The Stealey Law Firm Blog
Saturday, May 25, 2013
Can you be sued for hurting someone's feelings?
In a civilized society, citizens are expected to conduct themselves with at least a small amount of regard for the feelings of others. To prevent behavior that can cause severe anguish, the law has created a tort called “intentional infliction of emotional distress”. An intentional infliction of emotional distress claim allows those who are emotionally injured by another person to recover for emotional injuries as well as any physical injuries that result from distress induced by the bad behavior, such as migraines, ulcers or a miscarriage.
In order to prove intentional infliction of emotional distress, four elements must be shown. First, the defendant must act either intentionally or recklessly. The defendant’s conduct must be extreme and outrageous. Third, the plaintiff must have suffered extreme emotional distress. And lastly, the plaintiff’s conduct must be the cause of that distress. In addition, some states require that the incident that caused the emotional distress must have taken place in public.
Some examples of behavior that may constitute intentional infliction of emotional distress include a person telling a parent their child has died, while knowing it wasn’t true; a medical professional telling a patient he or she is HIV positive as a joke; or a person threatening to shoot another person if he or she does not meet certain demands. Some behavior that may seem like intentional infliction of emotional distress but probably is not would include a person having an affair with a friend’s spouse; a landlord evicting a dying person who hasn’t paid rent for a few months; or an action that was intended as a harmless prank, such as toilet papering someone’s house.
When determining whether intentional infliction of emotional distress has occurred, a judge or jury must take into account the emotional state of the victim and whether the plaintiff knew of that emotional state. For example, a person locking another person who is scared of roaches in a closet filled with roaches could be intentional infliction of emotional distress in that instance, while it may not be to a person who isn’t afraid of roaches.
Intentional infliction of emotional distress can be hard to prove. The hardest element to show is that the defendant’s conduct was so extreme or outrageous to be completely intolerable in a normal society. It is not enough for the defendant to simply have behaved badly or even very badly – the behavior must be atrocious and harmful to one’s mental health.
Wednesday, May 15, 2013
Wrong-Site Surgeries Increase in Number
Imagine that you’re a patient going in for routine surgery. Now imagine that you’re one of 40 U.S. patients a week who awakens from anesthesia– only to find that your surgeon has operated on the wrong site. Say for example, your right leg instead of your left leg. What would you do? Sue your doctor? The hospital? A surprising report from The Joint Commission, which accredits and certifies healthcare organizations in the United States, finds that the problem of wrong-site surgery has worsened, not improved. More and more medical patients are waking up to find that their doctors made an error in a common surgical procedure.
According to Kaiser Health News, wrong-site surgeries continue to occur on a regular basis. This comes years after the president of The Joint Commission introduced mandatory rules aimed at preventing surgeons from performing procedures on the wrong site. The study found that wrong-site surgery occurs an estimated 40 times a week in U.S. hospitals and clinics. However, according to the commission, which encouraged surgeons to submit cases of error, only 93 cases were reported in 2010.
According to the commission, reporting of such incidents is voluntary and confidential. This policy is in place to encourage doctors and hospitals to come forward . Aside from the commission, the laws in about half the states, do not require reporting.
Despite campaigns to encourage surgeons to participate in a timeout at the start of every surgery, where each surgical team takes a moment to verify the procedure to be performed, the article posits that the mistakes may be explained by the increased time pressures surgeons face. Because reporting is not required by many states, the number of estimated wrong-site surgeries could be a gross underestimation.
Interestingly, a smaller percentage of wrong-site procedures are litigated in medical malpractice suits than one might think. Settlements in these cases are substantially lower than those where the wrong-site patient seeks representation.
According to a 2010 study, which reviewed 132 wrong-site cases, about one-third of procedures resulted in death or serious injury. Despite these horrific outcomes, the average compensation to victims was approximately $80,000 in cases that resulted in a lawsuit and $47,000 in cases settled without legal action. As incidents of wrong-site surgery continue to increase, patients and their advocates should continue to press for more accountability from their hospitals and their doctors.
