Questions on Law- Other types of actions

Hello. I am an attorney practicing in Maryland, D.C., and soon in Virginia, but this blog will be very generalized so that it is not specific to one jurisdiction. The purpose of this blog is to post general information for your rights with regards to various types of personal injury matters, including car accidents, work injuries, medical and dental malpractice, nursing home negligence, products liability, and social security disability. My goal is to provide you with as much information as possible so you are more informed prior to contacting or retaining an attorney to represent you. Each blog posting will cover a specific area of personal injury law. I will update my blog from time to time as necessary. If you have any questions, I can be reached at 240-993-9850 or via e-mail at andrewsindler@aol.com.


PERSONAL INJURY IN GENERAL

It's only natural that when we suffer bodily injury, no matter how severe, we want to blame someone and possibly even be compensated if someone else was at fault... but how far will the law allow us to go? It depends on the type and nature of the injury. To make it easier, I'll break it down by topics. This one is devoted to other types of actions that have not already been discussed.

OTHER TYPES OF ACTIONS

The following are other types of personal injury actions that can be brought if the one common question is answered: Were you injured or caused damages as the result of someone else's negligence?

PRODUCTS LIABILITY: If you are injured from using a consumer product that was defectively or dangerously designed or constructed by the manufactured, and reached you, the consumer, unchanged from the time it left the manufacturing warehouse, you are entitled to bring a claim for any injuries you sustained, as long as you used the product in a safe and foreseeable manner. Common examples of these include tools such as power drills and saws, guns, or even toys. One key piece of advice is to watch out for consumer recalls by the Food and Drug Administration (FDA), because that can be a sign that a product that you may have purchased is defective and dangerous, and could cause injury. Once again, keep in mind that you must have used the product in a safe and foreseeable manner prior to being injured in order to be able to recover anything. So, if you were using a power saw to saw a piece of wood and you are injured, you may be able to recover. However, if you were using the same power saw with your friend to re-enact a scene from The Texas Chainsaw Massacre, you will likely not be able to recover.

AIR, TRAIN & BOAT ACCIDENTS: These are of course similar to car accidents, and because they are modes of transportation like cars, you can be just as easily injured in them as the result of someone else's negligence. Common examples of course include plane, train and boat crashes, and injuries sustained while a passenger on any of these as the result of the operator's negligence (e.g., if the pilot on a plane says you can move about and take off your seatbelt, even though the pilot knows there is severe turbulence, and in relying on the pilot, you fall and injure yourself on the plane as a result of turbulence.

PHARMACEUTICAL ACCIDENTS: These generally come under the category of healthcare malpractice. If a pharmacist gives you the wrong prescription medication, gives you the wrong dosage, or writes incorrect instructions on how to take the medication on the bottle, and you are injured as a result, you may be able to bring a claim for such negligence or malpractice. Remember, a pharmacist is a professional like a doctor, and is deemed to have the requisite amount of knowledge, education, and experience to know what he/she is giving you to take, and that you are going to reasonably rely upon the pharmacist's expertise when you pick up and take your medication as directed. In some cases, the doctor who prescribed the medicine may also be liable if he/she prescribed the wrong medicine or gave the wrong dosage.

TRACTOR-TRAILER ACCIDENTS: Again, these were discussed somewhat in the car accident posting, but the point to emphasize once again is that drivers of big tractor-trailers are "professional" drivers with special licenses to operate these big, complex vehicles, and they are held to a higher standard of care than ordinary drivers, and an additional set of federal and state laws and regulations concerning the operation of these vehicles. Many times, if you are involved in an accident with one of these vehicles, the driver of the vehicle will be cited for violations of these federal and state laws (for example, the drivers are limited in how long they can drive a load before stopping and taking a rest on a highway rest area or other place- remember, they drive big loads for long periods of time). Plus, if you are unfortunate enough to be involved in a car accident with one of these huge vehicles, the odds are your injuries will be much more severe and/or fatal.

NURSING HOME ACCIDENTS: Again, I discussed this somewhat in the healthcare malpractice post, but it warrants reiteration. We love our elders and want to ensure they are properly cared for, especially when it becomes too much for us to handle on our own. When we make the conscious but difficult and heart-wrenching decision to place our loved ones in an elderly care facility, for any length of time, we are putting our faith and reliance on the professionals employed by the facility to exercise that greater degree of skill and care to look after and care for our loved ones and ensure their health, safety and well-being. When our loved ones are injured while in the care of a nursing home employee or facility, as a result of negligence, they are entitled to recover for the damages, which are usually significant since injuries in older persons are usually more severe. If one of our elders is fatally injured as a result of such negligence, we have the right to pursue a wrongful death and/or survival action on their behalf, as discussed in a previous post.

ASSAULT/POLICE BRUTALITY: Sometimes we are intentionally injured at the hands of someone else. Generally, when this happens, we don't think of a civil lawsuit for injuries and damages. We think of pressing criminal charges. Well, that's usually the first step. If someone injures us intentionally, we want them to face the appropriate criminal penalties first. Sometimes someone picks a fight with us unintentionally, sometimes they use a weapon on us. Then of course there is the case when we are under arrest or interrogated by the police and the police use excessive, unnecessary force on us, with or without a weapon. Make no mistake, this is illegal and could subject the police to criminal penalties, as well as employment penalties (that is, they can lose their job for using inappropriate force on a suspect). In these types of cases, liability is usually not an issue because the act was done intentionally. If there are criminal penalties imposed (that is, if the assailant either pleads guilty or is found guilty in criminal court), then that can be direct evidence or proof of liability in a case for civil damages. However, many people choose not to pursue a case for civil damages if the assailant receives no criminal penalties (is found not guilty, or isn't even charged). The most important thing to remember is that the burden of proof in a criminal case is much more difficult to meet than in a civil case- if a prosecutor does not meet that burden of proof, he/she may choose not to pursue criminal charges, or the suspect may be found not guilty. But, because the burden of proof is easier to establish in civil cases, then you should not be deterred from making a claim for civil charges against the person who injured you.

DOG BITES/ANIMAL ATTACKS: This one basically speaks for itself, but the bottom line is that an owner of an animal is deemed to be responsible for the animal's actions, and if you are attacked by the animal, unprovoked, you have a right to bring a claim against the owner for any injuries or damages you sustain. The most common occurrence of course is a dog bite or attack, particularly if the type of dog is illegal to own as a pet (for example, pit bulls are often illegal to own as pets in various states and counties).

