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Study: Payouts Are up in Medical Malpractice Lawsuits

Insurance companies might be seeing fewer medical malpractice claims, but they seem to be awarding more money to the injured patients that do make them. A new study found that paid medical malpractice claims declined almost 56 percent between 1992 and 2014, but the average payout for a successful malpractice claim jumped over 23 percent, reaching $353,000 for the 2009-2014 time period. So what accounts for the decline in claims and rise in payouts? And what does it mean for future medical malpractice plaintiffs? Fewer Claims = More Money The research comes from physicians at Brigham and Women's Hospital, who analyzed numbers from a centralized database of paid malpractice claims: Researchers report that the overall rate of claims paid on behalf of all physicians dropped by 55.7 percent. Pediatricians had the largest decline, at 75.8 percent, and cardiologists had the smallest, at 13.5 percent. After adjusting for inflation, researchers found that the amount of the payment increased by 23.3 percent and was also dependent on specialty. Neurosurgery had the highest mean payment, and dermatology had the lowest. The percentage of payments exceeding $1 million also increased during the same time period. Dr. Adam Schaffer, an instructor at Harvard Medical School and lead author of the study, speculated that recent tort reform, which places statutory limits on medical malpractice damages, could be responsible for the decline in paid claims. "Fewer attorneys could be interested in taking claims if there's going to be a smaller potential payout, given that most attorneys are paid on a contingency basis," he explained. Schaffer also pointed to claim screening panels and additional procedural hurdles to explain the decline in claims, but this could also account for the rise in payouts -- if only the most ironclad malpractice claims are being made and meeting the procedural requirements, the average payout per claim would be expected to rise. What Does It All Mean? The study could mean that lawyers are more skittish about taking on medical malpractice cases, but those that they do accept might be in for a bigger payday at the end. Medical malpractice claims are complicated, and even just dealing with a physician's insurance company can be difficult. If you've suffered an injury in a medical context, contact and experienced attorney near you. Related Resources: Think you have a medical malpractice claim? Get your claim reviewed by an attorney for free. (Consumer Injury) Fewer Medical Malpractice Lawsuits Succeed, but Payouts Are Up (CBS News) Getting Paid: Collecting on a Judgment or Jury Award (FindLaw's Injured) How Much Is Your Personal Injury Case Worth? (FindLaw's Injured)
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How Much Is a Dog Bite Injury Lawsuit Worth?

When it comes to evaluating the value of any injury case, most people understand that bigger injuries correlate to bigger settlements. When it comes to dog bites and animal attacks, the owners will usually be held liable, barring extraordinary circumstances. Not all animal bite cases will be severe injuries, or equate to large monetary damages. Typically, larger monetary awards occur if an animal attack leaves visible scarring, requires surgery extended medical care, or results in the need for mental health therapy, such as PTSD counseling. What’s a Dog Bite Case Worth? An injury settlement or award will generally reimburse an injury victim for their medical bills, out of pocket expenses, lost wages, and other consequential damages. However, if a person receives a settlement that includes reimbursement for medical bills, they may be required to pay back a health insurer, or even pay outstanding medical bills (if any). A person can also receive monetary compensation for pain and suffering. Usually awards for pain and suffering will depend on the severity of the injury and the extent to which the recovery and injury disrupted a person’s regular life. There is no standardization to the valuation of pain and suffering. When to Sue? After being bitten by a dog, you may be very upset, to the point where you may consider suing simply as a matter of principle. But all strong feelings aside, when should you actually take steps to bring legal action? Is it worth your time to sue? Here are a few points to consider:Frequently, a pet owner’s home-owner’s insurance will provide coverage for dog bites. But, if the pet owner responsible for your injuries is uninsured and has no assets, then there may be no way to actually collect a judgment.The decision not to sue for this reason, however, should be carefully evaluated with the help of an attorney. Also, if you decide not to sue, you may wish to re-evaluate that decision down the road. But be forewarned, most injury claims must be brought within one or two years, depending on your state law. Related Resources: Injured in an accident? Get matched with a local attorney. (Consumer Injury) How Much is My Pet’s Injury Worth? (FindLaw’s Injured) Housemates Could Be Liable for Dog Bites (FindLaw’s Injured) Dog Bite Injuries: Do You Have a Case? (FindLaw’s Injured)
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Cristina Arguedas Presented with 2017 White Collar Criminal Defense Award