Sunday, May 5, 2013
Should I Sue for My Injuries?
Whether you’ve been injured as result of a car accident, fall at the local market or a bite by a neighbor’s pit bull, you may be asking yourself, “Should I Sue?” Most people think they should, and that a sizable settlement payment will be forthcoming.
In our legal system, a negligent party is expected to pay for damages you incurred because of the accident or injury, such as medical costs, lost income, property damage, and pain and suffering. In certain cases, punitive damages may be awarded if a person’s conduct was malicious or intentional. Nevertheless, just because you have been injured does not necessarily mean that you should file a lawsuit, a decision which rests on multiple factors.
Such factors include the seriousness of your injury, the level of fault that rests with the negligent party, and your own liability for involvement in the accident or causing your own injury. One of the biggest considerations, however, is whether the wrongdoer has the financial means to pay any judgment that you may be awarded. If the defendant is insolvent, your judgment may prove to be worthless – but your attorney and other professionals involved in your case will expect to be paid.
Accordingly, insurance coverage is a significant consideration. Although the defendant may have few assets from which to collect a future judgment, there may be sufficient insurance coverage available to pay any eventual judgment. Note, however, that most insurance policies typically do not cover intentional torts.
An experienced personal injury attorney can help you review the various risks and benefits of pursuing a lawsuit, in light of your specific circumstances. Before deciding whether to undertake the time and expense of litigation, you must carefully weigh your involvement in any comparative or contributory negligence, what evidence will be necessary to prove your case and the amount of damages you should be awarded, and the availability of assets or insurance to secure payment of a future judgment.
Thursday, April 25, 2013
My Neighbor Told Everyone I’m a Drug Dealer…Can I Sue for Defamation?
Assuming you are, in fact, not a drug dealer, you may be able to successfully bring a civil lawsuit for defamation. Defamatory statements are those untruths which harm your reputation. While defaming another person is not a crime, it is a civil tort and the victim can seek redress in the courts for damages incurred.
Defamatory statements can be spoken, gestured, written or pictured. Written defamation is referred to as “libel” and spoken defamation is known as “slander.” Oral defamatory statements generally have a shorter lifespan than those fixed in a written form; therefore most courts deem libel to be more injurious than slander. In order to prevail in a civil lawsuit for defamation, you must prove to the court that the defamatory statement made against you was:
Caused injury; and
Was not privileged
First and foremost, the statement must be false. If you happen to occasionally dabble in the drug trade, such an accusation against you would be true and, therefore, would defeat your claim for damages. A truthful statement, no matter how harmful to your reputation, is not considered damaging in the civil liability sense. Similarly, opinions are not considered defamatory because it is impossible to present evidence that objectively proves that the statement is false.
You must also prove to the court that the statement was published, or somehow communicated to a third party. Publication does not mean it must be published in print or on the internet; this requirement is met whether the statement was communicated over the media, through gossip, overheard in conversation, or via flyers and signs. The only requirement is that the statement is communicated to a party other than yourself or the person making the statement.
Because the primary purpose behind defamation law is to compensate a victim for damage to his or her reputation, in order to prevail in a defamation lawsuit you must be able to prove that you were injured by the defamatory statement. Damages may include being shunned by business associates or neighbors, lost income opportunities, or even being hounded by the media. Some types of false statements are considered defamation “per se” and do not require the victim to prove injury, including allegations that you have committed a crime, have a sexually transmitted disease, are guilty of sexual misconduct, or are professionally incompetent. Accordingly, an untrue statement that you are dealing drugs – an allegation that you are engaged in criminal activity – would fall under defamation “per se,” easing your burden of proof.
Finally, the statement must not be privileged. In certain instances, statements made are privileged and the person who made the statement cannot be sued for defamation if the statement turns out to be false. For example, those testifying in court or at a deposition cannot be sued if their testimony turns out to be untrue.
