to ask you a whole bunch of questions?

The basic point of a deposition is to allow the attorney to delve deeper into what answers already exist to get more context for the information they already know. The other, more important in my opinion, reason for a deposition is so the defendant's attorney can figure out what kind of person you would be when sitting in front of a jury. They may know the factual answers and what happened, but what happened is almost as important as how you tell the story. I'll explain that in a bit more detail soon.

Back to the basic purpose of the deposition. When you answer interrogatories with simple answers, there is likely many other things that could be related to that answer. If you say you were treated 5 years ago at the Mayo clinic, the defendant's attorney would likely want to know what you were treated for and if there is any relationship between that prior treatment and your current injury. Maybe you broke your ankle 5 years ago and you also broke the same ankle in an automobile accident. The prior injury is relevant because you may not have fully healed from that injury, or it could have been treated improperly, or you may not have gotten any treatment other than an initial evaluation and failed to follow up as recommended by your doctor. That's just off the top of my head. The answer to one question can often lead to dozens of further follow up questions.

Often times information is not available at the time you are answering interrogatories or it's been a while since you answered them and the defendant's attorney is interested in learning more about what's currently happening with regard to your injury. There may also be an important dispute with regard to who is at fault for your injuries. Were there any witnesses, did you and the defendant exchange any words after the incident, maybe the defendant believes you or someone else did something to cause the accident and your testimony can help clear things up.

That's the most basic thing about what a depositon is designed to accomplish, the explanation of what happened, what injuries you sustained and how it's affected your life. I like to think about the deposition process as the chance to tell your story. You are the center of the lawsuit and your ability to recover damages from a jury or in the form of a settlement depend heavily on your testimony.

It's not just what you have to say with your words, it's also how you say your words and what you look like when you say them. I tell all my clients they should be polite, curteous, and do the best they can to not get upset or angry at the process. The reason I make these suggestions is because if a defense attorney knows you are a hot head or appear impolite when asked question, it can indicate to them what a jury might think of you. If you appear as someone who easily flys off the handle, a defense attorney is going to know to offer you a low settlement because a jury is likely to dislike you personally, and if that's the case you don't have much hope for your case. There are, of course, certain times when it's appropriate to be upset at questions posed by the defense attorney, but if you refuse to answer questions or scoff at relatively simple questions, a jury is likely to find difficulty connecting with you as a person. Once the jury fails to see you as a sympathetic person, they will work very hard to deny you any award of damages because they have already decided you are one of "those" people who is only out for the money, regardless of how true that is.

Lawsuits are emotionally difficult proceedings and it's often easy to let your emotions get a hold of you, but it's important to try and respect the process as best as possible. This is not a suggestion that you be a cold, uncaring individual during your deposition. It's only a suggestion to be as polite and sympathetic as possible under the circumstances. If you feel that you are starting to lose your cool during your deposition, let your attorney know you need to take a break to cool off. You don't have to sit there the entire time, it's okay to take a break.

This is what I mean when I mentioned earlier that your appearance is just as important as what you say. If a jury or defense attorney believes you have a sense of entitlement to an award of damages, they will be reluctant to give you anything. If, on the other hand, you respond politely and curteously to the questions, it will be easy for a jury or defense attorney to find you personable and likeable, thereby increasing the chances you will be awarded damages or a reasonable settlement.

The most important thing to remember about depositions is to always tell the truth. The only wrong answer a person can give in a deposition is a lie, and that can sink your case faster than anything else. Make sure not to exaggerate your claims, it will do you no good to make it seem like you are worse off than you actually are and people will not sympathize with someone they see as stretching the truth. Don't argue with the defense attorney about the way a question is asked or whether the question is relevant, that's for your attorney to decide. That's why you've hired an attorney, to look out for you and your interests in the lawsuit. Your attorney will know when to allow you to answer a question or if a question is not allowed to be asked by placing an objection.

I could go on and on, but that's the basics of a deposition and it's impact on your case as I see it. I agree with Rick Shapiro that the deposition is the most important part of your case.

Here are a number of good injury law blog posts from my Injuryboard colleagues:

I was in an automobile accident. What should I do? Ten Tips For Hawaii Drivers, Wayne Parsons on September 14, 2009 - 3:59 AM EST.

