(844) 815-9632

Monthly Archives: July 2015

Can You Sue for a Misdiagnosis?

Every year, 12 million adults in the United States are misdiagnosed by doctors. That’s 1 in 20 patients. In a recent shocking case, Dr. Farid Fata plead guilty to misdiagnosing health patients with cancer. He tortured more than 500 patients with unnecessary chemotherapy treatments and took millions of dollars from the government in false Medicare claims. A few of his patients even died. If a doctor misdiagnosed you, can you sue? Common Misdiagnoses With 1 in 20 patients misdiagnosed, doctors actually have a pretty good 95 percent success rate. However, a misdiagnosis could mean an illness goes untreated for too long, or a patient must suffer through unnecessary treatments. Here are some commonly misdiagnosed illnesses: Asthma — Misdiagnosed as recurring bronchitis Heart Attack — Misdiagnosed as indigestion, panic attack Lyme disease — Misdiagnosed as the flu, depression, or mononucleosis Parkinson’s — Misdiagnosed as Alzheimer’s, stroke, or stress Lupus — Misdiagnosed as chronic fatigue syndrome, fibromyalgia, or rheumatoid arthritis Suing for Negligence In most medical malpractice claims for misdiagnoses, you’d probably be suing for negligence. To claim negligence you’d have to show: Duty — Did the doctor have a duty to care for you? Normally, when there is a doctor patient relationship, the doctor has a duty to act as a reasonably competent doctor. Breach — Did the doctor breach the duty? Just because a doctor misdiagnosed an illness, doesn’t necessarily mean he was acting negligently. To show breach of duty, you’d have to be able to prove that a different reasonably competent doctor would have been able to diagnose the illness properly Causation - Did the doctor’s misdiagnoses actually cause you harm? Your doctor may have misdiagnose you with cancer instead of the flu, but the next day someone ran you over killing you. The doctor’s misdiagnoses was not the cause of your injury. Damages — Did the misdiagnoses cause you damages? The doctor may have misdiagnosed you with migraines instead of a flu. However, he prescribed you Tylenol, which helped cure your flu as well. This means you didn’t suffer any damages because of the misdiagnosis. Proving a medical malpractice claim is complex requiring expert testimony and lengthy litigation. If your doctor misdiagnosed you and caused you harm, consult with an experienced personal injury attorney for help. Related Resources: Have an injury claim? Get your claim reviewed for free. (Consumer Injury) Patients give horror stories as cancer doctor gets 45 years (CNN) Botched Vasectomy: Parents Sue Doctor for $650K to Raise Child (FindLaw’s Legal Grounds) What is Medical Malpractice? What is Not? (FindLaw’s Injured)
continue reading

Legal Options for Marijuana Users Convicted Before Decriminalization

Before states passed laws decriminalizing the possession of marijuana, thousands of people were arrested, convicted, and sentenced to jail for possession. For many who were convicted for marijuana possessions, their crime is no longer a crime under new state laws, which allow adults to possess a small amount of marijuana. However, those already convicted are still in prison serving sentences for outdated law. Is there any legal recourse for those who were convicted before marijuana possession became legal? Ex Post Facto Laws Are Prohibited Under Article I, Section 9 of the U.S. Constitution, ex post facto laws are prohibited. An ex post facto law is "a law that retroactively alters a defendant's rights especially by criminalizing and imposing punishment for an act that was not criminal or punishable at the time it was committed, but increasing the severity of a crime ... by increasing the punishment for a crime ... or by taking away from the protections afforded the defendant." So, laws cannot be applied retroactively to convict you of a crime that wasn't a crime when you committed it. Retroactive Amelioration Relief Similarly, a new law decriminalizing a crime cannot be used to decrease or end a conviction that occurred prior to the new law's passage, unless the law has a retroactive amelioration clause. For example, California passed Proposition 36 to amend the three strikes law to impose life sentence only when a third felony conviction is serious or violent. Before the amendment, many were sentenced to life in prison for non-violent crimes. The change wouldn't lessen their sentence. However, Proposition 36 also allowed courts to re-sentence offenders currently serving life sentences for non-violent third strike convictions. Proposition 36 allowed for retroactive ameliorative relief. Applying for a Pardon Unlike California's Proposition 36, Colorado and Washington laws decriminalizing and legalizing marijuana possession do not have any retroactive amelioration clauses. Instead, current convicts may be able to get relief by applying for a pardon from their state's governor. Applying for and receiving a pardon is a very hard process and a rare success. If you need help applying for a pardon, consult with an experienced criminal defense attorney. Related Resources: Browse Criminal Defense Lawyers by Location (FindLaw's Lawyer Directory) Georgia Legalizes Medical Marijuana: A Roundup (FindLaw's Blotter) Under D.C.'s Recreational Marijuana Law, What's Legal, What's Not? (FindLaw's Blotter) Is it Legal to Search Based on The Smell of Marijuana? (FindLaw's Blotter)
continue reading

Was Your Privacy Compromised by the OPM Hack?