SWIMMING/DROWNING ACCIDENTS: While these generally involve young children, the fact is that these types of accidents are usually caused by some form of negligence (be it an improperly constructed pool, an incompetent or inattentive life guard, or a mislabeled section of a pool), and as a result, can affect older people as well. While many drownings each year are fatal, many are also non-fatal but cause permanent severe injuries, including brain damage and other conditions. Of course, many people tend to think of the "swim at your own risk" signs as a way for pool owners, managers, or lifeguards to avoid being liable for drowning accidents or injuries. But, that by itself, may not be enough to avoid liability. Each case must be determined on an individual basis.

TERRORISM AND DISASTERS: So what do we think of most commonly when we hear those words? The 9/11 attacks, Hurricane Katrina, Tsunamis, Earthquakes. Yes, many of the victims or victims' families were entitled to and did in fact bring claims for damages for the injuries they sustained. If you are the victim of any of these, whether in your home state, or away, you may be entitled to make such a claim.



Regardless of content, the information contained in this blog is intended for educational purposes only and shall not operate to bind the writer or any associated or referenced business, law firm, or other entity to any order or other contract unless pursuant to explicit written agreement or government initiative expressly permitting the use of such blog for such purpose. The reader hereby expressly agrees to save and hold harmless from liability the writer or any associated or referenced business, law firm, or other entity for the information provided in this blog, and further acknowledges that the information contained in this blog does not constitute legal advice or counsel, and shall merely be construed as informational, and not binding advice. The reader further acknowledges and agrees that this information does not serve to create a lawyer-client or other legal relationship between the reader and the writer or any associated or referenced business, law firm, or other entity.

Questions on Law- Slip and Fall Accidents

Hello. I am an attorney practicing in Maryland, D.C., and soon in Virginia, but this blog will be very generalized so that it is not specific to one jurisdiction. The purpose of this blog is to post general information for your rights with regards to various types of personal injury matters, including car accidents, work injuries, medical and dental malpractice, nursing home negligence, products liability, and social security disability. My goal is to provide you with as much information as possible so you are more informed prior to contacting or retaining an attorney to represent you. Each blog posting will cover a specific area of personal injury law. I will update my blog from time to time as necessary. If you have any questions, I can be reached at 240-993-9850 or via e-mail at andrewsindler@aol.com.

PERSONAL INJURY IN GENERAL

It's only natural that when we suffer bodily injury, no matter how severe, we want to blame someone and possibly even be compensated if someone else was at fault... but how far will the law allow us to go? It depends on the type and nature of the injury. To make it easier, I'll break it down by topics. This one is devoted to slip and fall accidents.

SLIPS & FALLS

It's funny when it happens in the movies or on television. Sometimes we even laugh when we see it happen in real life, even when we try not to do so. But the truth is, in real life it's usually not funny at all. Slips and falls can cause very serious injuries, just like car accidents, work accidents, or medical malpractice. The good news is that I won't have to repeat anything about the injuries or damages, or choosing an attorney, because you can read about those in the car accident or healthcare malpractice posts. The only thing I will discuss in this post is how liability is determined in these types of cases.

LIABILITY OF A THIRD PARTY

There are many instances when a slip and fall accident is the result of someone else's negligence Generally, the question to answer is was there a dangerous or defective condition created or caused by another person or entity that caused the fall. For example, if you slip in a puddle of water that was on the ground as a result of a leak from pipes, and the owner or manager of the building knew or should have known about the leaky pipes and did nothing about it, then it can be argued that he/she caused the puddlbe which caused the person to fall, which makes him/her liable in negligence.

The main pitfall in slip and fall cases is that many times the person who slips and falls is partially or fully to blame as well, and in many cases the person who slips and falls may not be able to recover damages, or may be limited in what they can recover. In the example above, even if the owner/manager of the building created or caused the puddle of water, if the person who slips and falls clearly sees the puddle and chooses to try to walk through it rather than around it, that person contributed to their fall and injuries, and in some jurisdictions (including Maryland), would be forbidden from bringing a claim for negligence.

Slip and fall cases can be difficult to prove and damages are not always easy to recover- but that doesn't mean you may not be entitled to them, and an experienced attorney can help you evaluate your potential case for you.


Regardless of content, the information contained in this blog is intended for educational purposes only and shall not operate to bind the writer or any associated or referenced business, law firm, or other entity to any order or other contract unless pursuant to explicit written agreement or government initiative expressly permitting the use of such blog for such purpose. The reader hereby expressly agrees to save and hold harmless from liability the writer or any associated or referenced business, law firm, or other entity for the information provided in this blog, and further acknowledges that the information contained in this blog does not constitute legal advice or counsel, and shall merely be construed as informational, and not binding advice. The reader further acknowledges and agrees that this information does not serve to create a lawyer-client or legal relationship between the reader and the writer or any associated or referenced business, law firm, or other entity.

Questions on Law- Social Security Disability

Hello. I am an attorney practicing in Maryland, D.C., and soon in Virginia, but this blog will be very generalized so that it is not specific to one jurisdiction. The purpose of this blog is to post general information for your rights with regards to various types of personal injury matters, including car accidents, work injuries, medical and dental malpractice, nursing home negligence, products liability, and social security disability. My goal is to provide you with as much information as possible so you are more informed prior to contacting or retaining an attorney to represent you. Each blog posting will cover a specific area of personal injury law. I will update my blog from time to time as necessary. If you have any questions, I can be reached at 240-993-9850 or via e-mail at andrewsindler@aol.com.



PERSONAL INJURY IN GENERAL

It's only natural that when we suffer bodily injury, no matter how severe, we want to blame someone and possibly even be compensated if someone else was at fault... but how far will the law allow us to go? It depends on the type and nature of the injury. To make it easier, I'll break it down by topics. This one is devoted to Social Security Disability.


SOCIAL SECURITY (SSDI AND SSI)

We pay into the system with every paycheck we get. They take out taxes, they take out retirement benefits and they take out social security. So, the question is when do we get it all (or some of it) back? We know the answer to that question for the first two, but what about social security? “Oh, I’m not old enough to start receiving social security,” or “I haven’t worked long enough to collect it,” you may say. BUT, you probably are not aware that you could be entitled to begin collecting social security sooner than you think!