What would a caveman bring to meet with the lawyer?, Steve Lombardi , September 15, 2009 11:00 AM

Solving Legal Problems, Being a Client, Back to the Basics, Steve Lombardi , September 15, 2009 8:48 AM

Car Accident Injury Client: What Makes the Case Good or Bad? (The Collision & Medical Care) , Rick Shapiro September 16, 2009 9:38 AM

Being a Client: More Tips To Help Improve Your Case If You've Been In An Car Accident , Devon Glass , September 17, 2009 8:39 AM

Presumed Guilty: How to Avoid Having Insult Added to Injury When You’ve Been Hurt in a Car Crash, Pierce Egerton , September 18, 2009 4:28 PM

What To Do After An Accident When The Adjuster Is There First, Mike Bryant, September 19, 2009 6:26 PM

What Questions Is The Lawyer Going To Ask Me At The Initial Interview For My Injury Or Death Case?, Wayne Parsons , 20 September 2009 12:01

What makes a case good or bad?, Steve Lombardi, 21 September 2009 12:57 PM

What To Do After An Accident When The Adjuster Has A Tape Recorder, Mike Bryant , September 23, 2009 10:01 PM

Do I have a good or a bad case?, Devon Glass, September 24, 2009

What are interrogatories and how do I answer them?, Steve Lombardi, September 29, 2009

Interrogatories: A Written Deposition , Devon Glass, September 30, 2009

How Do You Value Your Case? Mike Bryant October 03, 2009 9:29 AM

Demystifying Injury Litigation for Clients: What Are Interrogatories?, Rick Shapiro ,October 3, 2009

Do only dishonest people refuse to give a recorded statement? Steve Lombardi | October 06, 2009 10:47 AM

Demystifying Injury Litigation: What is a deposition and how do I get ready for it?, Rick Shapiro, October 21, 2009

Originally posted at InjuryBoard by Devon Glass

Interrogatories: A Written Deposition

Devon Glass — Thu, 01 Oct 2009 17:10:14 GMT

Continuing with Steve Lombardi's excellent article on interrogatories posted over at his blog, and continuing the theme of the week between Steve, Mike, Rick, Wayne, and Pierce, I'd like to add my two cents on the issue of interrogatories and what they mean to a claim. The difficult thing about writing on many topics after Steve has written on the same subject is this: he writes to damn much and doesn't leave much for the rest of us to discuss. Steve, how about you stop writing novels and start writing chapters?

On to the issue at hand, interrogatories. It sounds really formal and imposing, but as Steve points out, they are really just questions about what happened to cause your injury, what medical treatment you've received, and how the injuries have affected your life. When you read the questions as they are written, it probably feels like you are taking a standardized test and it's your job to figure out which word in the sentence is a noun. Maybe that would be easier.

One thing that will hopefully set your mind at ease is that there is no answer key for the questions. If you don't know an answer to one of the questions, you can say you don't know. The only wrong answer you can give is a lie or a deliberate misrepresentation of the facts. Otherwise, you should do your best to answer the questions to the best of your ability and knowledge. Another thing that should hopefully set your mind at ease is that your attorney will be reading through your answers to make sure you answer the questions appropriately.

Figuring out how to answer the question can be difficult. Many times the questions are written in such a way that it seems deliberately confusing. If you encounter a question you don't know the answer to, take a minute to think about what the question is asking of you, and if you still are unsure how to answer, skip the question and move on to questions you feel more comfortable answering. You may get an idea on how to answer a question based upon reading and answering other questions, but even if you don't have a clue what to write, that's okay. You should ask your attorney to help you with any questions you are unsure about. However, this does not mean you don't have the responsibility to answer the questions yourself, just that your attorney can help explain what the question is asking so you can provide the answer.

You may be wondering, why am I supposed to answer the questions? Doesn't my attorney know this stuff? The answer is yes and no. Of course your attorney should be able to answer most, if not all, the questions in the interrogatories. The point of interrogatories is to find out what you know, not what your lawyer knows. Another thing to think about is this, if your attorney spent all his time answering interrogatories for his clients, he would have no time to investigate your claim or help more than a dozen or so people. Lawsuits take lots of time and energy to prepare and investigate and your attorney needs some help from you to make the job a bit more manageable. Would you rather your attorney spend all his or her time answering questions for you or investigating your claim as vigorously as possible?