The recent hack of the Office of Personnel Management exposed the personal information of some 21.5 million people. That's almost 15 percent of the country. So understandably, it may take some time to notify all those people. Could you be one of them? Here's what the OPM does, and why they may have your personal information. Federal HR The OPM handles job postings for the federal government, sets policies for hiring those positions, and conducts the background investigations for prospective employees and contractors. So not only would they have personal information for federal employees, but also for references and contacts those employees listed for their background checks. As noted by The Hill, "The total includes 19.7 million contractors and employees who went through security clearance checks going back to 2000 and 1.8 million non-government workers, such as spouses and relatives, named in those checks." And the information for those individuals includes everything from the standard Social Security Numbers, addresses, and employment history to criminal records and even (1.1 million!) fingerprints. You, Too? So if you work for the federal government, or you know someone who does, it's possible your information was compromised. While many think hackers in China are responsible for the data breach, the source remains unknown, as do the motives behind the hack. The number of affected people as also varied. Initially, the government said 4.2 million personnel files were exposed, and almost of those have been notified already. A month later, the total number exploded to over 20 million, and OPM is still not sure how it will contact everyone. If you've never applied to a federal government position, worked for the feds, or been contacted regarding someone else's application, you're probably safe. In the meantime, you should take steps to protect your privacy, and keep a close eye on your bank records and credit report. Related Resources: 22 Million Affected by OPM Hack, Officials Say (ABC News) OPM Hack: Overview of the Long Term Implications (FindLaw's Technologist) Snapchat Hacked: 4.6M Users' Data Published (FindLaw's Law and Daily Life) Anthem Hack Spurs 'Phishing' Email Scam: How to Stay Safe (FindLaw's Common Law)
continue reading

Fracking Health Risks: Latino Children in Danger?

A new lawsuit claims that California's failure to regulate the fracking operations in the state has disproportionately endangered the health of Latino children. Rodrigo Romo has sued Governor Jerry Brown and California's Division of Oil, Gas & Geothermal Resources, seeking to invalidate recent fracking legislation and bar current fracking operations. Romo's claims center on the proximity of fracking wells to schools -- specifically the school his daughters attend, Sequoia Elementary School, which sits just half a mile from three wells. What the Frack? Romo's lawsuit alleges some sobering facts. As reported by Courthouse News: The Kern County resident claims that 5.4 million Californians live within a mile of an active oil or gas well, and that a disparate amount of such schools have with large Latino enrollments. He says one of his daughters began to suffer severe asthma and epileptic attacks since fracking began 1,200 feet from her elementary school. The suit also claims that teachers often keep schoolchildren inside, banning outdoor recess for weeks because of "bad smells assumed to be associated with the well stimulations." Eighty-six percent of Sequoia's enrollment is Latino. That's Fracked Up. Gov. Brown signed new fracking regulations into law two years ago, but Romo and others contend the provisions of SB-4 don't go far enough. While the regulations focus on groundwater protections, Romo claims his daughter has suffered from asthma attacks and epileptic seizures since the fracking well opened near her school. An independent study into the health risks of fracking called for additional controls on chemicals and even a ban until scientists can gather more definitive data on fracking's impact on the environment and human health. And a Texas family recently won a $3 million fracking pollution lawsuit against a drilling company, which could provide some precedent for Romo's suit. In that case, a nearby well caused the family years of sickness, killed livestock and pets, and eventually forced them off of their 40-acre ranch. Related Resources: Fracking Called Special Threat to Latino Kids (Courthouse News Service) Does Fracking Settlement's Gag Order Apply to Kids? (FindLaw's Legally Weird) Colo. Fracking Site Explosion Leaves 1 Dead, 2 Injured (FindLaw's Injured) Vermont Bans Fracking, Citing Injury Concerns (FindLaw's Injured)
continue reading

Can I Sue for Being Overworked?