This post will provide you with the information you need to determine if you are eligible now, rather than later. Although this information is available to you on the Social Security Administration website (www.ssa.gov), if you ever visit that site, you will notice it is not necessarily user friendly, even for attorneys. That is why I’m doing this post, to highlight the relevant information from that website, and explain it better for you. Like my workers’ compensation post, you will see that the social security process is also governed and very strictly enforced by federal law, so it works the same no matter what state you live.


Social Security Disability (SSDI) v. Supplemental Security Income (SSI)

While you believe these benefits are one and the same, the fact is that they are somewhat different. You become medically qualified for them exactly the same (which I will discuss below), but based on your financial and work background, you will only qualify for one and not the other.

SSDI benefits are available when you've worked long enough and paid enough into the system (although it varies, generally, you have to have worked at least 5 of the 10 years directly before you first became disabled). When you receive SSDI benefits, you are also eligible for medical assistance, although that does not occur until two years after you receive your benefits. SSI benefits, on the other hand, are for people who are disabled but either have not worked at all, have worked very little, haven't worked in a long time, or do not currently have more than $2,000 in resources (assets such as cash, real property, etc.). When an application is made for social security benefits, the Social Security Administration (SSA) will determine which type of benefit you are entitled to receive, if you are medically qualified, that is.


Medical Eligibility to Receive Benefits

Once SSA determines which type of benefit (SSDI or SSI) you are entitled to receive, it must then be determined whether you are medically qualified to receive benefits- that is, whether you are medically "disabled." How does SSA do so? This is a 5-step process, which I will explain.

Step 1: First it must be determined that you are not working or performing a substantial gainful activity (SGA). If you are working, generally you are not entitled to Social Security benefits. (Although you are entitled to earn partial wages up to $810.00 per month and still may be eligible to receive Social Security). As long as you are not working, then the analysis proceeds to Step 2.

Step 2: Second, it must be determined whether you have a severe medical or psychological impairment which prevents you from working or performing an SGA.

Step 3: If you have a severe impairment, then it will be determined whether your impairment meets the criteria or description of one of many of the SSA's Medical Listings. These listings basically contain various medical and psychological injuries/conditions with specific requirements which must be strictly met. If you meet one of these listings, then you are automatically considered disabled by definition and the analysis goes no further. If you do not meet one of these criteria, the analysis continues to step 4.

Step 4: At this step, it is determined whether you are capable of performing your past relevant work (if you have any). This is generally determined by looking at the physical demand of your past relevant work (if you have any), and determining your current physical work capacity, or your residual functional capacity (RFC). There are 5 levels of RFC from least to most physical demands- Sedentary (basically desk or office work with little or no physical component), Light duty, Medium Duty, Heavy Duty, and Very Heavy Duty. Generally, the lower your RFC level, the more difficult it is to do your prior work. Your treating or evaluating medical doctors, and other professionals, such as vocational experts, will render opinions as to your RFC level, but ultimately SSA will make the final decision based on all of your medical documentation regarding your injuries/illnesses/conditions, and how they prevent you from working and/or performing everyday activities.

STEP 5: The final step in the analysis is to determine if you are capable of performing any other substantial work (SGA) based on your RFC level, your age, education, and prior work experience. Generally, the theory is that the older you are, the less education you have, and the less transferrable work skills you have, the harder it is for you to find work. Add to that your physical or psychological limitations, and you may be found to be disabled. There are federal regulations, generally known as GRID RULES, which can determine whether you will be found disabled based on your age, education, work experience, and RFC level.

CLAIM PROCESS

So you believe you are entitled to benefits, what do you do now? The first step is to file the initial application for benefits. This may be accompanied by medical documentation, which you can submit, or which SSA will request. The most important thing to note is this: DO NOT be discouraged if you are initially denied on your first application. This is very very common, and happens in almost all cases.

After the initial denial, you have 60 days to file a Request for Reconsideration, which is basically a request to have the application reviewed a second time, and to submit new medical documentation or other bases for your claim. Your attorney may get involved at this stage, where you will file a Disability Report form to detail your medical or psychological impairments, and your limitations and restrictions as a result of your conditions/injuries. Once again, DO NOT be discouraged if you are again denied at this stage of the application. This is also very common, and happens often.

After the second denial, you have another 60 days to file a Request for a Hearing before an Administrative Law Judge (ALJ) who will hear your case, allowing testimony and submitting of medical documentation. The ALJ will listen to and decide your case without regard to the prior denials. If your attorney has not gotten involved prior to now, then your attorney will definitely get involved at this stage as the process will get more involved and overwhelming. With an experienced attorney at your side, you will have a much greater chance for receiving benefits. Your attorney will not only prepare your testimony and the medical documentation, but he/she will also make sure your doctor's reports contain the appropriate findings to help support your claim for disability. Many cases are won or lost on the strength of your medical records and your Disability Report. The hearings are very informal and unlike court proceedings, so you will feel much more relaxed and at ease.

If you are still denied by the ALJ, you will still have opportunities to appeal to the Social Security Appeals Council and then possibly to the United States District Court. Your attorney can explain this to you better if you need to take your claim that far.

AWARD OF BENEFITS/ATTORNEYS

When you are awarded benefits, you will likely be entitled to past due benefits, or back benefits, from some time before they were awarded to you. Because many social security claims can take years before you are awarded benefits (yes I said years), you may have been entitled to benefits long before they are actually awarded. For SSDI claims, you are entitled to back benefits either 5 months from the date you are actually found to have been first disabled, or 12 months prior to your first application date, whichever date is later. For SSI claims, you are only entitled to benefits from the date of your first application, no earlier.

As for attorneys, your attorney will only collect a fee if you are awarded past due benefits. If you are awarded past due benefits, your attorney will be entitled to collect 25% of your past due benefits, up to a maximum of $5,300.00, and this fee cannot be changed because it is set by Federal Law. If you do not collect benefits, or if you are not entitled to any past due benefits, you will not owe any fees to your attorney.

The most important thing to keep in mind is that you are entitled to social security benefits if you are disabled from work, regardless of how it happened. So, if you believe you are entitled, take action now.

