Archive for the ‘Medical Malpractice Liability’ Category
http://www.PreOp.com
Medical Malpractice and Patient Education Company Patient ED @ 617-379-1582 INFO
Your doctor has told you that you have a torn anterior cruciate ligament in your knee and has recommended arthroscopic surgery in order to repair it. But what does that actually mean?
The knee is one of the most complex and one of the most important joints in your body.
It is made up of bone, ligament and cartilage. Damage to any individual part can dramatically restrict the normal movement of the leg and can even interfere with the ability to walk.
Medical Malpractice
Let’s take a look at the way the knee joint is put together. The femur, or thigh bone, meets the fibula and tibia to create a flexible joint called the knee. Helping to stabilize the knee are the ligaments.
The ligaments in the knee are strong, flexible cords of tissue that hold the bones together. They maintain stability and allow the normal range of motion when you walk or run. The anterior cruciate ligament – or ACL — guides the tibia, or shin bone. It helps keep your feet below your knees and your legs from buckling as you walk.
Medical Malpractice
Twisting or bending the knee during sports or other strenuous activity can damage the ligament.
During an injury, patients often report feeling or even hearing a sudden “pop” in their knee at the exact moment when the ligament tears.
Other symptoms include swelling, restricted movement, pain and even the inability to stand on the affected leg.
Medical Malpractice and Patient Education Company
Duration : 0:1:41
A wrongful death occurs when someone is killed as a result of the negligent or reckless actions of another person. In situations where a person’s actions are intended to harm or kill the victim, it will be considered wrongful death as well.
Typically, only the immediate family of the victim, the spouse and children, are allowed to file a wrongful death claim. Sometimes, this will be extended to include the parents of the victim, particularly in instances where the victim does not have a spouse or children.
Causes of Wrongful Death
Wrongful death claims can result from any incident where a person’s death is caused by negligent or reckless behavior. These incidents can include:
· Motor vehicle accidents
· Defective products
· Surgical error
· Medical malpractice
· Nursing home abuse
· Construction accidents
· Workplace accidents
· Unsafe premises
· Plane crashes
Proving Fault
In order to win a wrongful death lawsuit, you must be able to prove that the person accused of wrongful death had an obligation to act in a certain way, and by failing to do so, caused the victim’s death.
The burden of proof in wrongful death cases is a “preponderance of the evidence.” This means you only have to show that it is more likely than not that the defendant’s actions led to the death of your loved one. This is considerably less than the burden of proof in a criminal case, where you need to prove guilt “beyond a reasonable doubt.”
Evidence needed to prove fault in a wrongful death case includes testimony from witnesses who saw the incident, medical reports, and police reports. In cases involving product liability, vehicle safety, or workplace safety, you might also need testimony from an expert witness.
Compensation
Generally, damages are awarded to financially compensate the victim’s family for their losses. Damages may be awarded for:
- Funeral expenses
- Medical expenses
- Pain and suffering
- Loss of companionship
- Loss of income
- Loss of inheritance
- Loss of benefits
If the person’s actions were intentionally meant to harm the victim, punitive damages may be awarded as well.
There is a time limit on filing a wrongful death claim, which varies by state. You will want to consult with your wrongful death attorney to make sure that you meet all deadlines for filing your lawsuit.
If you have a wrongful death claim in the Orlando, Florida area, please contact the law offices of Colling, Gilbert, Wright & Carter today to schedule an initial consultation.
Patricia Woloch
http://www.articlesbase.com/law-articles/understanding-wrongful-death-claims-706612.html
We are told by proponents of capitalism that people are inherently self-serving, even selfish, and this is true to some extent, it is only a half-truth at best. While humans are driven at least in part by selfish desires, they also have an inherent communal impulse with a deep-seated desire that all members of society be taken care of, especially those who are unable to care for themselves. In these days of late capitalism, where greed and selfishness occupy the highest places of notoriety, our communal impulse has found an unlikely outlet: the proliferation of lawsuits.
The Common Thread
What is commonly descried about lawyers and “other left-wing” advocates of the people is that they promote a culture of victimization. That is, they represent people who are in less-privileged portions of society, especially those unable to care for themselves, as victims of someone else’s actions.
While the status of victimhood may or may not be legitimate, it is unfortunately a prerequisite for receiving aid in a capitalist society.
TANSTAAFL
“There Ain’t No Such Thing As A Free Lunch” is one of the central edicts of capitalist philosophy. Since the rise of capitalism coincided with the closing of the commons, the destruction of shared, ownerless resources, the cost of every lunch must be accurately and minutely accounted for and paid by individual private parties.
So who pays for all the lunches (and breakfasts and dinners) when someone is disabled and cannot provide for him or herself? Families and communities used to step in to care for less fortunate members, but with fragmented families pulling in fewer resources and costs for care rising, this is no longer a sufficient solution. What new solution can be found to find the necessary resources to give vital and lasting care to those in need?
The Litigation Explosion
One of the interesting traits of most disability-causing events is that they can be (accurately or not) represented as the side effect of some highly profitable industry. Combine a penniless victim on the one side with a wealthy (and possibly guilty) agent on the other, and you have the elements of a very successful lawsuit. Lawyers have struck on this combination and found how often it can be successful. Once a few lawsuits succeed, more follow, constantly seeking new victims and those who can be represented as being responsible to file new types of lawsuits.
Dubious Attributions
Lawsuits vary widely in the degree to which their attribution of responsibility is credible. This is distinct from the accusation that a lawsuit is “frivolous” or that we have a “jackpot justice” system. The lawsuit is in response to a real, demonstrable harm, and the awards being given to the victim are not random. Although there is some element of variation among verdicts and settlements, statistics show that objectively-determined merit correlates strongly with increasing awards. But the amount people pay is more in proportion to the injury caused than in proportion to the degree of responsibility.