You’re lucky if you work 40 hours per week. Many other employees work 50, 60, or even 70 hours per week. Constantly working too many hours can have serious negative impact on your health, your state of mind, and even your social life. Are you overworking yourself because you need extra money? Or, is your employer overworking you because the business doesn’t want to hire another employee? Can you sue for being overworked? No Law Limits an Employee’s Hours There is no law limiting the total number of hours an employer can make an employee work. So, there is no cause of action for you to sue for being overworked.However, there may be other issues that can enable you to sue or to seek compensation. Overtime Pay An employer can require you to work as many hours as they want as long as they pay you. Federal and state labor laws require overtime pay for hours worked above a certain level. Under the Fair Labor Standards Act, employers must pay overtime if an employee works more than 40 hours per week. Any hours worked over 40 hours must be paid at one and one half the employee’s regular rate of pay. Sadly, this rule currently does not apply to exempt employees who perform executive, professional, or administrative duties. Some state laws are even more generous to employees. In California, employers must pay overtime if an employee works more than eight hours per day, even if they do not eventually work more than 40 hours per week. If your employer is making your work more than 40 hours per week or 8 hours per day, in certain states, without paying overtime, consult an experienced wage and hour law attorney for help. Workers’ Compensation In addition to suing for overtime, you may be able to make a workers’ compensation claim if overworking affects you physically. According to the Mayo Clinic, working too much can cause headache, neck pain, back pain, depression, or chronic fatigue. Also, if you work more than 10 hours per day, you have 60 percent higher chance of getting a heart attack than someone who works only eight hours per day. When you are injured at work by your work duties or the conditions of your work, workers’ compensation pays you for your medical bills and lost wages. If you suffer an injury because you are overworked, consult with an experienced personal injury attorney for help. Related Resources: Hurt on the job? Have your injury claim reviewed for free. (Consumer Injury) Ca. Overtime Laws Apply to Nonresident Workers (FindLaw’s Free Enterprise) Could Young Associate’s Death Have Been From Overworking at Firm? (FindLaw’s Greedy Associates) Did Long Hours, Overwork Kill Skadden Associate, 32? (FindLaw’s Greedy Associates)
continue reading

What Is ‘Extreme Indifference’ Murder?

A jury yesterday found James Holmes guilty on all murder counts in the Aurora, Colorado movie theater shooting. Holmes killed 12 people in the shooting, and was charged with two murder counts for each: murder in the first degree after deliberation, and murder in the first degree with extreme indifference. But what is extreme indifference murder, and how does it differ from a standard first degree murder charge? Colorado Law and the Theater Shooting Colorado's homicide statutes define extreme indifference murder as knowingly causing the death of another "under circumstances evidencing an attitude of universal malice manifesting extreme indifference to the value of human life generally," while the defendant was "engaged in conduct which created a grave risk of death to a person or persons other than himself." The charge is reserved for severe crimes and refers as much to the defendant's intent as to the result. Holmes opened fire on 400 moviegoers, firing 76 shots into the crowded theater and hitting a total of 70 people. Once the jury decided that Holmes wasn't insane at the time of the shooting, it is a short step to decide he acted with an extreme indifference to human life. Extreme Indifference and Depraved Heart Laws Other states have extreme indifference or depraved heart murder laws, and in some states acting with extreme indifference can be an aggravating factor in assault or manslaughter charges. In fact, Baltimore Police Officer Caesar R. Goodson, Jr. was charged with second degree depraved heart murder in the homicide of Freddie Gray. Goodson was driving the van when Gray suffered a fatal spinal injury. Often, it is easier for prosecutors to prove extreme indifference, because they don't need to demonstrate a specific intent to kill a particular person, only conduct that creates a risk of death to any other person or persons. The idea behind the laws is to deter excessively dangerous behavior and provide for additional punishment for wanton crimes. Related Resources: James Holmes Faces 142 Charges in CO Theater Shooting (FindLaw Blotter) What Is Intent to Kill? How Do You Prove It? (FindLaw Blotter) First Degree Murder Overview (FindLaw) Colorado First-Degree Murder (FindLaw)
continue reading