Regardless of content, the information contained in this blog is intended for educational purposes only and shall not operate to bind the writer or any associated or referenced business, law firm, or other entity to any order or other contract unless pursuant to explicit written agreement or government initiative expressly permitting the use of such blog for such purpose. The reader hereby expressly agrees to save and hold harmless from liability the writer or any associated or referenced business, law firm, or other entity for the information provided in this blog, and further acknowledges that the information contained in this blog does not constitute legal advice or counsel, and shall merely be construed as informational, and not binding advice. The reader further acknowledges and agrees that this information does not serve to create a lawyer-client or other legal relationship between the reader and the writer or any associated or referenced business, law firm, or other entity.

Questions on Law- Fatal Injuries and Wrongful Death

Hello. I am an attorney practicing in Maryland, D.C., and soon in Virginia, but this blog will be very generalized so that it is not specific to one jurisdiction. The purpose of this blog is to post general information for your rights with regards to various types of personal injury matters, including car accidents, work injuries, medical and dental malpractice, nursing home negligence, products liability, and social security disability. My goal is to provide you with as much information as possible so you are more informed prior to contacting or retaining an attorney to represent you. Each blog posting will cover a specific area of personal injury law. I will update my blog from time to time as necessary. If you have any questions, I can be reached at 240-993-9850 or via e-mail at andrewsindler@aol.com.



PERSONAL INJURY IN GENERAL



It's only natural that when we suffer bodily injury, no matter how severe, we want to blame someone and possibly even be compensated if someone else was at fault... but how far will the law allow us to go? It depends on the type and nature of the injury. To make it easier, I'll break it down by topics. This one is devoted to Claims for Fatal Injuries.



FATAL INJURY ACTIONS



This post is very similar to the motor vehicle accident and healthcare malpractice posts, but this one will provide a little more detail about claims to be filed when someone is fatally injured (killed) as the result of someone else's negligence (whether from a motor vehicle accident or a healthcare malpractice, or something else). You will notice that I gave a little bit of information about this in my motor vehicle accident post.



Types of Claims to File



There are two types of claims that will be filed on behalf of the deceased victim.



1. Survival Actions: These are brought by the survivors of the deceased victim, on behalf of the deceased victim. The theory behind this type of action is that if the deceased victim had survived, he/she would have been able to make the same claim for injuries and damages. In a sense, their right to bring a cause of action is preserved by the survivors. The survivors to bring such an action may include a spouse, minor child (brought by the parent or legal guardian), a parent of a minor or adult child, a sibling, or even a grandparent. The basis for injuries or damages is the same as those listed in the motor vehicle accident and healthcare malpractice posts.



2. Wrongful Death Actions: These are brought by the survivors of the deceased victim, on their own behalfs. The theory behind this type of action is that the survivors will be forever damaged by the loss. Sometimes the damages will be capable of being calculated (medical and funeral expenses, loss of future wages, etc.), and sometimes they will be very general (the loss of companionship, loss of love, loss of social function, etc.).





As before, there are two categories of damages available- Economic Damages (specific dollar amounts like loss of future wages, medical and funeral expenses, property damage, etc.) and Non-Economic Damages (loss of companionship, loss of love, etc.). While there is no limit on Economic Damages, there is a cap on the amount of non-economic damages allowable in Maryland, and it is specifically written into the law. The amount increases each year, but it is currently $680,000 for the survival action, and $1,020,000 for a wrongful death action in which there are two or more survivors (if it's one survivor, it's $680,000).



Because death is difficult enough to deal with as the surviving family member or friend, your attorney should be there for you through every aspect of this very complex and emotionally trying matter.



Follow the same steps you have followed for your personal injury matters, when you are ready to do so, and do not allow yourself to be pushed into filing a lawsuit until and unless you are ready to do so. As always, if you are wronged by someone else's negligence, whether you are the direct victim or a victim by circumstance (as in this case), you are entitled to what you deserve.



Regardless of content, the information contained in this blog is intended for educational purposes only and shall not operate to bind the writer or any associated or referenced business, law firm, or other entity to any order or other contract unless pursuant to explicit written agreement or government initiative expressly permitting the use of such blog for such purpose. The reader hereby expressly agrees to save and hold harmless from liability the writer or any associated or referenced business, law firm, or other entity for the information provided in this blog, and further acknowledges that the information contained in this blog does not constitute legal advice or counsel, and shall merely be construed as informational, and not binding advice. The reader further acknowledges and agrees that this information does not serve to create a lawyer-client or other legal relationship between the reader and the writer or any associated or referenced business, law firm, or other entity.

Questions on Law- Healthcare Malpractice

Hello. I am an attorney practicing in Maryland, D.C., and soon in Virginia, but this blog will be very generalized so that it is not specific to one jurisdiction. The purpose of this blog is to post general information for your rights with regards to various types of personal injury matters, including car accidents, work injuries, medical and dental malpractice, nursing home negligence, products liability, and social security disability. My goal is to provide you with as much information as possible so you are more informed prior to contacting or retaining an attorney to represent you. Each blog posting will cover a specific area of personal injury law. I will update my blog from time to time as necessary. If you have any questions, I can be reached at 240-993-9850 or via e-mail at andrewsindler@aol.com.

PERSONAL INJURY IN GENERAL

It's only natural that when we suffer bodily injury, no matter how severe, we want to blame someone and possibly even be compensated if someone else was at fault... but how far will the law allow us to go? It depends on the type and nature of the injury. To make it easier, I'll break it down by topics. This one is devoted to Healthcare Malpractice.

HEALTHCARE MALPRACTICE

We’ve all heard the words medical malpractice (usually referred to by the short hand abbreviation “med mal”). It should really be more appropriately termed healthcare negligence, because contrary to popular belief, malpractice or negligence of this nature can occur at the hands of a doctor, dentist, therapist, nurse or nurse practitioner, or even a collective body including a hospital, hospice, nursing home, or assisted living home, just to name a few. This post will be very similar to the Personal Injury- Car Accident posting, in that the INJURIES AND DAMAGES, and FINDING THE RIGHT ATTORNEY sections are virtually identical and won’t need to be repeated. Also, on a side note, the standards referred to in this post apply also to professional malpractice in general (e.g. legal malpractice, accountant malpractice, etc.), but those can be explained later.

What constitutes medical malpractice?