Some cases are more directly attributable than others. In drug liability cases and instances where a medical error led directly to injury, it is clear that the responsible party is the one who pays. In other cases, it is less clear, such as in so-called wrongful birth cases.
The Case of Wrongful Birth
Wrongful birth is the name given by detractors to lawsuits involving the birth of children with detectable genetic disorders, like Fragile X syndrome and Thalassemia, whose parents sue doctors who did not inform them that they should have tests done to detect whether they were carriers for these genetic disorders. The name comes from the line of argumentation used by medical malpractice lawyers, who claim that parents might have abstained from the conception of (or even aborted) children with these disorders if they had been properly informed. The people made responsible are obstetricians and genetic counselors who are responsible for informing parents of potential risks.
When juries hand down verdicts in favor of plaintiffs in these kinds of cases, they are saying not that the doctor is fully responsible, but that somebody has to pay for the care of this child. In addition, in medical malpractice, defective product, and bad faith insurance cases, juries are partly responding to the exploitive nature of the capitalist system. We all know we pay too much for health care, drugs, and insurance, and that someone is getting rich as a result, and our deep-seated, sometimes unconscious, outrage at the fact makes us more likely to say You (who are making such outlandish profits) have to pay for His or Her (the victim’s) suffering.
An Inefficient System
Unfortunately, this litigation system is, like all other capitalist systems, inefficient. A common myth of capitalism is that it is an efficient method for accomplishing tasks, but the truth is that it is really efficient at only one thing: generating wealth for a relatively small number of people. Many other things it does are done very inefficiently. Critics of the litigation system point to the fact that 54 % of the costs associated with lawsuits go to administrative costs, including paying for lawyers on both sides of the case. The majority of administrative costs (78 %) go to the defense of cases in which doctors actually did make a mistake that caused demonstrable harm to the victim. Although the majority of costs could be reduced if guilty doctors were simply made to pay, these percentages are comparable to privately provided services, like insurance, where 42-53 cents out of every dollar go into the company’s administrative costs and profits.
Although lawyers redistribute wealth, they are not Robin Hoods, they are just another capitalist institution providing a capitalist service and seeking their own profit as a cost.
Patricia Woloch
http://www.articlesbase.com/personal-injury-articles/rationalizing-wrongful-birth-and-other-lawsuits-748116.html
http://www.PreOp.com
Medical Malpractice and Patient Education Company Patient ED @ 617-379-1582 INFO
Your doctor has recommended that you undergo a Cystoscopy. But what does that actually mean?
The lower urinary tract allows your body to store and release urine.
It’s made up of two parts, the bladder and the urethra. Medical Malpractice
Your bladder is a hollow organ that expands as it fills with urine. Because it is made of muscular tissue, it can also contract and force urine to pass out of the body, through the urethra. Your urethra carries urine from the bladder all the way through the opening in the penis.
Medical Malpractice
Your doctor feels that it is necessary to examine the interior of the urethra and bladder, to try to determine the cause of a problem that you may be having.
Symptoms that may call for a routine Cystoscopy include:
* Persistent infection of the urinary tract
* Bladder stones
* Bleeding while urinating
* Irritation due to polyps, or
* Changes to the bladder caused by cancer.
Medical Malpractice
Cystoscopy is a simple procedure during which your doctor will insert a well-lubricated, instrument called a cystoscope through your urethra and into your bladder.
The cystoscope allows your doctor to visually inspect the interior of your bladder. It also allows your doctor to remove small pieces of tissue for later examination and even to crush small bladder stones, should any be present.
Medical Malpractice
Any tissue that your doctor removes from your bladder will be sent immediately to a laboratory for analysis. Your doctor will ask the laboratory to check for any sign of cancer or other abnormality.
So make sure that you ask your doctor to carefully explain the reasons behind this recommendation.
Medical Malpractice and Patient Education Company
Duration : 0:1:51
Americans pay more than one and a half trillion dollars for medical care each year and costs related to all manner of health care, such as prescription drugs, continue to skyrocket. While some of reasons behind this booming bill are understandable, Americans caught in a cash crunch might be surprised to find out some of the lesser-known causes of high health care costs.
The words health care might invoke images of doctors, nurses and hospitals, but the reality is that the medical field is a business and a ruthless one at that. Individual practitioners, researchers and participants may have wonderful intentions and a true desire to help people, but the structure of the American health care system ensures profit is the number one issue of importance.
Here are some facts that may help explain the high costs of American health care:
Pharmaceutical research and development companies spend roughly $20 billion each year on R&D, and about the same amount on advertising and self-promotional marketing activities.
There is sure to be a grin on your face once you get to read this article on health insurance. This is because you are sure to realize that all this matter is so obvious, you wonder how come you never got to know about it!
Additionally, drug companies have as many sales people as there are doctors in the United States. One of the responsibilities of this sales force is to convince doctors to attend pharmaceutical company-sponsored seminars where drugs are showcased.
According to some economists, the purchase of new technology is responsible for more than 50 percent of new health care spending over the last three years.
Much of the money Americans pay for health care finds its way into the rising profits on health care-related products and services such as the provision of medical insurance. Even higher costs have been forecasted for the future, especially for prescription drugs.
For many Americans who are unable to afford the health care they need, rising costs represent an ever-increasing barrier to medical services and products. The financial burden is also felt on the larger national scale with about 15 percent of gross domestic product going toward health care costs. That is equal to about one quarter of the annual federal budget.
Comparatively, Canada invests around 10 percent of its GDP on its public health care program. Unlike the United States, Canada’s health care program is universally available to all citizens and permanent residents without cost. Other countries, such as Germany, where there is a public/private delivery system model for health care, manage to serve their populations for even less while still having better longevity than Americans. This proves that the quality of health care does not rise proportionally with the amount of money spent to attain it.
While many Canadians supplement their universal health care with added insurance to cover the cost of medication and perks such as semi-private or private hospital rooms, health care insurance is much more essential in the United States. Unfortunately, costs have been rising dramatically, making health care insurance out of reach for many Americans. Currently, more than forty million Americans do not receive any kind of health care benefit.