There’s an added wrinkle for public figures who face a higher burden of proof. Elected officials, celebrities and other public figures must also show that the false statement was made with “actual malice”, meaning the person who made the statement either knew it was false or acted with reckless disregard for whether the statement was false.
Monday, April 15, 2013
Defensive Medicine: Many Doctors “Over-Treat” Patients Due to Fear of Medical Malpractice Claims
The skyrocketing cost of medical malpractice insurance premiums has changed the way many physicians practice medicine, prompting some to refuse certain patients with complex medical problems or to order unnecessary tests on other patients. Such “defensive medicine” can involve unwarranted lab tests or x-rays or even more invasive procedures to help ensure “certainty” regarding a diagnosis. Even more troubling for the most vulnerable patients, defensive medicine can result in a surgeon’s refusal to perform a complex operation on a sick patient for fear of a negative outcome and eventual malpractice lawsuit.
A recent study published in the Archives of Internal Medicine revealed that many patients receive “too much” medical care and treatment. The study found that 42 percent of American primary care physicians believe that patients receive more aggressive medical care than is necessary. The study also revealed that many doctors feel they must provide “excessive care” to patients, due in large part, to concerns about being the subject of medical malpractice claims.
The study involved 627 physicians, most of whom had practiced medicine for nearly 25 years. Of the doctors surveyed, just 6 percent expressed concern that patients were receiving too little care. Most doctors reason that they could risk medical malpractice lawsuits if they fail to take every conceivable measure to cure or prevent an illness. They admitted over-treating and over-testing, in order to attain clinical performance standards, despite the small amount of time they have to actually consult with each patient.
The vast majority of physicians surveyed – 83 percent – believe they could be sued if they opted not to order every test that is indicated for a particular situation. On the other hand, just over 1 in 5 doctors believe they could be sued for ordering an unnecessary test.
Nearly half of the survey respondents reported that nurse practitioners and physician assistants provided more aggressive treatment than primary care doctors, and 61 percent indicated that subspecialists also provide more aggressive treatment. Experts believe that defensive medicine could be mitigated if doctors more effectively communicated with their patients about their illness and the pros and cons of various tests.
Friday, April 5, 2013
The vast majority of significant personal injury settlement offers come with a catch – the defendant wants a confidentiality clause included in the settlement agreement, barring the plaintiff and his or her attorneys from publicly discussing the facts of the case or terms of the settlement.In exchange for keeping their “mouths shut”, plaintiffs often benefit by obtaining higher compensation. In many circumstances, the plaintiffs also have a preference for maintaining their own privacy.
Why do the defendants’ attorneys routinely insist on confidentiality clauses in their settlement agreements? Typically, defendants – and their attorneys – want to prevent evidence, such as witnesses or documents, from being accessible to future plaintiffs. In the grand scheme of things, this makes the defendant less accountable for its conduct.
Arguably, our legal system and the overall population would benefit from an outright rejection of confidential settlement agreements. Yet, most plaintiffs’ lawyers quickly capitulate; a settlement in hand is a sure thing, prevents future expenses necessary to bring a case to trial, and avoids the uncertainty regarding how much a jury might award in damages. Plaintiffs typically agree to maintain secrecy, as well. Seriously injured victims and their family members may be struggling financially and emotionally, and have a strong desire to put the matter behind them. It is understandable that they focus on their own needs and recovery, rather than how it may impact future plaintiffs’ or the public’s access to information and evidence.
Some attorneys and ethicists believe that lawyers’ rules of professional conduct provide them with sufficient grounds to reject secrecy clauses. Most states’ ethical rules favor enabling the public to have a realistic understanding of which attorneys have expertise in cases involving certain circumstances or against particular defendants.
However, those same rules of professional conduct also require attorneys to act in the best interests of the client – which often means agreeing to a speedy or generous settlement offer. Some legal ethicists suggest addressing confidentiality upfront, at the beginning of settlement negotiations. However, this approach may reduce the amount of a future settlement offer, or cause the defendant to take settlement off the table entirely. This risk, too, must be discussed with and agreed to by the client.