Medical malpractice occurs when a healthcare provider (as defined by the relevant state law) violates the standard of care in treating and caring for a patient. The standard of care is the duty owed to the patient by the healthcare provider or organization (be it a doctor, dentist, therapist, hospital, nursing home). Generally speaking, because healthcare providers are professionals who have a higher level of the “3 E’s,” Education, Expertise and Experience, they are held to a higher standard or duty of care that they owe to their patients (versus that which would be owed if a layperson attempted to render medical care to a person who passes out on the street, for example).

Healthcare professionals are required to use a higher degree of skill and care in diagnosing, evaluating, examining, treating and caring for patients at all times, and patients are entitled to rely on such skill and care. While there are many different varieties of “breaching or violating the standard of care,” some of the more common ones include the following:

1. Botched surgeries or procedures (i.e. the doctor messes up and makes you worse);
2. Misdiagnoses or Late Diagnoses (such that the failure to timely diagnose an illness or condition causes worse problems and further complications than if it had been diagnosed timely and properly);
3. Failure to provide proper information prior to the patient giving consent to partake in the procedure or treatment (i.e. the patient did not give “informed consent” because the patient did not know all the risks and dangers of a given course of treatment);
4. Negligent or neglectful caring for inpatients (in hospitals or nursing homes for example- such that the person becomes injured or his/her condition worsens);

The common thread among all forms of malpractice again remains that a standard of care was violated, and the violation of the standard of care directly caused the injury(ies) and/or damages which result.

CLAIMS AND LAWSUITS

Again, this will vary from state to state and jurisdiction to jurisdiction. Some states, including Maryland, require that you file an initial complaint of malpractice with an administrative agency that regulates healthcare professionals or organizations. The complaint is similar to that which would begin a lawsuit in court, and normally such complaints will end up as lawsuits in court unless they settle beforehand.

The most important component that is required prior to filing such a complaint is to obtain an expert who can review the events which are the basis for the claim of malpractice, including reviewing medical documentation and reports. Once you have obtained an expert, he/she must certify that there was a violation of the applicable standard of care by the healthcare professional or organization. Without this certification, a malpractice claim cannot stand.

Because these types of claims are so time consuming, expensive, and complex (given the difficult nature of medical malpractice), they often will settle out of court if the claims are valid. This is to explain why all healthcare professionals and organizations must carry malpractice insurance, and like car insurance, the insurance carrier of the negligent healthcare provider will pay any such valid claim or settle any such lawsuit. These types of lawsuits are also commonly lengthy, multi-day trials (it is not uncommon for malpractice trials to last over a week!). Your attorney can certainly help guide you through this stressful and trying experience.

WHAT TO DO IF YOU SUSPECT YOU ARE THE VICTIM OF HEALTHCARE MALPRACTICE

1. Seek immediate medical treatment or evaluation and keep track of your new injury, condition, or illness that you believe was caused by a healthcare provider's negligence.

2. Keep a regular journal or diary. If the injury occurred to a loved one who is not capable of doing so, keep a journal or diary for them. Include daily notes of problems experienced, limitations in daily activities, medical treatment sought or received, expenses incurred (for medical treatment, and anything else related to your medical treatment- like hiring a housekeeper to help around the house, for example) time missed from work, and any other relevant information.

3. Consult with an attorney immediately! You may not be fully aware of your rights, and don't forget, you have a time limit (statute of limitations) in which you can file such a lawsuit, or you will be forever barred from bring such a claim.

4. NEVER SPEAK to anyone about this claim without first consulting an attorney. If you have an attorney, it is unlawful and unethical for anyone to try to speak to you about your claim.

5. Remain calm and patient, and know that your attorney will work hard to determine if you have a valid claim, and to make sure you get what you deserve if you do.


Regardless of content, the information contained in this blog is intended for educational purposes only and shall not operate to bind the writer or any associated or referenced business, law firm, or other entity to any order or other contract unless pursuant to explicit written agreement or government initiative expressly permitting the use of such blog for such purpose. The reader hereby expressly agrees to save and hold harmless from liability the writer or any associated or referenced business, law firm, or other entity for the information provided in this blog, and further acknowledges that the information contained in this blog does not constitute legal advice or counsel, and shall merely be construed as informational, and not binding advice. The reader further acknowledges and agrees that this information does not serve to create a lawyer-client or other legal relationship between the reader and the writer or any associated or referenced business, law firm, or other entity.

Questions on Law- Workers' Compensation

Hello. I am an attorney practicing in Maryland, D.C., and soon in Virginia, but this blog will be very generalized so that it is not specific to one jurisdiction. The purpose of this blog is to post general information for your rights with regards to various types of personal injury matters, including car accidents, work injuries, medical and dental malpractice, nursing home negligence, products liability, and social security disability. My goal is to provide you with as much information as possible so you are more informed prior to contacting or retaining an attorney to represent you. Each blog posting will cover a specific area of personal injury law. I will update my blog from time to time as necessary. If you have any questions, I can be reached at 240-993-9850 or via e-mail at andrewsindler@aol.com.



PERSONAL INJURY IN GENERAL


It's only natural that when we suffer bodily injury, no matter how severe, we want to blame someone and possibly even be compensated if someone else was at fault... but how far will the law allow us to go? It depends on the type and nature of the injury. To make it easier, I'll break it down by topics. This one is devoted to Work Injuries.

WORKERS' COMPENSATION

You've all heard those words before. What exactly is workers' compensation? In a sense, it is what it says. Workers who get compensated for their injuries. How exactly does the system work? Well, every state and territory in the United States has a system of workers' compensation set up to compensate the injured worker. This system was set up around the beginning of the 20th century as a "great handshake" compromise between the employers and employees. The idea was to compensate the workers without the worker having to establish liability or fault (as in auto accidents). However, as will be discussed below, there are certain limitations as to the types and amounts of compensation available under the workers' compensation system. Again, as I said in my Auto Accident posting, I will try to generalize this so as to not speak about a specific state or jurisdiction.

Compensable Work Injuries

When are you entitled to workers' compensation? When you suffer an on-the-job accidental injury. Generally, the most common injuries are the ones that you can trace to a specific point in time or incident. Common examples are slips and falls, lifting something heavy and injuring a body part, etc. As long as the injury happens in the course of your employment, it will be considered compensable (i.e. you will be entitled to various benefits to be described below). Of course, there are exceptions to this rule which vary from state to state (for example, if you are driving on your way to work from your house and you have a car accident on the way in, you will likely not be entitled to make a claim for benefits).