Developing a vision on health insurance, we saw the need of providing some enlightenment in health insurance for others to learn more about health insurance.
For employers, providing health care insurance for employees is also becoming more expensive, with increases dramatically outpacing inflation rates. Some years, the difference is four or six fold. Even if premiums were to remain static, offering health care insurance to employees still costs several thousand dollars per worker. For smaller companies, or for those who employ a large number of people, these costs can be prohibitive.
Measures to reduce health care costs are always under consideration, though many are not popular choices. Suggestions that have been put forward by various sources have included:
Increased drug awareness and education. Millions could be saved if health care insurance covered only generic versions of drugs that have been proven just as effective as their more expensive brand name counterparts.
Terminate expensive treatment options will only add a short amount of time to a patient’s life, particularly if it will not be quality time (i.e. patient is in a coma).
Promote preventative care such as smart lifestyle choices, proper nutrition and exercise.
Examine to ways to control drug advertising to consumers. There is speculation that advertising has led to prescriptions of non-necessary drugs.
Limit malpractice liability so doctors and medical professionals do not feel pressured to cover themselves by ordering unnecessary tests to substantiate conditions they already know to be present.
To view our recommended sources for health insurance, or to read more articles about health insurance, visit: http://www.insurance-quote-puppy.com
Jimmy Chuang
http://www.articlesbase.com/health-articles/health-care-costs-is-rising-what-you-need-to-know-97944.html
I. Appellate Procedure
A. Appealability of Order
1. The Law Office of Douglas T. Harris, Esquire v. Philadelphia Waterfront Partners, LP, 2008 PA Super 222 (September 22, 2008)
Holding: An appellant that invokes the “colorable claim” standard for determining whether underlying Orders are collateral in nature, fails to satisfy this standard when it implicitly waived the claim of attorney-client privilege pursuant to Pa.R.A.P. 302(a) based upon counsel’s failure to invoke and/or assert the privilege before the trial court. Because the Orders subject to appeal were not collateral in nature, the Court did not have jurisdiction to consider the merits of the appeals.
II. Causes of Action
A. Generally
1. Schmidt v. Boardman Co., 2008 PA Super 203 (September 2, 2008)
Holding: Emphasizing that the tort of infliction of emotional distress is a distinct and separate cause of action in Pennsylvania, the Court ruled that a bystander who witnesses injury to a close relative can recover emotional distress damages when the injured person’s underlying cause of action is based on strict liability. The case also provides a detailed analysis of when a party is subject to liability under the product line exception to the general rule that a successor company does not incur the liability of the selling company.
B. Dog Bites
1. Underwood v. Wind, 2008 PA Super 158 (July 18, 2008)
Holding: In a dog bite case, jury instructions were proper that stated that: (1) the defendant was negligent per se because her dogs escaped from her property and were running free because the instructions advised jurors to consider whether the defendant’s explanation for the dogs’ escape was reasonable; and, (2) the dogs’ actions could be considered by the jury in determining the dogs’ dangerous propensities because the propensity to attack may be proven by a single incident inflicting severe injury or attack on a human being. The jury instructions constituted reversible error, however, when they failed to distinguish between the tenant “keeper of the dog” and the landlord, because the court included the phrase “or should have known” in addition to the correct standard, “knows of the presence of a dangerous animal,” when instructing the jury on the standard of care applicable to an out-of-possession landlord.
C. Medical Malpractice
1. Toney v. Chester County Hospital, 2008 PA Super 268 (November 12, 2008)
Holding: A cause of action for negligent infliction of emotional distress is restricted to four factual scenarios: (1) situations where the defendant had a contractual or fiduciary duty toward the plaintiff; (2) the plaintiff was subjected to a physical impact; (3) the plaintiff was in a zone of danger, thereby reasonably experiencing a fear of impending physical injury; or (4) the plaintiff observed a tortious injury to a close relative. Thus, a Complaint alleging that a mother was advised that her unborn child was normal and healthy, but was instead born with profound physical deformities, states a cause of action for negligent infliction of emotional distress. Conversely, the Court concluded that the facts did not support a claim for intentional infliction of emotional distress. The Court added that, as defined in Section 46 of the Restatement (Second) of Torts, a claim for intentional infliction of emotional distress has never been explicitly recognized as a cause of action by the Pennsylvania Supreme Court, although the Supreme Court has cited the section as setting forth the minimum elements necessary to sustain such a cause of action.
2. Sabo v. Worrall, 2008 PA Super 223 (September 18, 2008)
Holding: Counsel’s paralegal’s failure to submit a Certificate of Merit, when the statement was secured prior to the filing of the judgment of non pros, was an inadvertent mistake or oversight that constituted a reasonable explanation or legitimate excuse warranting relief from a judgment of non pros.
3. Glenn v. Mataloni, No. 264 C.D. 2008 (Pa.Cmwlth., June 4, 2008)
Holding: A trial court properly denied a motion to open a judgment of non pros when the petitioner (a pro se prisoner) failed to include in his pleading specific reasons why he needed extra time to obtain a Certificate of Merit in accordance with Pa.R.Civ.P. 1042.3.
4. Dental Care Associates, Inc. v. Keller Engineers, Inc., 2008 PA Super 143 (July 2, 2008)
Holding: An Order denying a Petition to Strike/Open Judgment of Non Pros was proper when the non pros was entered as the result of the plaintiff’s failure to timely file a Certificate of Merit within the time specified under Pa.R.Civ.P. 1042.3.
D. Negligence
1. Craig v. Amateur Softball Assoc. of America, 2008 PA Super 123 (June 4, 2008 )
Holding: The defendant softball association owed no duty of care to the plaintiff, a softball player who was not wearing a helmet and suffered a head injury while playing a slow-pitch softball game. Under these circumstance, the softball player assumed the risk of injury inherent to the sport.