Furthermore, in this type of situation, the risk is borne by the plaintiff but the benefits are only realized by the general public, as mentioned above, or the lawyer who later enjoys “bragging rights” when he would otherwise be muzzled. It can be a tough sell, and one fraught with its own ethical implications. In the end, only the client can decide what is best for his or her situation. Some will agree to the risk “for the greater good” while others must do what is best for them and their families.
Monday, March 25, 2013
Your Doctor Made a Mistake – But Do You Have a Medical Malpractice Case?
The term “medical malpractice,” sometimes called medical negligence, refers to a situation in which a health care provider fails to act in accordance with standards of accepted medical practice, causing injury or death to the patient. A physician, nurse or other health care professional is considered negligent if his or her conduct is below the “standard of care,” i.e. the degree of care and skill that the typical health care professional would provide to a patient seeking treatment for similar symptoms or under similar circumstances.
It’s not just doctors and nurses who can be sued for medical malpractice. Any licensed health care provider who is in a position of trust can be held accountable for diagnosis or treatment that causes injury or death. These can include lab technicians, radiology technicians, specialists who interpret your test results, ambulance companies and their employees, and facilities such as hospitals, nursing homes and pharmacies.
There are many types of mistakes which may be considered “medical malpractice,” depending on the overall circumstances of your injury or illness and the treatment you received. Common medical malpractice claims include:
Incorrect or missed diagnosis
Failure to conduct appropriate diagnostic tests
Failure to properly treat your medical condition
Failure to properly administer medications
Failure to properly perform a surgical procedure
Failure to manage a pregnancy or safely deliver a baby
Failure to warn you of the risks of treatment, which would enable you to give your fully informed consent to the treatment
Failure to anticipate a problem which should have been anticipated in accordance with the standard of care
Even if your medical treatment results in a negative outcome, the doctor’s or nurse’s conduct may not rise to the level of malpractice or negligence. Furthermore, even if the treatment you received clearly fell below the standard of care and is deemed “negligent,” you may run into difficulties bringing your claim due to the high cost of litigating a medical malpractice case. Because medical malpractice cases often hinge on the definition of the “standard of care” required for that particular situation, experts must be consulted and retained to prepare reports, give depositions and testify in court.
You should consult with an experienced medical malpractice attorney who can help you determine whether the health care provider’s negligence was truly the result of malpractice and whether your case is worth pursuing. Your attorney will review your medical records and will likely have to retain a medical expert who can review your records to evaluate the merits of your claim. Due to the significant expense involved in performing such reviews and obtaining assistance of experts for a medical malpractice claim, the vast majority of meritorious cases settle before the case goes to trial.
Friday, March 15, 2013
What Not to Do After a Car Accident
There are many potential missteps after you have been involved in an auto accident. In the minutes, hours and days following a car wreck, it can be difficult to think clearly or to take note of important factors involving liability and compensation. Even if your injuries are minor and your vehicle is not damaged, you should follow these guidelines to protect yourself and preserve your right to compensation for your injuries, vehicle damage or lost income. Often times, your damages are more serious than they appear at first glance.
Even if you think you are clearly at fault for the accident, don’t accept blame or apologize to anyone. The police and insurance adjusters will investigate the collision and determine where the fault lies. If it lies with you, you will most certainly be notified. But affirming your guilt before all the facts are discovered can only serve to undermine your personal injury claim or a potential defense if you are on the receiving end of a lawsuit.
Don’t Compare Notes
Avoid rehashing the accident with the other involved parties. You do not want to inadvertently admit fault for the accident, or make other statements that undermine a future legal claim. Additionally, swapping stories can cause confusion in your own mind regarding what happened immediately before and during the collision. Of course, you should give your statement to the police, if applicable. But further communications regarding the accident, your injuries, damage to your vehicle, or associated expenses for medical treatment or car repairs should be limited to your attorney.