That's pretty much it for interrogatories from my perspective, although I am sure that Rick, Wayne, Mike or Pierce will have more to say on the matter. Be on the look out for more posts in our continuing series on being a client.

Join these lawyers for more on commonly asked questions that clients ask.

Wayne Parsons, Devon Glass, Mike Bryant, Rick Shapiro and Pierce Egerton

I was in an automobile accident. What should I do? Ten Tips For Hawaii Drivers, Wayne Parsons on September 14, 2009 - 3:59 AM EST.

What would a caveman bring to meet with the lawyer?, Steve Lombardi , September 15, 2009 11:00 AM

Solving Legal Problems, Being a Client, Back to the Basics, Steve Lombardi , September 15, 2009 8:48 AM

Car Accident Injury Client: What Makes the Case Good or Bad? (The Collision & Medical Care) , Rick Shapiro September 16, 2009 9:38 AM

Being a Client: More Tips To Help Improve Your Case If You've Been In An Car Accident , Devon Glass , September 17, 2009 8:39 AM

Presumed Guilty: How to Avoid Having Insult Added to Injury When You’ve Been Hurt in a Car Crash, Pierce Egerton , September 18, 2009 4:28 PM

What To Do After An Accident When The Adjuster Is There First, Mike Bryant| September 19, 2009 6:26 PM

What Questions Is The Lawyer Going To Ask Me At The Initial Interview For My Injury Or Death Case?, Wayne Parsons | 20 September 2009 12:01

What makes a case good or bad?, Steve Lombardi, 21 September 2009 12:57 PM

What To Do After An Accident When The Adjuster Has A Tape Recorder,Mike Bryant , September 23, 2009 10:01 PM

Do I have a good or a bad case? Devon Glass, September 24, 2009

What are interrogatories and how do I answer them? Steve Lombardi, September 29, 2009

Originally posted at InjuryBoard by Devon Glass

Uninsured and Underinsured Motorist Coverages: The best money you'll ever spend

Timothy Smith — Mon, 28 Sep 2009 17:54:23 GMT

Everyone knows that no matter where you live, you are required by law to have car insurance. Michigan is no exception to this. Also, Michigan is a no-fault auto insurance state. In Michigan, your no-fault insurance pays all your medical bills in the event that you are injured in an auto accident. So, if you have the minimum required no-fault insurance you have all the insurance you need, right?

Actually, wrong, for a number of reasons. Basic no-fault insurance doesn’t pay to have your car repaired. Nor does it pay if your car is stolen. To cover those costs you will need collision and comprehensive insurance. But beyond those situations you should seriously think about getting uninsured/underinsured motorist coverage (UM/UIM).

Here are some reasons why:

While no-fault insurance covers your medical costs and lost wages without regard to who is at fault, there are some situations in which personal injury claims against the at fault driver are allowed. Suits are permitted in accidents in which there have been a death or severe bodily injury or permanent disfigurement. Essentially, in these cases, the injured party will be allowed to sue to recover pain and suffering damages from the person at fault.

This is fine, as far as it goes, but what happens in the event that the at fault driver is either uninsured, or has insurance with very minimal coverage? The answer is that the injured party gets little or no recovery. UM/UIM insurance bridges any gap between what an injured party is entitled to and the limits of the at fault party’s insurance coverage.

Assume that you are severely injured in an auto accident. Assume further, that a jury finds you are entitled to $100,000 of compensation for pain and suffering. If the driver has only $20,000 in coverage [the minimum required here in Michigan], you will lose any amounts above that figure. If you had $100,000 or more worth of UM/UIM insurance, you would receive the entire sum awarded to you by the jury.

Essentially, underinsured and uninsured motorist coverages are the only coverages that cover you for bodily injury if you are injured, maimed or killed by another driver's negligence. You may have purchased an expensive policy with $500,000 limits on bodily injury, but, that is the money that your company pays to someone that YOU hurt when YOU cause an accident. It doesn't help you one bit when someone runs a stop sign and injures you.