E. Non-Profit Organizations
1. Colmar Volunteer Fire Co. v. Dept. of State, Bureau of Charitable Organizations, No. 2023 C.D. 2007 (Pa.Cmwlth., June 5, 2008)
Holding: A volunteer fire company was required to provide Bureau of Charitable Affairs with audited financial statements for the fiscal years in question, and was prohibited from soliciting charitable contributions until it properly registered with the Bureau. In this case, the volunteer fire company’s use of a professional fundraising entity for a direct mailing campaign disqualified it from the exemption for volunteer firefighter organizations under Section 6(a)(3)(ii) of the Solicitation of Funds for Charitable Purposes Act, 10 P.S. § 162.5(a) and required it to register with the Bureau of Charitable Organizations.
F. Political Subdivision Tort Claims Act
1.Stanton v. Lackawanna Energy, Ltd., 2008 PA Super 132 (June 23, 2008)
Holding: A bright yellow swing-arm gate erected by a utility on land left open without any fee and without any apparent business motive constituted “land” for purposes of the Recreational Use of Land and Water Act, 68 P.S. §§ 477-1 – 477-8, entitling the defendant to immunity under the Act.
G. Products Liability/Strict Liability
1. Commonwealth, Dept. of General Services v. U.S. Mineral Products Co., No. 75 MAP 2007 (Pa., September 26, 2008)
Holding: Because the incineration of building materials was not an intended use of the product, strict liability is not available for the harm caused by the unintended use.
III. Civil Procedure & Trial
A. Indemnification
1. Lane v. Commonwealth, Dept. of Transportation, 2008 PA Super 157 (July 17, 2008)
Holding: The defendant/general contractor was not entitled to indemnification from a defendant/ subcontractor that performed the work at the site of the injury because the jury found that the subcontractor was not negligent and, therefore, the general contractor was seeking indemnification for its own negligence. The decision affirmed that, if parties intend to include a provision in a contract that covers losses because of the indemnitee’s own negligence within the scope of their indemnity agreement, they must do so in clear and unequivocal language.
B. Concurrent Claims
1. State Farm Mutual Automobile Insurance Co. v. Ware’s Van Storage, 2008 PA Super 134 (June 24, 2008)
Holding: An insurer’s subrogated claim for property damage reimbursement need not be joined with the insured’s personal injury claim because the right to recover on each claim existed independently pursuant to Pa.R.Civ.P. 1020.
C. Judgments by Confession
1. RAIT Partnership L.P. v. E Pointe Properties I, Ltd., 2008 PA Super 225 (September 26, 2008)
Holding: A confession of judgment that includes an attorney’s collection commission of 15 percent was enforceable.
D. Releases
1. Haas v. Four Seasons Campground, Inc., 2008 PA Super 136 (June 26, 2008)
Holding: A defendant that operated a camp ground in New Jersey, was incorporated in New Jersey, operated an interactive website advertising the camp ground but did not allow seasonal contract purchases to be made online, mailed brochures and newsletters to Pennsylvania residents, purchased products from Pennsylvania vendors, made a significant number of direct sales to Pennsylvania residents, and published a toll-free number, had insufficient contacts with Pennsylvania to allow Pennsylvania courts to exercise jurisdiction over the defendant when the accident occurred in New Jersey on campgrounds occupied by the plaintiff under a contract signed in New Jersey.
2. Tayar v. Camelback Ski Corp., 2008 PA Super 204 (September 18, 2008)
Holding: Addressing the enforceability of releases relating to recreational activities by commercial entities, the Court concluded that the phrase “negligence or any other improper conduct,” when used in a release of liability, without other warnings, does not clearly convey the releasor’s intent to waive all claims against the facility for reckless or intentional conduct.
3. Ford Motor Co. v. Buseman, 2008 PA Super 146 (July 7, 2008)
Holding: Summary judgment is appropriate in a claim against a vehicle manufacturer and dealer when the plaintiff had previously executed a release discharging the driver of the vehicle involved in the accident and “all other persons, firms, or corporations.”
E. Standing
1. Information Systems Services, Inc. v. Platt, No. 109 MAP 2007 (Pa., August 19, 2008).
Holding: A shareholder may not maintain a cause of action in a Pennsylvania court on behalf of a foreign corporation that lacked good standing in its home state and failed to obtain a certificate of authority in Pennsylvania.
IV. Evidence
A. Character
1. Stumpf v. Nye, 2008 PA Super 122 (June 3, 2008)
Holding: Evidence of previous violence tending to show a character or a trait of character is not admissible under Pa.R.E. 404 and 405. In addition, evidence that the plaintiff pled guilty to disorderly conduct was properly excluded because guilty pleas to summary offenses and other minor matters are generally inadmissible in subsequent civil proceedings arising out of the same incident.
V. Insurance — Motor Vehicle
A. UM & UIM Coverage — Reduction of Limits & Stacking
1. Nationwide Insurance Co. v. Schneider, No. 11 MAP 2007 (Pa., November 19, 2008)
Holding 1. Section 1733 of the Motor Vehicle Financial Responsibility Law does not require primary underinsured motorist benefits to be exhausted before secondary coverage is implicated. Affirming the Superior Court, and stating that Section 1733 of the MVFRL “makes no mention of exhaustion of limits,” the Court noted that the claimant had followed the statutory order of priority by first pursing recovery from the insurer of the vehicle he occupied at the time of the accident, which is all that was required by Section 1733.
Holding 2: Examining consent to settle clauses in the context of UIM claims, the Court declined to determine whether a showing of prejudice is required of all insurers. Rather, the Court stated that it remains “the prevailing law of this Commonwealth under Lehman and its progeny unless and until a meritorious challenge to the rule is presented to this Court.”