James Holmes Guilty in Colorado Movie Theater Shooting

A jury has found James Holmes guilty in killing 12 people and wounding 58 others. Holmes opened fire on a crowd during a showing of The Dark Knight in an Aurora, Colorado movie theater in 2012. The jury, selected from 9,000 possible candidates and short four members who had previously been dismissed, came to the verdict after just over a day of deliberation. The jury also found Holmes guilty of attempted murder and assorted weapons charges. Jury Found the Insanity Defense Unconvincing Holmes had argued that he was insane at the time of the shooting, and it was up to the state to prove he knew the nature of the crime and could distinguish between right and wrong at the time the crime was committed. By finding Holmes guilty on all first degree murder and murder with extreme indifference charges, the jury clearly found his insanity defense unconvincing. Holmes' psychiatrist also came under fire after the shooting, and was criticized for not adequately warning law enforcement regarding Holmes' violent inclinations. Will James Holmes Face the Death Penalty? While capital punishment is available in Colorado, the state has only executed one person in the last 37 years. In this case, however, prosecutors sought the death penalty and now that Holmes has been found guilty, the court will move on to the penalty phase of his trial. During the penalty phase, attorneys from both sides will present evidence as to the proper punishment. Like Dzhokhar Tsarnaev before him, Holmes will be arguing against the death penalty and will likely put his mental state at issue again. If he is not given the death penalty, he will likely be sentenced to life in prison. There are currently three people on death row in Colorado, including Nathan Dunlap, who was convicted of murdering four people at a Chuck E. Cheese in 1994. Related Resources: James Holmes Found Guilty of Murder in Aurora Theater Shooting Trial (ABC News) 'Dark Knight' Shooting in CO: 12 Dead, 50 Hurt (FindLaw Blotter) For James Holmes, Death Penalty is Far from a Certainty (FindLaw Blotter) Death Row Appeals: Rights and Limitations (FindLaw Blotter)
continue reading

Can You Sue for Being Stuck in an Elevator?

What’s your worst nightmare? Mine is getting stuck in an elevator. There’s a slight twinge of fear every time I step in an elevator. The fear grows when more than three people enter it with me. When the doors don’t open right away when the elevator reaches my level, the fear turns into momentary panic. Don’t laugh. Getting stuck or injured in an elevator is not as rare as you would think! If you ever get stuck in an elevator, can you sue? Elevator Malfunctions and Injuries While elevator accident aren’t as common as car accidents, the U.S. Bureau of Labor Statistics and the Consumer Product Safety Commission reports that as many 30 people are killed and 17,000 injured in elevator accidents every year. In 1999, Nicholas White was stuck in an elevator for 41 hours before he was rescued. In 2003, Dr. Hitoshi Nikaidoh was killed and decapitated when an elevator’s doors trapped him, and the elevator began to rise with him half in and half out of the elevator. Karin Steinau was already in the elevator when Dr. Nikaidoh was killed. When the elevator finally stopped halfway between floors, Steinau was stuck in the elevator with Dr. Nikaidoh’s decapitated head for over an hour! Unsurprisingly, all three people I just mentioned sued. Negligent Infliction of Emotional Distress In many elevator lawsuits, the elevator manufacturer, the elevator maintenance company, or the building owner may all be sued for negligent infliction of emotional distress. To win such a claim, victims will have to show: Duty — The defendant owed some kind of duty, usually the duty to maintain, to the victim. Breach — The defendant failed to do his duty. Usually, this means the manufacturer created a dangerous and unsafe elevator, or the maintenance company failed to make necessary repairs. Causation — The elevator’s malfunction caused the victim’s injuries. Damages — The victim suffered harm, such as mental distress, and damages. Usually, the question of damages is the hardest to prove. To get damages for emotional distress, courts often require the distress to be connected to or manifested as some kind of physical injury. So, unless you suffered an injury such as a broken bone when the elevator dropped abruptly, or an ulcer caused by stress and fear, you may not be able to win any compensation. If you’re ever injured after being stuck in an elevator, consult an experienced personal injury attorney for help. But, better yet, avoid the issue altogether and take the stairs. It’s healthier and less scary. Related Resources: Injured in an accident? Get your claim reviewed by an attorney for free. (Consumer Injury) Intentional Infliction of Emotional Distress (FindLaw’s Learn About The Law) Do You Have Privacy Rights in an Elevator? (FindLaw’s Law and Daily Life) NYC Elevator Accident Witness to Sue for Trauma (FindLaw’s Injured)
continue reading

Can Parents Re-Home an Adopted Child?