The only way to be fully protected in case of an accident is to purchase and maintain underinsured and uninsured motorist coverage. Check with your agent right now to make sure that you have the coverage in place to protect you and your family.

Originally posted at InjuryBoard by Timothy Smith

Do I have a good or bad case?

Devon Glass — Thu, 24 Sep 2009 17:26:54 GMT

I agree with Steve Lombardi, there is no such thing as a "good" or "bad" case, it all depends on what the client expects and what they lawyer can prove in the end. I'm not going to re-hash what Steve talked about, I can only suggest you read his post and be enlightened. Instead, I'd like to discuss the different aspects of a few typical injury scenarios and how each one has it's strengths and weaknesses, in terms of liability, damages, and whether it's a case the attorney would take.

Let's start off with a typical slip and fall accident where you fall on some ice in Michigan during the winter. First and foremost, you should be aware that slip and fall injuries are not a blank check waiting to be cashed by someone who is injured. When looking at a slip and fall case, the biggest roadblock is proving liability against the property owner. In Michigan, like most other states, we have some crazy rules put in through by conservative courts over the past decade or so, most notably the open and obvious danger doctrine. What the open and obvious danger doctrine says is basically if a dangerous condition could have been discovered upon reasonable or casual inspection, then a business or property owner has no duty to warn or otherwise advise you of a dangerous condition because, it being open and obvious, it would act as it's very own warning. That seems like common sense, but it's actually quite a sinister rule. The worst thing about it is that the law puts the responsibility for falling on the person who is injured on someone else's property, but more than that, it requires the injured person to be aware of every single dangerous condition that may or does exist on someone else's property before they become injured. The twist to the rule is that the property owner, who should know what's dangerous more than the stranger who gets injured, has to be actually told about the danger in order to be held responsible. When we are talking about slip and falls on ice, the person who falls and is injured should have known better to be walking around during the winter, don't you know there's snow and ice everywhere? But what about the property owner, don't they know it's slippery as well? Shouldn't they have a responsibilty to keep their property in decent condition during the winter? If the person who falls is supposed to know the ground is dangerous, shouldn't the person who owns the property know this as well?

So slip and fall cases are difficult from this perspective. There are ways to work around this seemingly impossible hurdle, but they are very fact specific and turn on your memory of what happened. If it's dark outside, that is one variable that can improve you claim. If you slip and fall on black ice, that is another way to avoid the open and obvious rule. If you are unable to avoid the slippery condition, that's another factor that improves you claim. The more you can recall about how your fall happened, the better the attorney will be able to properly evaluate the claim. Furthermore, make sure to get pictures of the place where you fell as close to the time when you fell to help demonstrate what caused you to fall. Taking pictures is good advice for most claims, but for slip and falls during the winter, each day is different and having evidence of the actual circumstances which caused your fall is invaluable evidence.

Let's move on to dog bite cases. In Michigan, like most other states, if you are bitten by a dog and you did not provoke the animal, the dog's owner is liable for your injuries. What can make your case better or worse really depends on how injured you are and whether the person who owns the dog has home owners insurance. With regard to the nature of your injuries, if you have one or two small puncture wounds, it is unlikely you will see much of a settlement or verdict. That is not to say you do not deserve compensation, just that small puncture wounds often do not result in significant awards of damages. If, however, you have torn muscles, damages nerves, deep puncture wounds requiring stitches or antibiotics, or permanent scarring on a visible area of your body, that would increase the potential award of damages. It makes sense if you think about it, the guy who has two bites on his calf is likely to get less damages compared to the little girl whose face was mauled.

The issue of insurance affects all types of claims, but for dog bites it's particularly involved. Many dog owner are renters who do not have insurance, meaning they could admit liability but good luck collecting from them in the end. Without insurance coverage on the dog, there is very little chance you will end up seeing any money after a trial, since you would have to collect any money from the person individually. Insurance is a guarantee money will be paid following a settlement or verdict. Think about it like this, if you didn't have insurance and someone obtained a 1 million dollar verdict against you, what would tell them when they came to collect? My guess is you would tell them good luck, because you cannot get blood from a stone, and you cannot get money from someone who does not have it.