B. UM & UIM Coverage — Regularly Used Non-Owned Vehicle Exclusion
1. Government Employees Insurance Company v. Ayers, 2008 PA Super 193 (August 18, 2008)
Holding: A household vehicle exception, which precluded the claimant from stacking the UIM coverage contained in his truck’s policy on top of the UIM coverage contained in his motorcycles’ policy, does not violate the Pennsylvania Motor Vehicle Financial Responsibility Law or public policy.
Daniel Siegel
http://www.articlesbase.com/law-articles/a-summary-of-recent-pennsylvania-civil-appellate-court-decisions-december-2008-699395.html
http://www.PreOp.com
Medical Malpractice and Patient Education Company Patient ED @ 617-379-1582 INFO
Your doctor has recommended that you undergo a Cystoscopy. But what exactly does that mean?
The lower urinary tract allows your body to store and release urine.
It’s made up of two parts, the bladder and the urethra.
Your bladder is a hollow organ that expands as it fills with urine. Because it is made of muscular tissue, it can also contract and force urine to pass out of the body, through the urethra. Your urethra carries urine from the bladder to the outside of your body.
Your doctor feels that it is necessary to examine the interior of the urethra and bladder, to try to determine the cause of a problem that you may be having.
Medical Malpractice
Symptoms that may call for a routine Cystoscopy include:
* Persistent infection of the urinary tract
* Bladder stones
* Bleeding while urinating
* Irritation due to polyps, or
* Changes to the bladder caused by cancer.
Medical Malpractice
Cystoscopy is a simple procedure during which your doctor will insert a well-lubricated, instrument called a cystoscope through your urethra and into your bladder.
The cystoscope allows your doctor to visually inspect the interior of your bladder. It also allows your doctor to remove small pieces of tissue for later examination and even to crush small bladder stones, should any be present.
Any tissue that your doctor removes from your bladder will be sent immediately to a laboratory for analysis. Your doctor will ask the laboratory to check for any sign of cancer or other abnormality.
Medical Malpractice and Patient Education Company
Duration : 0:1:51
As a client looking for a lawsuit advance on your pending lawsuit, the most important aspect is getting the approval decision from underwriting. Getting approved for funding is even more important than the fees or costs involved. Why? Because if you cannot get approved for funding, then the fees and costs simply do not matter. Your goal is to get approved. At that point you can then decide to accept the offer or walk away with no costs incurred.
The point of this article is to give you the client, pointers to help you get your lawsuit funding request approved. And I am writing this article with respect to getting personal injury cases approved for funding, mostly because they are the most common funding request we see.
The first step in getting you personal injury case approved for funding, is getting the underwriters the requested paperwork on your case. (By the way, personal injury cases include: auto accidents, motor vehicle accidents, pedestrian accidents, slip-n-fall cases, premises cases, dog bites, etc.)
Cases where the client is proactive in assisting the gathering of this requested paperwork, have a much higher probability of approval.
Remember, you are the client, this is your case. You have every right to request documents on your case file from your attorney. If you can help in getting us the requested documents, you will have a much higher chance for getting your request approved.
With that being said, here is the list of documents, underwriters would ideally like to review on personal injury cases:
1. Police Report, Accident Report, or Incident Report
2. Medical records relating to the accident and subsequent treatment
3. Insurance coverage on the defendant
4. Copy of the lawsuit (complaint) if in suit (i.e. if filed)
5. Pay-off information on any prior advances
6. Expert Reports, Analysis, Opinions, or Investigative Reports
7. Witness statements
8. Settlement Offers and Settlement Demands
Of course not all of the above requested documents are applicable to all case types.
For instance:
Item # 6, is only important for medical malpractice cases, product liability cases, and wrongful death cases.
Item # 7, is important for slip-n-fall and premises cases.
Why do we request these documents?
Let’s look at each requested document, one by one.
Item #1: Police reports are important because they provide an independent party that documents an accident actually took place. They often include a lot if valuable information, such as the parties involved, if anyone was issued a ticket or arrested, or was anyone under the influence of drugs or alcohol. Police reports will often indicate if the injured parties were taken to an ER and if an ambulance was used. Police reports often indicate which insurance companies are involved in an accident. And police reports will sometimes even state who was at fault, which can be important in determining the liability on a case. For all these reasons, police reports are important for us to review.
Item #2: Medical records are important because they help us determine the severity of your injuries. The severity of your injuries is directly proportional to the value of your lawsuit. The more severe your injuries, the more likely your case will settle for a larger dollar amount. And the more severe your injuries, the more likely we can approve you for a larger dollar amount. Personal injury cases where the victim had to have surgery are almost always worth more than cases where the injury did not require surgery. It’s must harder for the defendant’s attorney to attack an injury claim that required surgery. But it’s much easier for the defendant’s attorney to attack injuries that didn’t require surgery and to claim the plaintiff is simply “faking” the injury. We distinguish between injuries requiring surgery and injuries that do not. Injuries that do not require surgery are referred to as “soft-tissue” injuries. In general, the most we will approve for “soft-tissue” injuries is $3,000 and usually the advance is around $1,000. While on cases that require surgery, we often will advance, $5,000, $10,000, and up.
So in terms of medical records, we want to review the following:
Ambulance call report, if applicable
Initial ER records or initial treatment records
Operative (Surgery) reports
Physician (doctor) diagnosis reports
MRI, X-Ray, and any imaging reports, not films
Usually 25 to 40 pages of medical records are plenty. We do not need to see the doctor’s handwritten notes, billing statements, or therapy records. And we do not need to see physical therapy or chiropractor reports.
Item #3: Knowing the insurance policy coverage limits from the defendant is extremely important. (The defendant is the party you are suing. The defendant is usually the one responsible for causing the accident.) The limits on their insurance policy place a theoretical dollar limitation on the case. For example, if a defendant has a $100,000 policy limit, that may be the maximum value of the case. Often we will only advance 10% of an insurance policy coverage limit. If the defendant has no insurance, then as far as we are concerned, the case has no value and we will not approve it for funding. From a litigation stand point, your attorney can sue an insurance company for more than the policy limits, but from our perspective that is a more risky investment.