The National Association of Criminal Defense Lawyers (NACDL) and Stetson University College of Law presented Cristina C. Arguedas with the 2017 White Collar Criminal Defense Award this last weekend.  It was an honor to be there and witness both the presentation and her acceptance of the award. Cris Arguedas was awarded this prestigious honor for her work in the FedEx case.  The successful defense of FedEx can only be described as a hero’s tale.  The irony that this defense was spearheaded by a woman and a small team isn’t lost on me. It’s amazing when you really consider the consequences of this win.  Not only is this one of the few times that a corporation has dared to take on the United States Government in a criminal prosecution.  But to consider that the herculean task of defending a corporate case of this size and magnitude was accomplished without an army of lawyers – which is typical in a corporate white collar case – not only speaks volumes about Arguedas but of the importance of mounting a defense at all.  More often than not the army of lawyers aren’t challenging the Government or forcing the Government to trial, but rather are working their way to a negotiated settlement.  It really doesn’t matter how many lawyers are representing a corporation if the evidence remains untested. As I have said before, it is easy to champion a winning theory in a conference room; it is a far different thing to champion it in the courtroom.  And that is exactly what Arguedas did in the FedEx case. The case completely imploded within days after the trial started. I am personally proud that this historical victory was led by one of our sisters in the field.  I have previously shared how much I admire Arguedas – and I am not alone.  She is without question one of the legends in the field.  Barry Pollack, President of NACDL, presented the award and gave a wonderful speech in which he imagined that legends in the field would have their own trading cards that we could collect, with trial victories and stats on the back. Since Arguedas was inducted into the Trial Lawyers Hall of Fame in 2010 with Penny Cooper – another legend – his analogy was more than appropriate. As would be expected from Cris Arguedas, she accepted the award with grace and humility.  She didn’t take the opportunity to bask in the limelight but rather spoke passionately about the dangerous landscape of corporate criminal prosecutions, which has amounted to nothing short of Government bullying of Corporate America.  She shared with us the amount of pressure that she shouldered to fight against the baseless charges that she confronted in the FedEx case and the amount of painstaking preparation that went into the defense.  Indeed, the trial judge took the unusual step of concluding, on the record at the time of dismissing the charges, that FedEx was “factually innocent.” Arguedas’ acceptance speech was emblematic of everything that makes her great.  She is a true defender in every fiber of her being.  She is a fierce advocate.  The takeaway is that it does not take an army to fight an injustice lobbed by the Government.  Rather, it takes the spirit of a lion and the courage to strike back in defense. It’s that simple. The post Cristina Arguedas Presented with 2017 White Collar Criminal Defense Award appeared first on Women Criminal Defense Attorneys.
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How Does SSDI Impact an Injury Lawsuit?

If you are on SSDI and are considering filing a lawsuit or pursuing an injury claim, you may be concerned about how a settlement or court award could impact your receipt of benefits. Social Security Disability Insurance is a federal program designed to assist disabled individuals that are unable to work by providing those individuals with an income source. While SSDI will want to know if you have received wages, the general rule is that an injury settlement or court award for an injury case are not wages, UNLESS a portion of that award is meant to compensate you specifically for lost wages. Also, it should be noted that if you receive punitive or exemplary damages, or any interest on the award, these may also be concerned as unearned income. Can SSDI Affect Your Settlement? While your SSDI is generally safe from loss as a result of an injury settlement or court award, your settlement or award may be less than you might expect because of your SSDI. Often, injury plaintiffs are disappointed when they find out that their cases are not as highly valued as they expected. Many times, a case’s high value lies in the plaintiff’s status as a high-wage earner. If someone who makes $1,000,000 per year misses one day of work because of the injury, that one day of lost wages could be worth at least $2,700 or more. If that person misses ten days, that can add $27,000 to their case. If you are on SSDI, there will be no wage loss to recover because SSDI covers your wages, and therefore, any settlement may feel a little bit lower than you might have expected. Don’t Confuse SSI With SSDI It is important to not confuse SSI with SSDI. Supplmental Security Income (SSI) is a need-based federal program that provides disabled and elderly individuals with income to supplemental SSDI or regular social security benefits. Any income or monies a person receives can have an impact on a recipient of SSI benefits. It is highly advisable for a recipient of SSI to seek the advice of an attorney regarding how to handle settlement or court award money as SSI benefits can be easily lost if a person receives a lump sum. Related Resources: Injured in an accident? Get matched with a local attorney. (Consumer Injury) If You Can’t Get Workers’ Comp, Can You Get SSDI? (FindLaw’s Injured) 5 Things a Personal Injury Lawyer Can Do (That You Probably Can’t) (FindLaw’s Injured) Personal Injury Lawyer Dropped Your Case? Now What? (FindLaw’s Injured) When to Sue a Pediatrician for Malpractice (FindLaw’s Injured)
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Driver Liability for Cell Phone Related Car Accident