Sometimes the things that make your case better or worse have nothing to do with anything you can control, it can sometimes rest with the person who is responsible for your injuries. If the dog owner does not have insurance, they can harm you twice because their dog bit you and then they can't compensate you for what happened.

Devon Glass

Those attorneys writing in this series about client questions include:

Besides Mike Bryant the writers include Devon Glass from Church Wyble, P.C., Steve Lombardi from The Lombardi Law Firm, Wayne Parsons of Wayne Parsons Law Offices, Rick Shapiro from Shapiro, Cooper Lewis & Appleton, P.C., and Pierce Egerton from Egerton & Associates.

Series about Common Questions Clients Ask

I was in an automobile accident. What should I do? Ten Tips For Hawaii Drivers, Wayne Parsons on September 14, 2009 - 3:59 AM EST.

What would a caveman bring to meet with the lawyer?

Steve Lombardi , September 15, 2009 11:00 AM

Solving Legal Problems, Being a Client, Back to the Basics

Steve Lombardi , September 15, 2009 8:48 AM

Car Accident Injury Client: What Makes the Case Good or Bad? (The Collision & Medical Care) , Rick Shapiro September 16, 2009 9:38 AM

Being a Client: More Tips To Help Improve Your Case If You've Been In An Car Accident , Devon Glass , September 17, 2009 8:39 AM

Presumed Guilty: How to Avoid Having Insult Added to Injury When You’ve Been Hurt in a Car Crash, Pierce Egerton , September 18, 2009 4:28 PM

What To Do After An Accident When The Adjuster Is There First, Mike Bryant| September 19, 2009 6:26 PM

What Questions Is The Lawyer Going To Ask Me At The Initial Interview For My Injury Or Death Case?, Wayne Parsons | 20 September 2009 12:01

What makes a case good or bad?, Steve Lombardi, 21 September 2009 12:57 PM

Originally posted at InjuryBoard by Devon Glass

Michael Sincic: Brain Injury Survivor & Artist

Timothy Smith — Fri, 18 Sep 2009 11:49:25 GMT

One of the nicest things about editing the Traverse City InjuryBoard.com blog is the people I've met and the relationships I've developed as the editor of this site. One of those people is local artist Michael Sincic.

His love of art began in Junior High and High School and continued into college. His approach to art was drastically altered in 1995 when he was diagnosed with a brain tumor. Prior to the tumor, he was regularly sketching and drawing cartoons. But, this passion was paused while he focused on address this serious injury to his brain.

Thanks to his parents and an incredible neurosurgeon in New York, his life was saved and he has continued in his love of art through painting and sculpting. Unfortunately, he lost most of his sight and his pituitary gland due the removal of the tumor, but he has learned to "feel" with his hands as he continues to create his art.

He began his company, "Michael's Unique Visions" in the fall of 2000. One of his original art works was commissioned for Steve Yzerman, captain of the Red Wings Hockey team which spends summers up here in Traverse City at their training camp. His art is sold throughout northern Michigan at DeYoungs in Traverse City, Elements Gallery in Charlevoix and Harbor Springs and Main Street Gallery in Milford.

I will be in Lansing next week at the Annual Conference of the Brain Injury Association of Michigan. Look for the Smith & Johnson booth in the vendors area. Michael has been kind enough to allow me to take some of his art work with me to Lansing and we'll have it on display at our booth.

Michael is an amazing brain injury survivor, a very polite and thoughtful young man and a very, very talented artist.

To quote Michael:

"People with disabilities are still people. We all accomplish things, like to have fun, and can communicate in some way. We can do just about everything anyone else can do - maybe just in a different way."

I hope to see some of you there.

-Tim

Originally posted at InjuryBoard by Timothy Smith

A rare win for car crash victims in the Court of appeals

Timothy Smith — Fri, 18 Sep 2009 07:22:31 GMT

Since the Kreiner decision came out of Michigan's Supreme Court, citizens injured through no fault of their own have faced an uphill battle to receive any compensation for their pain and suffering. Michigan's Supreme Court, who at the time was dominated by a majority of conservatives [all of whom received significant campaign contributions from the auto insurance industry], made it nearly impossible for any auto accident victim in Michigan to prevail against the negligent driver that crippled them.