Item #4: Reviewing a copy of the filed lawsuit is important for several reasons. (The filed lawsuit in many states is called a “complaint”.) When a lawsuit gets filed, this lets us know your attorney is serious and means business. The date a lawsuit is filed is important because it tells us how far along the case is, which gives us an idea how long it will be until settlement. So basically, the filed complaint gives an idea of how serious your attorney is, how experienced they are, and the maturity of the case. All this information helps us to evaluate the case for funding.
Item #5: Prior advances on the case are only applicable if you have received a prior advance on the case. If this is the situation, then we will need the pay-off information on that prior advance. Typically when this happens, for us to advance more money to you the client, we will have to pay-off the existing advance. This allows our lien to have a higher priority by replacing the old lien’s position. The higher priority the lien on a case, the less risky for us, the investor. For example, let say you have a $2,000 prior advance on a case. And you want an additional $2,000. To pay off the prior advance may cost us $4,000 and then we will advance you $2,000. But the new lien on your case will be for $6,000, i.e. $4,000 to pay off the prior plus $2,000 to you the client. So whenever a client comes to us with an existing lien and prior advance on the case, it is always harder and more challenging to get the client approved for more money, because of the cost of removing the first lien.
Item #6: Expert reports, analysis, opinions, etc are only important in evaluating medical malpractice and product liability type cases. In these types of cases, it’s always important to have an “expert” to evaluate your medical records and state in their expert opinion what went wrong. The expert’s opinion often forms the basis for these types of lawsuits. In medical malpractice cases, experts are usually other doctors. And in product liability cases the experts may be doctors, chemists, physicists, engineers, etc.
Item #7: Witness statements are important in premises and slip-n-fall cases, especially, because it is common not to have a police report in these types of accidents. It is usually impossible to substantiate a claim that you fell, without a witness being present or an ambulance coming to get you. Ideally on premises and slip-n-fall cases, we like to see a police report, accident report, or incident report. However, if those do not exist, we often will want to see a witness statement to help substantiate your claim.
Item #8: Settlement Offers and Settlement Demands. Offers and demands are important because they provide insight into the potential value of a case and the level of negotiation activity transpiring. Demands and offers therefore help us to place a dollar value on case, which is critical if we are going to approve the case for funding. Without being able to predict a value on a case, we will not be able to approve the case.
We’ve now addressed all the main documents we request on personal injury cases. Hopefully this gives you a better understanding of what we are looking for and why.
The other area you can improve your chances for an approval is in your communications and relationship with your attorney. Ultimately to fund your case, we will need your attorney’s full cooperation. The cases which are most easily funded, are the ones when the attorney comes directly to us for funding. Why? Because we have the attorney’s full cooperation from the beginning, which allows for a smooth funding process.
Therefore, we recommend from the very beginning of this process, you communicate with your attorney. Communicate your financial needs and your interest in pursuing a lawsuit advance. Some attorney’s are not familiar with lawsuit advances and you may have to educate them about the process and expectations.
On the other hand, attorney’s who are aware of lawsuit funding, will counsel their clients to avoid it, largely because our money is expensive. In this situation you need to communicate to your attorney, you have done your own research, you are aware of the costs, but given your current financial needs, you need your attorney’s cooperation to pursue getting a lawsuit advance.
And lastly, you need to communicate what is expected of your attorney. Your attorney will need to do two things. 1) Provide us the requested documents, which we have already addressed. In reality, the attorney’s assistant or paralegal is the one who actually prepares the requested documents. And 2) once approved, your attorney will be required to sign on the contract, acknowledging the placement of a lien on the case. That’s really all that is required of them.
To summarize, as a client looking for funding your pending lawsuit, you can increase your chances for an approval by:
1. Being proactive in assisting with gathering the requested documents on your case and
2. Communicating your financial needs and your understanding of the costs involved with getting a lawsuit advance to your attorney. Ideally you want your attorney’s cooperation through out the funding process.
Please contact Mr. Eric A. Kelly, with www.Get-Lawsuit-Loan.com with any questions.
Eric A. Kelly
http://www.articlesbase.com/law-articles/lawsuit-advances-improve-your-chance-for-approval-134253.html
Personal Injury Law Firms experienced in negligence, malpractice and other types of personal injury actions have taken note of recent product liability actions involving the drug, Duragesic.
Duragesic® is the trade name for a pain-medication patch containing fentanyl, a potent opioid analgesic. Duragesic is a transdermal system-the medicine, fentanyl, is absorbed through the patient’s skin and into the bloodstream, providing pain relief for up to three days (72 hours) from a single patch application.
Duragesic is prescribed in five dosage strengths: 12, 25, 50, 75 and 100 mcg of fentanyl per hour. The 50, 75, and 100 ug/h doses are only prescribed for patients who are already on and tolerant to opioid therapy, and require continuous opioid administration. Moreover, the Duragesic label warns that 12 mcg/hour as an initiating dose has not been systematically evaluated; therefore, Duragesic should be used only in patients who are opioid-tolerant.
Fentanyl was found to be a good choice for transdermal application because of its physicochemical properties and high analgesic potency. However, Fentanyl is not without its serious adverse effects. Pharmacologically, fentanyl acts on the central nervous system causing analgesia, sedation, severe respiratory depression, muscle rigidity, seizures, coma, and hypotension. Adverse reactions include mood changes, euphoria, dysphoria, drowsiness, constricted pupils, nausea, and vomiting. The most serious side effect of fentanyl overdose is hypoventilation (respiratory depression), which can be fatal.
Development of Duragesic
Currently, only eleven transdermally administered drugs are on the market; seven of which were developed by ALZA. In 1981, ALZA responded to a plea from a White House-created committee of scientists and physicians to develop more potent analgesics with alternative delivery systems for critically ill and dying patients who were suffering from intractable pain. ALZA began work on a project to develop a fentanyl transdermal patch in late 1982.