How an accident happens will largely determine who is ultimately held liable. If the at fault driver was found to have caused the accident while talking or texting, they will likely have more difficulty defending their case, and they may potentially face additional penalties. Nearly every state has laws on distracted driving, and most include some limitations on the use of cell phones by drivers. Regardless of whether you have an ear piece, integrated Bluetooth, or speakerphone system, if you are talking or texting on a cell phone while driving, an officer or other party can claim that you were driving while distracted. According to the most recent report by the NHTSA, one in ten on the road fatalities involved distraction. Accidents While Phoning or Texting If a driver is found to be at fault for an accident, then they can also be found liable for the injuries and property damage they caused. While a majority of auto accident cases settle out of court, the facts concerning how the crash happened are relevant to establishing the injured party's case for damages. When a jury is asked to decide an auto accident injury case, they will usually be tasked with deciding two primary issues:Whether the defendant caused the injuries and damages.How much money should be awarded to the plaintiff for suffering the injuries and damages. In most jurisdictions, if both parties are considered to be partly at fault, or fault is uncertain, the party that is found to be more than 50% at fault, generally is the party held responsible for the damages. If a party was on the phone when the accident occurred, they may be found some percentage (comparatively) at fault. In states like California, if a driver is found to be 25% at fault, any award they receive will be reduced by their percentage of fault. Rear-Ended While Talking on the Phone There are some auto-accident cases where it won't matter if the victim was on the phone or texting. If you are stopped at a red light, and you get rear-ended while texting or talking on the phone, it is highly unlikely that your texting or talking had anything to do with causing the accident. In this sort of a situation, your phone use, while still potentially against the law, generally cannot be used to attack liability. Related Resources: Find Personal Injury Lawyers in Your Area (FindLaw's Lawyer Directory) What's More Dangerous Than Texting and Driving? (FindLaw's Injured) 1 in 4 Car Crashes Involves Cell Phone Use: Report (FindLaw's Injured) Is Apple Liable for Distracted Driving Accidents? (FindLaw's Injured)
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Suing Over Flawed Metal Hips Used in Replacements

After a trial in Texas this year, Johnson and Johnson was ordered to pay $502 million to five plaintiffs injured by the company’s flawed artificial hips. The hips, sold under the name Pinnacle, leached metals into patients’ bodies and failed prematurely, forcing the plaintiffs to undergo additional surgeries and endure more pain. A federal jury was definitely feeling the plaintiffs’ pain, considering that it awarded them $360 million in punitive damages based on Johnson and Johnson hiding flaws in the product and marketing the hips aggressively anyway. Let’s look at the claims, as reported by Bloomberg News, and what this means to you. Second Try This was not the first case complaining of Johnson and Johnson’s metal hip product — there are about 8,000 such cases filed reportedly, now consolidated in Texas federal court for pretrial procedures. But this was the first to succeed, as Johnson and Johnson won a prior trial by arguing that a surgeon had failed to properly place the hip in the patient’s body. In the more recent matter, all five patients had to have their Pinnacle replacement hips replaced surgically after they broke down prematurely due to the materials used and design flaws. The plaintiffs were awarded $142 million in compensable damages, apart from the $360 million in punitive damages, making for a total award of $502 million. But immediately after the jury decided to punish Johnson and Johnson, company attorney John Beisner told Bloomberg News that the company will appeal. He expects the damages award to be reduced substantially. “The grounds for appeal are strong and the punitive damages will be reduced to around $10 million subject to the Texas statutory cap,” he said. What This Means There are thousands of outstanding cases filed against Johnson and Johnson over the Pinnacle metal hip. Interestingly, the company stopped manufacturing the product in 2013 after US Food and Drug Administration regulations were tightened. It’s also notable that Johnson and Johnson already entered into a $2.5 billion settlement in 2010 over claims surrounding another of its artificial hips. Although it is unfortunate that people have suffered due to the company’s flawed devices, Johnson and Johnson’s track record with replacement hips and the outcome of the recent trial indicate that if you have been injured due to a flawed replacement hip, your chances of recovery are very good. Of course, no one can say much about a case in the abstract, so you will have to speak to a lawyer about the specifics. An attorney can assess your claim and advise you on next steps. Talk to a Lawyer If you’ve been injured due to a faulty hip replacement, or for any other reason, talk to a lawyer. Many attorneys consult for free or a minimal fee and will be happy to discuss your case. Related Resources: Injured by a metal hip replacement? Get your claim reviewed free. (Consumer Injury) Metal Hip Replacement Lawsuit (FindLaw’s Learn About the Law) DePuy Hip Implants (FindLaw’s Learn About the Law) DePuy Hip Replacements: FDA Takes Closer Look (FindLaw’s Injured)
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Can I Sue for Snowball Injuries or Property Damage?