Don’t Get into a Dispute with Other Drivers or Passengers
Tempers can sometimes flare. People may be hurt, property may be damaged. Nobody is getting to their destination, and everyone may be concerned regarding various obligations and future travel arrangements. If other parties become upset, agitated or violent, you should simply walk away. By refusing to engage in emotional dialogue – or worse, a physical confrontation – you avoid turning a routine fender bender into a major altercation which can result in its own legal ramifications.
Don’t Call the Insurance Company
If you think there is any reason why the insurance company may dispute your claim, you should speak with an attorney first. The attorney can advise you regarding what to say – and what not to say – to the insurance adjuster, or can communicate with the adjuster on your behalf. Insurance companies train their adjusters to ask specific questions designed to make your case look as weak as possible. Your insurance company should help you when you’ve been involved in an accident – that’s part of what you pay for – but ultimately the bottom line is of primary importance. The insurance business is far more profitable when the insurance companies do not have to pay out claims.
Wednesday, March 6, 2013
If you are involved in a car wreck or are injured in some other fashion as a result of someone else’s negligence or carelessness, it is important that you do not discuss the incident or your injuries on any social media, such as Facebook or Twitter. In fact, it is advisable that you refrain from engaging in the use of any social media until your claim has been fully and completely resolved. Insurance companies and defense attorneys routinely request information concerning the use of social media by injury victims.
Of course, some of this information is in the public domain, so it is easy and perfectly legal for insurance companies and lawyers to obtain it. In other instances, attempts have been made, sometimes successfully, to obtain even private social media information from accident victims by requiring them to provide copies of otherwise private Facebook pages, tweets, blog entries, etc., or even requiring that passwords to these various social media accounts be revealed so that such accounts can be accessed and information obtained and scrutinized.
Some courts, when faced with the issue of whether insurance companies and defense lawyers should be granted access to this private information, have upheld the right of privacy over the right of the insurance companies to have access to this information. Some courts have ruled the other way, holding that social media information that is relevant to the case should not be withheld due to privacy concerns. ANY entry on Facebook, twitter or on a blog can provide ammunition to an insurance company which could persuade a court to allow access to ALL private information, thus swinging the privacy/relevance pendulum one way or the other. For example, if an accident victim is claiming damages for pain and suffering and loss of enjoyment of life, or permanent disability, and posts a photo taken after the accident of him or her smiling brightly while on a beach vacation, or playing with a child or a dog in the yard, it is obvious that this could not only have a direct effect on the claim, but could also open the door for the insurance company or defense attorney to dig deeper into the private or non-public social media information in possession of the injured person. This is true even if the photographed event is being read out of context or blown totally out of proportion to what it was.
While I’m not suggesting that evidence be hidden from insurance companies or defense lawyers, the fact that certain activities are mentioned or photographed on social media sites can potentially be used to persuade a court to open up the entire can of worms, thus forcing injury victims to reveal other information that is private and personal, even though such information may be totally unrelated to the accident or injuries from the accident. The thought of having to reveal such personal or private information can potentially put the injured person in a very weakened position when it comes to settlement negotiations. It can make the injured person feel intimidated, angry or frustrated with the court process. None of these feelings are advantageous to a fair settlement of the case.
The best advice is just simply to stay off of social media and refrain from using it, period. This avoids all potential problems, and allows for the injured person’s privacy to be protected while the litigation is in process, and also puts that person or his or her lawyer in the most advantageous position to settle the claim.
Tuesday, March 5, 2013
How are Damages Calculated in Personal Injury Cases?
If you have been injured as a result of someone else’s negligent conduct, you may be considering a lawsuit to recover compensation. The compensation awarded to you, called “damages,” falls within two categories: compensatory damages and punitive damages. Compensatory damages are designed to compensate the plaintiff for actual losses sustained, and are further divided into “special damages” and “general damages.”