But, we seem to see a swing back towards common sense when it comes to Michigan car accident law. The recent Court of Appeals case of Craiger v. Oakley is a perfect example.

In Craiger, the Plaintiff went to the hospital after being involved in a car accident caused by defendant Oakley. Oakley was driving a van owned by his employer, Port Huron Auto Glass. After suffering pain throughout his body, plaintiff’s doctor performed an MRI which revealed a meniscal tear. Plaintiff then underwent surgery but his knee continued to hyper extend [flex to far forward], leading the doctor to perform knee replacement surgery.

Plaintiff first filed a suit seeking first-party benefits such as payment of medical bills and lost wages from Farmers Insurance and also pain and suffering damages from the defendants. The trial court granted Defendants’ motion for summary disposition after they argued that plaintiff’s knee problems were not related to the car accident. The trial court generally found that the plaintiff did not show he suffered a threshold injury. In Michigan, an injured person must not only show that the other driver was at fault, but that they were in fact injured AND that the injury was so severe, that it altered their life in a significant fashion.

The Court of Appeals held that the trial court erred in granting the defendants’ motion for summary disposition. They found that the Plaintiff did present a question of fact concerning the issue that his knee problems resulted from the car accident. Furthermore, the Court of Appeals agreed that the plaintiff did meet the threshold injury by showing he suffered an impairment of an important body function and that it was objectively manifested. They did agree that the trial court correctly noted that the plaintiff ended his career as a commercial painter due to financial reasons; however, the Court of Appeals said that painting was still plaintiff’s trade and now he lost the option of going back to that trade in better economic times. The Appeals Court described why they felt this injury was serious enough for the plaintiff:

The trial court erred when it found that, even if plaintiff demonstrated that his knee injury was caused or exacerbated by the accident, plaintiff could not meet the test of establishing a threshold injury. Plaintiff showed that he suffered an impairment of an important body function and that this impairment was objectively manifested. Plaintiff has further demonstrated that his general ability to conduct the course of his life has been affected.

Plaintiff suffered pain for a year after the accident, was forced to undergo major reconstructive surgery, and had great difficulty walking for seven weeks following the surgery. He underwent physical therapy from the surgery until October of 2006. Thus, the “nature and extent of the impairment” and “the type and length of treatment required” factors involved in this case support plaintiff’s position that he suffered a threshold injury. Plaintiff suffers continued, and presumably permanent, residual effects. Although plaintiff’s level of pain has apparently diminished since the knee replacement surgery, he still reports discomfort that occurs five or six times each day.

The trial court correctly noted that plaintiff had ended his career as a commercial painter due to financial reasons, however, painting was still plaintiff’s trade and he has now lost the option of returning to that trade in better economic times. One of plaintiff’s physicians stated that plaintiff was employable in a career that involved “no repetitive bending or prolonged standing.” This restriction would prevent plaintiff from returning to work as a painter. Furthermore, plaintiff formerly enjoyed woodworking, including restoring cabinetry, and had been offered a contract to restore the cabinets in a house, but could not do so because of the accident. He claimed that he could no longer participate in this activity because he could not walk up and down to varnish pieces of wood.

Plaintiff’s injury caused him to have to make a decision between a lifetime of knee hyper extensions resulting in “sharp screaming pain” and having his knee joint replaced with synthetic parts. While the knee replacement has led to some improvement in his ability to function, plaintiff is still missing a portion of his body that he will never retrieve. Plaintiff must forever depend on an artificial joint for his mobility and continues to suffer from chronic pain in his knee which will prevent him from returning to work in his previous occupation and prevents him from enjoying his woodworking hobby.

Although the length of time a plaintiff is off work following a car accident seems to be a yardstick for our state courts, this decision still comes to the correct conclusion. You may recall prior posts of mine that describe victims of auto accidents who were left with permanent limps and disfigurement, yet their cases were thrown out of court for not being "serious enough". But here, the Court of Appeals got it right. They reversed the decision of the trial court and sent the plaintiff back to have his day in court.

Originally posted at InjuryBoard by Timothy Smith

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