You’re dreaming of a white Christmas and everything that entails, like sledding, skating, and snowballs. But what if someone breaks a window, or worse, a skull, in a snowball fight? Rest assured, you can sue if you are injured due to someone’s negligence. Also, you can be sued for any damage you cause to a person or property with a snowball or otherwise. The elements of negligence are always the same, regardless of how injury occurs. So before the eggnog flows and you traipse out into the snow, let’s look at negligence in a nutshell. Negligence Explained To succeed in a negligence suit, a plaintiff must prove that the defendant owed them a duty of care, breached that duty, and caused a harm for which there are compensable damages. In the context of a snowball fight, you assume some risk of injury, so it may be challenging to prove a suit. Still, you can do it. A friend can be negligent. Say, your friend packs a rock in a snowball and hits you in the head, causing brain damage. You thought you’d be tossing soft puffs that disintegrate in a shower of flakes, not lobbing deadly projectiles. In that case, you can certainly make a negligence claim and expect to be awarded compensation for expenses associated with your injuries. Similarly, if you hit a person or property, you can be liable for injury. A plaintiff who can show duty, breach, causation, and harm will succeed in a negligence claim, whether or not they have agreed to join the fun. A Snowball’s Chance in Hell Snowball lawsuits have been filed before but make sure you can back a claim if you do sue. In 2010, a snowball fight after a Seattle Seahawks game became the subject of a suit. The plaintiff claimed emotional distress about the flakey fracas. But there was footage showing everyone having a good time. Speak to a Lawyer If you are injured in the snow this winter, see a doctor and speak to a lawyer. You may have a negligence claim. Let a lawyer assess your case; many attorneys do not charge for an initial consultation. Related Resources: Have an injury claim? Get your claim reviewed for free. (Consumer Injury) Negligence Background (FindLaw) Defenses to Negligence Claims (FindLaw)
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Tips for Defending Against a Frivolous Injury Lawsuit

You have been served with an injury lawsuit and from your point of view, it is a frivolous claim. But you still have to defend yourself. So how do you do that? Let’s take a quick look at negligence and how you defend it by negating the elements of the claim. Negligence, in Brief The elements of negligence are duty, breach, causation and harm (or injury). To defend against a claim of personal injury, you will have to negate an element of negligence. In brief, the plaintiff will argue that you owed them a duty of care, that you breached that duty, and that the breach caused a harm or injury which is compensable. Damages are only awarded if all of that can be shown. For the defendant, only one element must be disproven to defeat the case. How to Negate the Elements of the Frivolous Claim You need not negate every element and some might be impossible to disprove. Duty of care, for example, may be difficult to disapprove as the duty arises from a relationship — personal, professional, service, or other — and is likely the basis for your being named in the claim. Still, you might argue that you owed the plaintiff no duty of care. Whether that is plausible depends on the details of the case. If the person injured had only the most tangential relationship to you, perhaps you owed them no duty. A more likely argument is that you did not breach the duty of care. Even if you were in some sort of relationship with the plaintiff, you can still argue that you behaved as a reasonable person would under same or similar circumstances. In other words, you owed a duty and did not breach it. If you can show no breach, you have already succeeded — you cannot be held liable for an injury if you behaved as a reasonable person would under same or similar circumstances. The same principles apply to causation and harm. The plaintiff argues you caused the harm. You try to show that there were intervening causes that were not foreseeable or that you just did not cause it at all. Finally, you might argue that there was no injury or that the injury is not as severe as the plaintiff argues and that the damages sought far exceed actual harm. Talk to a Lawyer There is really no way around this. You need a lawyer. Although the injury claim may seem frivolous to you, lawsuits involve a lot of paperwork and deadlines and administration. You do not want to defend yourself alone and you should not try. If paying for defense counsel seems prohibitive, just contemplate paying damages. Plaintiffs Too The same advice goes for plaintiffs. You need representation. If you have been injured, consult with a personal injury attorney who will assess your claim for free. Related Resources: Have an injury claim? Get your claim reviewed for free. (Consumer Injury) Meeting With an Injury Attorney (FindLaw) Fact Finding and Discovery (Findlaw)
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Businessman’s $21 Million Brain Injury Verdict Threatened