In early 1983, ALZA representatives met with agents from the DEA to discuss the handling of fentanyl. Among other issues, the DEA expressed concern that the dosage be kept to an absolute minimum, because of the potential for overdose and abuse.
In 1991, ten years after ALZA proposed the development of a transdermal fentanyl patch, Duragesic was made available for sale in the United States. Originally, Duragesic was approved to treat acute, postoperative and moderate-to-severe pain. However, due to the slow onset of drug levels from the transdermal delivery and three day maintenance of drug levels with Duragesic, the system was more suited for treatment of chronic pain conditions, in particular, cancer patients. By 1998, the World Health Organization (WHO) recommended transdermal fentanyl for treatment of cancer pain in stable patients.
Since receiving FDA approval in 1990, ALZA and Janssen aggressively sought the expansion of Duragesic use beyond cancer patients. For example, transdermal fentanyl has been used to treat rheumatologic pain and severe back pain.
The FDA has also approved an expansion of Duragesic to treat pediatric patients.
Janssen’s most recent advertising campaign to expand the use of Duragesic was thwarted by the FDA. In the late 1990s, the company sent a document called Top Ten List to doctors urging physicians to switch their patients to Duragesic patches rather than use more traditional type pain relievers. Among the reasons listed is the phrase “It’s not just for end stage cancer any more!” However, in 2000, the Department of Health and Human Services wrote a letter to Janssen informing the company that its promotional pieces concerning the “Broadening of indication” for Duragesic were misleading and contained misrepresentations. The government agency responded, “The suggestion that Duragesic can be used for any type of pain management promotes Duragesic for a much broader use that is recommended by the PI, and thus, is misleading.”
Currently, Duragesic is the most widely prescribed transdermal medication. From 2002 to 2003, the total number of fentanyl patch prescriptions within the United States rose from 4.5 million to 5.4 million-a twenty percent increase. And the resulting sales figures for Duragesic have been enormous: total annual sales in the United States have reached one and a half billion ($1,500,000,000.00) dollars annually.
And in 2005, Duragesic sales generated two point one billion ($2,100,000,000.00) dollars worldwide.
Duragesic Defects:
Package Leak-Subsequent Recalls
The design/manufacturing defect most applicable to our case is an improper sealing of one edge of the Duragesic patch, resulting in millions of patches being recalled. During 2004, ALZA (through Janssen) initiated two large Class I recalls of Duragesic for this exact reason. The first was February 17, 2004 at which time Duragesic Control No. 0327192 (75 mcg/hr) was pulled from the market. The cited reason was a potential seal breach on one edge of the patch, which could result in fentanyl leaking from the patch. This recall included about 440,000 patches.
On April 5, 2004, Janssen expanded its recall of Duragesic to include 2.2 million patches (Control Numbers 0327192, 0327193, 0327294, 0327295, and 0330362). Again, the reason cited was the potential for a breach of the seal, which would result in fentanyl leakage. Janssen sent a “Dear Healthcare Professional” letter to inform of the expanded recall.
A leak of fentanyl from a Duragesic patch could cause patients to receive either too much or too little of the drug. If the fentanyl seeps out of the patch before its application to the skin, patients may receive too little medication to adequately treat their pain. In this situation, patients used to a specific does may experience withdrawal effects including sweating, sleeplessness, and abdominal discomfort.
Conversely, fentanyl leaks that occur while the patch is on the skin expose patients to a potentially life-threatening overdose of fentanyl. Duragesic is designed to deliver only a controlled amount of fentanyl into the patient’s skin. Patients wearing a defective patch that leaks fentanyl directly onto the skin will receive too much of the medication. If this occurs, patients could experience minor complications such as sedation, drowsiness, and nausea. Fentanyl overdose may result in more serious complications, including fatal hypoventilation (respiratory depression) or cardiac arrest.
When Jansen placed Duragesic on the market in 1991, reports of toxicity due to fentanyl overdosing were fairly common. In fact, one study in California of 112 deaths associated with fentanyl concluded that the general availability of the drug may be responsible for the high incidence of overdoses.
Furthermore, in a recent Duragesic lawsuit filed against Johnson & Johnson, Janssen, and ALZA, the plaintiffs alleged that “despite knowing of this defect, the defendants (Johnson & Johnson, Janssen, ALZA) took inadequate steps to advise physicians, hospitals, nursing homes and other health care professionals of the defect and the significant damages to users of the Duragesic patches.”
Heat-Induced Overdose
ALZA and Janssen’s knowledge of the overdosing potential caused by external heat dates back to 1986, when ALZA did lab testing on a nitroglycerin-delivering patch using the same co-polymer membrane used in Duragesic patches. ALZA subsequently did lab testing on Duragesic in 1988-that showed that a five degree Centigrade increase in temperature doubled Duragesic’s release rate. Dr. Curtis Wright, the FDA Medical Review Officer, was quite concerned in 1989 and again in 1990 that ALZA had not responded to his request for more information on the effects of external heat. After Duragesic hit the market in April of 1991, ALZA and Janssen learned of six reports from healthcare providers that external heat appeared to increase blood fentanyl levels in patients in the hospital setting and at home.
However, the first time Janssen or ALZA made an effort to warn of the effects of external heat came in a January 17, 1994 “Dear Doctor” letter with an attached proposed labeling revision. The labeling contained a new heat warning, which was buried at page 10 of the attachment, but no mention was made in the letter itself to alert physicians that external heat applied to the patch was potentially life-threatening.
GOVERNMENT REGULATION
In 2004, the FDA influenced Janssen and ALZA to issue two Class I Recalls of Duragesic, “due to improper sealing of one of their edges,” which could result in a life-threatening overdose of fentanyl. Yet, this was not the first time the FDA encountered problems with the companies’ handling of Duragesic. In fact, prior to the recalls in 2004, the FDA has required Duragesic labeling revisions 13 times.