Raising kids is hard. Anybody who becomes a parent thinking that it will be easy, probably shouldn't be allowed to be a parent in the first place. Raising an adopted child can be especially challenging. Often, these children have been abused and traumatized before they are adopted. Many have psychological issues that require extra resources and care. However, many adopted parents excitedly bring home a child from Africa or Asia thinking that they'll just live happily ever after. /p>When things get rough, and the children act up, some parents are quick to dump the adopted kids on another family through a process called re-homing. Is re-homing legal? Technically, Re-Homing Is Legal In most states, re-homing is legal and easy. Adoptive parents can easily rid themselves of a burden by simply signing a power of attorney. With a quick signature, the adopted children are put into the custody of random people who have not gone through a background check or home study. This is why re-homing can be a recipe for disaster. The Case of Arkansas State Representative Justin Harris The dangers of re-homing are epitomized in the case of Arkansas State Representative Justin Harris and his wife. In March 2013, the Harrises adopted two young girls, ages 5 and 3, through the Arkansas Department of Human Services. Only six months after the adoption, the Harrises sent the girls to live with Eric Francis, a "trusted friend," and his wife. This "trusted friend" worked for the Harrises for only three months, from November 2013 to January 2014, when he was fired for poor attendance. This "trusted friend" ended up raping one of the girls. He was convicted and sentenced to 40 years in prison. Re-Homing Is Banned in Several States In response to this horrific story, Arkansas recently passed a law that forbids parents from re-homing their children with another household, except for close relatives, without court approval. Violation of the law is a felony punishable by up to 5 years in prison and a fine of $5,000. Currently, Colorado, Florida, Wisconsin, and Louisiana also have similar laws banning re-homing. Ohio is also considering legislation that would require court approval before parents can re-home their adopted children. If you've adopted a child and cannot handle the responsibility, consult with an experienced family law attorney before you take a drastic step such as re-homing. Related Resources: Browse Family Law Lawyers by Location (FindLaw's Lawyer Directory) The Adoption Option: Should You Adopt? (FindLaw's Law and Daily Life) 7 Types of Adoption: What You Need to Know (FindLaw's Law and Daily Life) Can I Reverse an Adoption? (FindLaw's Law and Daily Life)
continue reading

Diet Pepsi Dumps Aspartame: Cause for Concern?

In April, Pepsi announced it would remove aspartame from its formula for Diet Pepsi, which led many to wonder if the move was due to health risks associated with the artificial sweetener. But Pepsi also said Diet Pepsi with aspartame would remain available online, and Diet Coke will continue using aspartame. So, are aspartame and other natural sweeteners dangerous to consumers? Or is Pepsi just bowing to Internet rumors and public (mis)perception? Aspartame Safety Thus far, there have been no proven links between aspartame and many of the negative health risks with which it is associated. As David Hattan, Acting Director of the Division of Health Effects Evaluation in the United States Food & Drug Administration (USFDA) Center for Food Safety and Applied Nutrition, points out, aspartame has been studied continuously since 1978: "The legitimate attempts that have been made to confirm and replicate allegations of adverse reactions from aspartame ingestion have not been successful and the USFDA continues to consider this to a be among the most thoroughly tested of food additives and that this information continues to confirm the safety of aspartame." The lawsuits filed involving aspartame have been confined to price fixing cases, so as of now, there don't seem to be increased health risks associated with aspartame specifically (although drinking too much diet soda may not be good for you, generally speaking). Products Liability Claims If aspartame were dangerous, or if someone felt they were harmed by aspartame ingestion, the likeliest recourse would be a product liability claim. Product liability lawsuits are based on the legal premise that companies have a duty to protect consumers from potential health and safety hazards. Since manufacturers generally have more insight and knowledge about their products, courts have found it falls to them to assume financial responsibility for any injuries or damage caused by their products. There are several legal theories used to prove fault in a product liability case, and the law surrounding products liability can be complicated. If you think you've been injured by a defective or dangerous product, you should consult with an experienced personal injury attorney. Related Resources: Hurt by a product or accident? Get your claim reviewed for free. (Consumer Injury) Legal Basis for Liability in Product Cases (FindLaw) Defective Products and Products Liability (FindLaw's Injured) Injuries and Product Liability: Do You Have a Case? (FindLaw's Injured)
continue reading