Special damages are those fixed amounts relating to your actual losses, such as medical expenses, lost income or costs to repair your property. General damages, on the other hand, include non-monetary losses, such as “pain and suffering”, your decreased ability to perform certain functions, or the loss of a loved one. Punitive damages, sometimes called exemplary damages, are designed to punish a defendant or deter similar conduct in the future.
The damages to which you are entitled are typically calculated based on the severity of your injuries, the underlying circumstances of the incident in question, and whether the case settles or proceeds to a trial. The following factors are typically considered:
Medical treatment expenses
Estimated costs of future medical treatment or therapy
Past lost wages or income
Future lost wages or income
Costs to repair or replace damaged property
Your out-of-pocket expenses, such as insurance deductibles or copayments
Rental car expenses
Funeral expenses, in wrongful death cases
Pain and suffering
Punitive damages, if the underlying act was particularly egregious or intentional
In the American legal system, damages are intended to compensate the plaintiff sufficiently to make him or her “whole,” i.e. restore the plaintiff to the same position he or she was in prior to the accident or injury. If you mediate your dispute or otherwise settle it out of court, the parties and lawyers will negotiate each item and come to an agreement. If your case is tried in a court, the judge or jury will calculate how much you are entitled to receive, based on the evidence presented at trial.
Monday, February 25, 2013
5 Tire Safety Hazards
Proper maintenance of your vehicle is an important step toward ensuring your safety on the road. Tire failures at high speeds can result in vehicle rollovers, serious injuries and death. Below are five safety hazards to watch out for; the presence of any of these conditions can indicate that your tires should be repaired or replaced – before it is too late.
Tires Not Inflated to the Proper Air Pressure: Incorrect tire pressure compromises both the comfort and safety of your ride. Improper pressure affects braking, cornering, stability, mileage and tire life. Furthermore, tires that are not inflated to the proper pressure face a higher risk of catastrophic failure resulting in a serious accident. Low tire pressure causes increased friction and can overheat the tire, causing tread separation. The recommended tire pressure is always less than the maximum allowable pressure stated on the tire itself. Your vehicle’s recommended tire pressure can be found in the owner’s manual, or the label on the car’s driver’s side door, glove compartment or gas tank door.
Worn Tread: If the tread on your tires has worn down, you are at an increased risk of a blowout or hydroplaning accident. Additionally, worn tread may indicate a more serious problem, such as improper balance, suspension or alignment. Finally, tires with worn tread are more likely to be underinflated, affecting steering, braking and mileage, and causing further safety risks due to improper air pressure.
Tire Repeatedly Loses Air Pressure: If you often notice that one of your tires seems low, despite the fact that you have inflated the tires to the proper pressure, this could indicate a leak. There may be a small puncture in the tire’s tread, perhaps caused by driving over a nail, or it may be caused by a poor seal between the tire and rim or a damaged valve. These problems can often be repaired, rather than having to replace the tire. Ignoring the problem can lead to a sudden drop in tire pressure while on the road, which can result in a blowout or loss of control.
Bulge in the Sidewall: Any budge, regardless of size, indicates that the tire’s integrity has been compromised and the tire should be replaced immediately. This could be due to an impact with a curb or pothole. When such a bulge occurs, the steel belts inside the tire have weakened and can no longer ensure safe operation of the vehicle. Care should also be taken to ensure that the impact that caused the tire bulge did not also cause damage to the wheel itself.
Old Tires/Vehicles in Storage: If your tires are old or the vehicle has been immobile for a lengthy period of time, the tires may be affected by a form of “dry rot.” Regardless of how climate-controlled the storage environment is, tires that sit for extended periods will weaken over time until they are unsafe for travel. Similarly, old tires will show signs of degradation. You can identify this problem by examining the tire for small cracks in the tire’s sidewall. If any cracks are present, the tire should be replaced.
The Stealey Law Firm is based in Parkersburg WV and serves the surrounding counties of Wood, Jackson, Wirt, Roane, Doddridge, Pleasants, Tyler, and Ritchie in the legal area of Personal Injury.