And, as recently as July 2005, the FDA issued a Public Health Advisory concerning the use of Duragesic Patches in response to reports of deaths in patients using the patch.
Beginning in 1994, the FDA sent ALZA a “warning letter” identifying certain violations and deviations from Good Manufacturing Practices (GMP) regulations under the Food and Drug Act. This prompted the company to issue a letter to all health care professionals warning of Duragesic misuse.
In the late 1990s, the Department of Health and Human Services warned Janssen that its promotional materials to expand the use of Duragesic were in direct violation of the Federal Food, Drug, and Cosmetic Act and contained misrepresentations as to the safety and efficacy of the product. The agency determined that the promotional pieces were “false or misleading because they contain misrepresentations of safety information, broaden Duragesic’s indication, contain unsubstantiated claims, and lack fair balance.”
Following Janssen’s “voluntary” recall of Duragesic in 2004, the FDA issued a “Safety Alert” warning that the recall was “due to a potential leak in the product seal,” which could result in skin exposure to fentanyl. The warning adds that “skin exposure to any leaked medication from a DURAGESIC patch may cause nausea, sedation, drowsiness, or potentially life-threatening complications.” Govt Regulation 6. Janssen also wrote a letter to “Healthcare Professional[s]” informing them of the expanded recall in April 2004.
Furthermore, on September 2, 2004 the FDA issued Janssen another “warning letter.” This letter states that the latest Duragesic promotional pieces make “false or misleading claims about the abuse potential and other risks of the drug, including unsubstantiated effectiveness claims for Duragesic.” The letter states, “By suggesting that Duragesic has a lower potential for abuse compared to other opioid products, the file card could encourage the unsafe use of the drug, potentially resulting in serious or life-threatening hypoventilation.”
The Duragesic product label was again updated in June 2005 to add new safety information in several areas of labeling, and Janssen issued another “Dear Healthcare Professional” letter about these changes. Under a section entitled “Hypoventilation (Respiratory Depression),” the letter warns that “Serious or life-threatening hypoventilation may occur at any time during the use of DURAGESIC® especially during the initial 24-72 hours following initiation of therapy and following increases in dose.” Janssen also warns of a “potential for temperature-dependant increases in fentanyl released from the system resulting in possible overdose and death.” Therefore, the letter instructs all patients to avoid exposing Duragesic to “direct external heat sources, such as heating pads or electric blankets, heat lamps, saunas, hot tubs, and heated water beds, etc., while wearing the system.”
Finally, on July 15, 2005 the FDA issued a “Public Health Advisory” concerning the use of Duragesic Patches in response to reports of deaths in patients using the patch. The FDA stated it is conducting an investigation into the deaths related to fentanyl overdose in patients using Duragesic. According to the FDA, “Some patients and health care providers may not be fully aware of the dangers of this very strong narcotic painkiller. Therefore, FDA is issuing this public health advisory to alert patients and their caregivers and health care professionals by highlighting the following important safety information.”
MEDICAL LITERATURE
Fentanyl Overdose
Since Duragesic hit the marketplace in 1991, studies have shown continued high numbers of overdoses involving transdermal delivery of fentanyl. The most serious side effect is respiratory depression, which can be fatal. One study, published in 1991, examined 112 fentanyl-related deaths in the Eastern United States, mostly in California. Fentanyl deaths appeared to occur rapidly, “probably the result of acute respiratory depression.” While acknowledging the extreme potency of fentanyl, the author suggests that “the incidence of fentanyl-related deaths is probably determined by the general availability of the drug, rather than the relative potency of the analogs.”
In a study published in 2000, the Los Angeles County Department of the Coroner analyzed 25 cases involving fentanyl-related deaths. The author notes that the Los Angeles County Coroner’s Office evaluates nearly one case each month involving fentanyl patch-related death. Another study that same year identified 61 cases of transdermal drug overdoses in a Regional Poison Information System over a five-year period.
Head-Induced Overdose
Heat is expected to increase skin permeability, metabolism and elimination of fentanyl. If drug release from the system is much faster than permeation through the skin, the skin controls the transdermal absorption rate into the patient’s systemic circulation, rather than Duragesic’s special rate control membrane.
Several case reports have described the development of life-threatening overdose caused by a heating pad or rise in body temperature. Frolich et al. reported a narcotic overdose in a patient that was using a warming blanket to relieve pain following surgery. Medical Literature 17, see M.A. Frolich et al., Opioid Overdose in a Patient Using a Fentanyl Patch During Treatment with a Warming Blanket, 93 ANESTH. ANALG. 647-48 (2001) (unable to obtain hard copy). The increase in absorption may account for other heat-related toxicity associated with transdermal fentanyl. G. Newshan, Heat-Related Toxicity with the Fentanyl Transdermal Patch, 16 J. PAIN SYMPTOM MGMT. 277-78 (1998) (unable to obtain hard copy).
One study, in 2003, examined the effect of heat on transdermal fentanyl absorption. The authors concluded that increases in skin temperature may result in increased systemic absorption of fentanyl. Therefore, warming blankets and heating pads should not be either used in conjunction with, or placed over Duragesic patches.
However, as of 2003, the Duragesic label warned that serum fentanyl concentrations may “theoretically” increase by one third in patients with a body temperature of 40 degrees Celsius because of accelerated drug release and increased skin permeability. The current label warns of a “potential for temperature-dependent increases in fentanyl release from the system.”
Mathew A. Passen
http://www.articlesbase.com/personal-injury-articles/duragesic-product-liability-personal-injury-lawsuits-723732.html
Clearwater personal injury lawyers, Tragos and Sartes, have a press conference regarding the car accident regarding Nick Bollea and John Graziano in Clearwater, Florida. For more information, visit the firm’s website http://www.clearwaterpersonalinjurylawyers.com
Duration : 0:1:48