In addition to an accidental injury at a given point in time, sometimes you can sustain an injury or condition at work over a period of time and not even realize it until years later. This is known as an occupational disease. These come in many varieties- an example would be a worker who develops carpal tunnel syndrome in his/her hands from a period of repetitive movement like typing; another example would be an illness or condition that results from continuous exposure to environmental toxins like mold or asbestos if you work in such an environment (ship yard for example).

Benefits Available

As stated previously, the benefits available vary from state to state, but this section will give a basic overview of the general benefits you may be entitled to if you sustain a compensable injury.

1. MEDICAL TREATMENT: If you suffer an on the job injury or occupational disease, you are entitled to have all medical treatment provided by your employer (or your employer's workers' compensation insurance carrier to be more specific). The key determination is that the medical treatment is reasonable, necessary, and causally related to the original work injury. This is usually an easy determination (for example, if you injure your back, it is reasonable to get physical therapy or chiropractic treatment, and maybe even surgery). In some cases however, it is necessary for a doctor to actually render an opinion that the treatment is reasonable, necessary, and causally related to the original injury. Medical treatment includes such things as doctor's visits, physical therapy, chiropractic care, MRI's, x-rays, CT Scans, surgery, prescription medications, and injections, just to name a few.

One important thing to keep note: NEVER ATTEMPT TO HAVE THESE EXPENSES PAID BY YOUR HEALTH INSURANCE. These are the responsibility of the employers' workers' compensation insurance carrier. If you do put them through your health insurance, your health insurance may pay them, but may ask to be reimbursed later if you get a significant monetary award as a result of your injury (i.e., the health insurance carrier may put a lien on your future award).

2. TEMPORARY WAGES- While you are in active medical treatment for your injury(ies), you are entitled to be compensated if you miss time from work due to your medical treatment, or if your doctor requires you to be off of work for a period of time. This is sometimes referred to as "Temporary Total Disability." Basically, when you are temporarily totally disabled from working due to your injuries, you are entitled to be paid a portion of your wages. In some circumstances, you may be able to work, but not full-time, or not at full-duty. If you are forced to work part-time or earn less wages while you are receiving medical treatment, then you are can receive a portion of your wage loss differential (i.e. the difference between your full wages before the injury, and the partial wages after the injury). The idea is to make sure you don't lose your wages just because you were injured and can't work. Also, important to note, you are entitled to past time missed from work if you don't file a claim right away.

3. VOCATIONAL REHABILITIATION- After you have reached the point of maximum medical improvement (or when you have improved as much as possible after medical treatment and you are as good as you will get), you may be injured to the point that you cannot return to your pre-injury employment or anything comparable. Under those circumstances, you may be entitled to job re-training and/or job placement by a professional vocational counselor. The idea is to help you find employment if you have permanent restrictions as a result of your work injuries. During the period of time you receive such vocational assistance, you will usually be entitled to temporary total disability benefits (since you won't be working, but rather looking for work).

4. PERMANENT DISABILITY- In almost all, if not all jurisdictions, this will be the last benefit you are entitled to receive. You may sustain a permanent injury or disability as a result your initial injury. Most people sustain a permanent partial disability to a specific body part or the body as a whole (expressed in a percentage) and some even sustain a permanent total disability (100%). Permanent disability does not necessarily mean that a person cannot work at all (except for permanent total disability). Based on the amount of permanent disability you sustain, you will be entitled to permanent disability benefits (or payments similar to those received as temporary total disability benefits). Sometimes you receive them on a regular weekly basis, and sometimes you receive them in a lump sum.


CLAIMS PROCESS

So how does the whole process work? Well, it all begins with notifying the employer. Many jurisdictions require that you notify the employer of your injury within a certain time period of the injury occurrence. After you have done so, the next step will be to file a claim with your state's workers' compensation commission- many can be filed via the commission's website for your state, and an attorney can normally help you with this process. The claim will then be sent to the employer, who will in turn send the claim to its insurance company.

In some circumstances, the employer/insurer will accept the claim and provide benefits as allowed and as the employee is entitled to receive. In other circumstances, if the employer/insurer does not accept (or contests) the claim, the workers' compensation commission will help sort out disputes and hold informal hearings to determine when benefits are allowable by law. This usually involves testimony under oath from the claimant (worker) and presentation of documentation as evidence, particularly medical records and reports. Although these hearings seem like formal trials, they are informal and are decided by Commissioners who are normally appointed by the Governor of your state.

After a decision is rendered, either the employee or employer/insurer may appeal to the appropriate court or other agency within the state if they believe the Commissioner made an error in his/her decision. Like any other personal injury matter, many workers' compensation claims settle out of court or the workers' compensation commission. However, settlement is not always the best avenue to pursue because the worker is entitled to certain continuing benefits after any permanent disability benefits are allowed, including lifetime necessary medical treatment related to the injuries sustained by the worker, and the possibility of reopening the claim within a certain time period if the worker's injury or condition worsens.

The most common misconception of injured workers is that they are "suing" their employer for the injury. This is not so! You are simply making a claim for benefits you are entitled to by law. Even if you file a claim with the workers' compensation commission, you are not filing a lawsuit in the same sense as a car accident matter. Along those lines, you should not feel intimidated or awkward for making your claim. Your employer cannot treat you disparately or retaliate against you for filing a workers' compensation claim, and the employer cannot terminate you either.

FINDING THE RIGHT ATTORNEY

I, like most of my constituents, work very hard for my clients to ensure that they are taken care of and treated fairly. All attorneys on behalf of injured workers are paid on a contingent fee basis, which is set by law. Again, this means that you will pay nothing unless you recover money by way of a settlement or award, and your attorney will be entitled to a fee as a percentage of the total amount recovered. Expenses will also be deducted, but will generally not be collected unless any amount of money is recovered, and this is also set by law. Your attorney will specifically discuss this with you when you sign the legal services agreement prior to beginning work on your claim.