A man who successfully sued a cruise line for a head injury may not see his $21 million in damages after all. The man’s former assistant has revealed that she lied about his brain injury for him before the trial and was then fired right before the case was going to be heard, reports The Seattle Times. James Hausman won $5 million in compensatory damages and $16 million in punitive damages for an injury he sustained due to a faulty sliding glass door on a Holland America cruise ship. The company, having learned from Hausman’s former assistant that he deleted emails, tampered with witnesses, and exaggerated the severity of his injury, is seeking to have the jury verdict overturned. Lying Now or Before Amy Mizeur, who served as Hausman’s personal assistant until just before the case went to trial, testified at a hearing in federal court in Seattle that her former employer ordered her to lie about injuries. She said she enrolled him for a brain-injury study although she knew he was faking seizures. Mizeur even admitted to documenting fake seizures in emails written to others, saying, “It was a show. I never saw him struggle.” The former assistant turned to Holland America after the trial was over and after she was fired, letting the insurer know that she had helped her former employer falsify evidence. But Hausman’s lawyer pointed out that she could hardly be trusted. After all, Meizer either lied after the trial or before, so she was not a reliable witness. What’s at Stake? The unanimous verdict in Hausman’s personal injury lawsuit was among the largest in recent memory in Seattle federal court. In addition to the punitive damages, Hausman, 61, was awarded $5 million for past and future pain, suffering and emotional distress. Now all of that is at risk as a court determines whether to dismiss the case or grant a new trial. Injured? If you have been genuinely injured in any setting — be it on a cruise ship or elsewhere — speak to a lawyer. Consulting with counsel costs nothing. Related Resources: Have an injury claim? Get your claim reviewed for free. (Consumer Injury) Brain Injury Symptims and Diagnosis (FindLaw) Brain Injury Lawsuit FAQs (FindLaw)
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Sharon Nelles and Julie Jordan attorneys for St. Joe Co in SEC settlement

Two women partners of Sullivan and Cromwell, Sharon Nelles and Julie Jordan, represented St. Joe Company in a recent accounting settlement with the SEC. St. Joe Co is a Watersound, Florida developer and landowner which the SEC claimed improperly overstated their residential real estate holdings after the financial crisis, and therefore materially overstated their earnings and assets during that period.  The SEC announced that St. Joe consented to pay 2.75 million fine.  The settlement has been widely reported in the news and two examples of the coverage are here and here. Five individuals, including the former CEO and CFO, also settled with the SEC – which involved financial settlements in addition to a bar against appearing or practicing before the SEC as an accountant for the either two or three-year periods depending on the individual. The SEC probe began after an activist investor, David Einhorn, took an aggressive position that the company had overstated values.  Neither the company nor the individuals entered an admission.   Sharon Nelles was honored this June by NOW in New York as a 2015 Women of Power & Influence Award for excelling in her field and blazing a path for the next generation of female leaders. In 2014 she was honored with the Women in Business Law Award in the financial regulation industry.  Julia Jordan is a member of the firm’s Women’s Initiative Committee, and active in the Women White Collar Defense Association. It is nice to see two successful women partners at the helm of case of this nature – a job well done. The post Sharon Nelles and Julie Jordan attorneys for St. Joe Co in SEC settlement appeared first on Women Criminal Defense Attorneys.
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