Workers' compensation cases can be quite time consuming and stressful, which is why your attorney and his team are here to help to move things along as quickly as possible. The most important thing to remember for any workers' compensation matter is that YOU are in control. Yes, YOU steer the ship. Your attorney is your counselor and advisor and will guide you through every step of the process. But you will make all final decisions- whether to settle, for how much to settle, whether to appeal a decision of the workers' compensation commission, etc. While nobody wants to be get injured on the job, you should definitely get what you rightfully deserve to make you whole again, and we're all here to help.

WHAT TO DO IF YOU SUFFER A WORK INJURY

1. Notify your employer promptly. Even if you're out of work due to the injury, call in or have someone call in on your behalf- your employer will probably have a designated representative or human resources person to record and document such work injuries.

2. Seek immediate medical treatment, even if you think nothing is wrong with you. A doctor can best determine what if any injuries you have or may sustain, what course of treatment will be necessary, and whether it will be necessary for you to miss time from work. When you see the doctor, make sure you notify him/her that this is a workers' compensation injury so you will be billed accordingly.

3. Keep track of your new injuries or aggravation of pre-existing injuries that you believe were caused by the work incident.

4. Keep a regular journal or diary. If the injury occurred to a loved one who is not capable of doing so, keep a journal or diary for them. Include daily notes of problems experienced, limitations in daily and/or work activities, medical treatment sought or received, medical expenses paid by health insurance or out-of-pocket, time missed from work, and any other relevant information.

5. Consult with an attorney immediately! You may not be fully aware of your rights, and don't forget, you have a time limit (statute of limitations) in which you can file such a claim, or you will be forever barred from doing so.

6. NEVER SPEAK to anyone about this claim without first consulting an attorney. If you have an attorney, it is unlawful and unethical for anyone to try to speak to you about your claim, including the insurance company.

7. Remain calm and patient, and know that your attorney will work hard to determine if you have a valid claim, and to make sure you get what you deserve if you do.

Regardless of content, the information contained in this blog is intended for educational purposes only and shall not operate to bind the writer or any associated or referenced business, law firm, or other entity to any order or other contract unless pursuant to explicit written agreement or government initiative expressly permitting the use of such blog for such purpose. The reader hereby expressly agrees to save and hold harmless from liability the writer or any associated or referenced business, law firm, or other entity for the information provided in this blog, and further acknowledges that the information contained in this blog does not constitute legal advice or counsel, and shall merely be construed as informational, and not binding advice. The reader further acknowledges and agrees that this information does not serve to create a lawyer-client or other legal relationship between the reader and the writer or any associated or referenced business, law firm, or other entity.

Questions on Law- Motor Vehicle Accidents

Hello. I am an attorney practicing in Maryland, D.C., and soon in Virginia, but this blog will be very generalized so that it is not specific to one jurisdiction. The purpose of this blog is to post general information for your rights with regards to various types of personal injury matters, including car accidents, work injuries, medical and dental malpractice, nursing home negligence, products liability, and social security disability. My goal is to provide you with as much information as possible so you are more informed prior to contacting or retaining an attorney to represent you. Each blog posting will cover a specific area of personal injury law. I will update my blog from time to time as necessary. If you have any questions, I can be reached at 240-993-9850 or via e-mail at andrewsindler@aol.com.

PERSONAL INJURY IN GENERAL

It's only natural that when we suffer bodily injury, no matter how severe, we want to blame someone and possibly even be compensated if someone else was at fault... but how far will the law allow us to go? It depends on the type and nature of the injury. To make it easier, I'll break it down by topics. This one is devoted to Auto Accidents.

MOTOR VEHICLE ACCIDENTS

The most common type of case people think of when they hear the words "personal injury" is a motor vehicle accident, be it a car, motorcycle, or commercial truck. We've all seen them on the news, passed by them on the drive to work or home, some of us may have even been involved in them... hopefully you weren't injured if you were. Of course, we all have car insurance to cover those types of injuries, but what does the car insurance provide besides the cost of repairing the car? But before we even get to that question, the more pertinent question to answer is "who caused the accident" or "who was at fault?"

Determination of Fault

"I had the green light." "No, I had the green light, you blew through the red light." That's a common exchange we hear when we try to determine who was at fault. What happens if nobody was around to eyewitness the accident to determine who was at fault? Most accidents can be reconstructed by the police officer(s) who arrives on the scene to take an accident report and/or photos. Some are easier to determine than others. The key is to determine which driver was negligent in the operation of his/her vehicle, and did not act as a reasonable driver of the same experience would have acted in the same situation. Violation of a traffic law (running a stop sign or red light, speeding, driving on the wrong side of the road, etc.) will usually be evidence of negligence on the part of a driver. On a sidenote, in the case of a collision with a commercial truck driver, truck drivers are held to a higher standard of care because they are specially licensed to handle their big rig vehicles, and they are strictly bound by the Federal rules and regulations for operating such vehicles.... so if a commercial truck driver causes an accident, he/she may be liable or at fault in a situation where an ordinary driver might not be at fault, and frequently the injuries and damages are greater given the size of commercial trucking vehicles.

The most common types of collisions are rear-ending collisions- in almost all situations, the person who rear ends from behind is found to be at fault. Then of course there are intersections collisions- someone runs a red light or blows through a stop sign. Although eyewitnesses can help, police officers and sometimes expert reconstructionists can return to the scene of the accident and reconstruct how it happened by the type of collision, location of the damage to the vehicles, and other physical variables, in order to determine who is at fault. Sometimes more than one person is considered to be at fault, as will be discussed below.

While the general principle is that the person who is found NOT to be at fault has a right to make a claim for damages for the personal injuries, in some states that is not always the case. Also, because the driver of the vehicle is generally the one deemed to be at fault, if you are a passenger who suffers any injuries, you can ALWAYS make a claim for damages sustained in an accident.

Injuries and Other Damages

So now that we've determined you have a right to make a claim for damages, what specifically can you claim? You can make a claim for all of your bodily injuries which are causally related to the accident (i.e., were a reasonable result of the accident itself), and the incidental damages which result. It is important to note that some injuries may not appear immediately, so it is important to see a doctor as soon as you start experiencing symptoms (even if you go to the hospital right after the accident and you get released with no major diagnosis). The most common type which can sometimes take a long time to appear is whiplash, most common in rear ending accidents. (See the following article on whiplash- http://www.spineuniverse.com/displayarticle.php/article819.html).
Of course, the more serious of a car accident and the more damage done to the vehicles, the more likely the injuries will be serious.

How do you determine the "value" of your injuries in order to make a claim for damages? First and foremost, you track all of your medical expenses that result from the medical treatment you must seek for your accident injuries. The total of those expenses is your starting point. NOTE that even if your health or car insurance pays for any portion of your medical expenses, you can still make a claim for the total charge of each medical treatment, NOT just the portion you have to pay out of pocket.

Then, perhaps you were forced to miss time from work as a result of your injuries and/or medical treatment. The value of your lost wages is also a part of your claim for damages.

Finally, your physical and emotional pain and suffering is naturally the result of being involved in such a traumatic experience as a car accident. You may even have a permanent injury or disability, and you are entitled to be compensated accordingly. Although you cannot put a specific dollar value on this type of damage, your attorney will always work hard for you to ensure you collect the maximum amount you are entitled to under the circumstances and the law.

On a sidenote, there are other miscellaneous causes of action for damages if the victim is actually fatally injured (killed) as a result of an accident which was caused by another's negligence. This cause of action would actually be brought on behalf of the nearest survivor (for example, a husband or wife, a child, or a parent), for the pain and suffering of the deceased victim, as well as the pain and suffering and losses that will be suffered by the survivor (for example, if a spouse or child relied on the deceased victim's income to support him/her, or the loss of companionship and love that accompanies the death of a family member). Again, this can be better explained by an attorney, but these types of actions are typically referred to as survival actions (on behalf of the victim), and wrongful death actions (brought by the surviving person(s) for their losses.


CLAIMS & LAWSUITS

While everyone thinks they will have their "one day in court" when they are the innocent victim of another driver's negligence, the fact is that most car accident cases (like other personal injury matters) never get to a trial. The first step in the process is to make a claim for damages, which is generally done by way of sending a settlement demand package to the insurance company summarizing the accident, the injuries and medical treatment, the medical expenses and lost wages, and any permanent injuries and pain and suffering. Sometimes you will make a claim against your own insurance company for your uninsured or underinsured motorist benefits (if the other driver has no insurance, flees the scene, or does not have enough insurance coverage to compensate you fully for your injuries). At this stage, the matter can sometimes be settled with a little negotiation back and forth between your attorney and the insurance company. If not, then it is sometimes necessary to institute a lawsuit in the appropriate court.

While sometimes it is simply necessary to file a lawsuit in order to get the insurance company moving on resolving your claim, it may also be necessary if you are approaching the applicable statute of limitations (or time limit in which to file your claim- in Maryland, for example, you can only file a lawsuit within 3 years of the date of your accident). Even after a lawsuit is filed, it is more than common and frequent for a lawsuit to settle prior to getting to trial. This is so because personal injury lawsuits can sometimes take more than a year from the time they are filed to reach the trial stage, and they are extremely time consuming and expensive for everyone involved.

FINDING THE RIGHT ATTORNEY

I, like most of my constituents, work very hard for my clients to ensure that they are taken care of and treated fairly. Most, if not all attorneys on behalf of accident victims are paid on a contingent fee basis. This basically means that you will pay nothing unless you recover money by way of a settlement or court award, and your attorney will take his/her fee as a percentage of the total amount recovered. Expenses will also be deducted, but will generally not be collected unless any amount of money is recovered. Your attorney will specifically discuss this with you when you sign the legal services agreement prior to beginning work on your claim.

Personal injury cases can be quite time consuming and stressful, which is why your attorney and his team are here to help. The most important thing to remember for any personal injury matter is that YOU are in control. Yes, YOU steer the ship. Your attorney is your counselor and advisor and will guide you through every step of the process. But you will make all final decisions- whether to settle, for how much to settle, whether to file a lawsuit and go to trial, etc. While nobody wants to be the innocent victim of someone else's negligence, you should definitely get what you rightfully deserve to make you whole again, and we're all here to help.

WHAT TO DO IF YOU ARE INVOLVED IN A CAR ACCIDENT

1. Call the police to come to the scene of the accident. Even if it was a minor fender bender, the police can take a report, question witnesses, draw a diagram, take pictures, and even make a finding of which driver was at fault. Police officers sometimes give a traffic citation to the at-fault driver if there was a clear violation of a traffic law(s).

2. If the police don't come to the scene, try to take a picture before the vehicles are moved, even if it's with your cell phone camera, call for help (family or friends), try to track down eyewitnesses and get their names and phone numbers. Also, make sure you exchange license and insurance information with the other driver, and get the license plate number of the other driver (in case they drive away or give you false information- this way the police or your insurance company can track them down by the car).

3. Seek immediate medical treatment, even if you think nothing is wrong with you. This is especially important for whiplash injuries, which may not show up until weeks after the accident. A doctor can best determine what if any injuries you have or may sustain.

4. Keep track of your new injuries or aggravation of pre-existing injuries that you believe were caused by the accident.

5. Keep a regular journal or diary. If the injury occurred to a loved one who is not capable of doing so, keep a journal or diary for them. Include daily notes of problems experienced, limitations in daily activities, medical treatment sought or received, expenses incurred (for medical treatment, and anything else related to your medical treatment- like hiring a housekeeper to help around the house, for example), time missed from work, and any other relevant information.

6. Consult with an attorney immediately! You may not be fully aware of your rights, and don't forget, you have a time limit (statute of limitations) in which you can file such a lawsuit, or you will be forever barred from bring such a claim.

7. NEVER SPEAK to anyone about this claim without first consulting an attorney. If you have an attorney, it is unlawful and unethical for anyone to try to speak to you about your claim, including the insurance company.

8. Remain calm and patient, and know that your attorney will work hard to determine if you have a valid claim, and to make sure you get what you deserve if you do.


Regardless of content, the information contained in this blog is intended for educational purposes only and shall not operate to bind the writer or any associated or referenced business, law firm, or other entity to any order or other contract unless pursuant to explicit written agreement or government initiative expressly permitting the use of such blog for such purpose. The reader hereby expressly agrees to save and hold harmless from liability the writer or any associated or referenced business, law firm, or other entity for the information provided in this blog, and further acknowledges that the information contained in this blog does not constitute legal advice or counsel, and shall merely be construed as informational, and not binding advice. The reader further acknowledges and agrees that this information does not serve to create a lawyer-client or other legal relationship between the reader and the writer or any associated or referenced business, law firm, or other entity.