As a medical malpractice lawyer, one of the most common scenarios that I am asked about involves infection after a surgical procedure. There are a number of considerations that must be undertaken in order to determine whether a patient has a legitimate claim for medical malpractice or hospital negligence arising out of a postoperative infection.

First, it is important to understand that medical malpractice, also called medical negligence, requires proof of 3 different elements. The first element is negligence. Proof of negligence requires evidence that a physician, nurse or other hospital employee did something wrong or inappropriate to cause an infection. The second element is called “proximate cause.” Proximate cause means that the act of negligence led to some type of harm. 

Finally, damages must be proven. In the context of medical negligence, damages include loss of wages, medical bills incurred and pain-and-suffering. However, most medical malpractice lawyers will tell you that damages have to be sufficient in order in order to warrant the time, expense and risk associated with medical malpractice litigation.  In these cases, the defendants win at trial far more often than they lose. For this reason, they are willing to aggressively defend these claims. This leads to expensive litigation. A medical malpractice lawyer may advance $25,000 to $200,000 in case expenses in order to pursue a medical malpractice action from inception through trial. In addition, the lawyer will spend his or her valuable time, which may have a market equivalent of $30,000 to $75,000. Therefore, in order to pursue a medical malpractice case, the damages must clearly exceed several hundred thousand dollars in order to make the claim economically viable.

To prove that a health care provider negligently caused an infection, you would have to show that the doctor, nurse or other health care worker violated the hospital’s infection control measures or other sterile techniques. This is generally impossible. For example, how would you ever know that someone failed to wash their hands?  The mere occurrence of an infection is covered by the informed consent process. At the outset of a surgical procedure, you will be asked to sign an informed consent form which states that you have been informed of all risks of the procedure. Clearly, infection is a risk of every surgical procedure.  So, the mere fact that an infection occurred does not prove negligence.

In some very unique circumstances, you can prove that sterile techniques were not followed. For example, we pursued a medical malpractice claim arising out of a situation where a neurosurgeon dropped a portion of the skull that was being reimplanted into the patient’s head. The physician attempted to re-sterilize the bone flap, but the patient nonetheless developed a significant E. coli infection in her brain, leading to brain herniation, stroke and severe brain damage. We were able to show that the sterility techniques implemented by the neurosurgeon were inadequate, since OR personnel “broke scrub” to take the skull flap to another room to be sterilized. In other cases, a violation of infection control measures can be established when there is an outbreak. We have seen cases where colonoscopy scopes were not properly sterilized after use leading to infections. Similarly, arthroscopes used in arthroscopic knee surgeries were not cleaned in one instance leading to an outbreak of serious knee infections. But these cases are rare.

In some cases, prophylactic measures are required to prevent infection before it occurs. In a number of “dirty” surgeries, where the likelihood of postoperative infection is high, such as gynecological surgeries, the standard of care requires the surgeon to order the administration of prophylactic antibiotics prior to the operation. There are a number of published standards of care requiring the use of prophylactic antibiotics for a variety of different operations. As the lawyers at Mishkind Law can explain, Not only do the standards require prophylaxis, but they also dictate the timing of antibiotic administration. If the antibiotic is given too far in advance, it will not be effective in preventing infection. Failure to follow these guidelines constitutes medical negligence.

Underinsured motorist coverage is the important part of your insurance policy that covers property and bodily damage caused by a negligent driver with inadequate insurance coverage. Simply put when a party causes an accident but does not have sufficient insurance to compensate you, your own underinsured coverage can take care of the difference.

The Insurance Information Institute reports that over 13% of motorists have no adequate insurance coverage.  A greater amount have low limits that may not compensate you adequately as an injured party. Therefore, underinsured motorist coverage is essential to for accident victims to receive basic compensation for their injury in the event that the at-fault driver does not have adequate coverage.

Why is underinsured motorist coverage necessary?

Individuals may take a lower coverage limits for a number of reasons including the financial costs, or a lack of understanding of appropriate amounts of insurance coverage. While most drivers follow the law and have basic insurance coverage, the minimum coverage requirements in most states are extremely low and are only adequate to cover minor accidents. Personal injury lawyers, like a person injury attorney Milwaukee trusts, have the experience to understand insurance policy and how an accident may be covered by multiple policies of those involved.

What underinsured motorist coverage do I need?

As a personal injury lawyer advises, your coverage for underinsured motorist should be adequate to cover both bodily injury and property damages in the event low insurance coverage from an offending party cannot provide proper restitution.

When to make an underinsured motorist coverage claim

As soon as you are in an accident, depending on the severity, you will want to speak with your insurance carrier and put them on notice that there may be a claim.  When an accident happens, you will exchange insurance information with the other driver and may need to call the police for a proper investigation. You may not know the extent of damage caused immediately, and also the amount of liability the other driver’s insurance will cover. The ultimate costs will be determined by the degree of your injury, missed work, and any property damage to your vehicle.  A personal injury lawyer can help you understand your policy limits and type of action to take next.

What is the total amount of coverage I can have?

Most insurance companies do not allow you to carry a higher underinsured motorist coverage than your personal liability coverage. If you need more information about the amount of coverage you can take, you can talk to a qualified insurance agent. They are in better position to give you relevant information regarding underinsured motorist coverage and any other vital information particular to your situation.

Thanks to our friends and co-contributors from Hickey & Turim, S.C. for their insight into underinsured motorist coverage.

It’s tax season again, and many of us have visions of tropical vacations running through our heads.  While luxury is a valid way to spend your tax refund, there are more financially responsible actions you can take, especially if you are facing debt.  As a Clearwater debt collection attorney, we know how hard it is to get out of debt collection once the process has begun.  Here are some smart ways to spend your tax refund this year.

Pre-Pay Some Priority Bills

Maybe you’re not in debt, but you’re basically just covering expenses each month with little to spare.  Wouldn’t it be nice to take a little break from barely meeting your payment deadlines?  Apply your tax return to your most crucial bill (mortgage, rent, etc.) and enjoy a brief period of financial freedom.  You can use the time to keep paying ahead so you have a security net if you get behind, or you can take the extra money and get started on your savings account.  Just be sure that the company allows you to pre-pay.  Some companies, like loan companies or many mortgage companies, will apply the extra payment to the total, but that doesn’t decrease your immediate commitment.

Avoid Future Problems

There is a saying, “It’s expensive to be poor”, and it refers to the fact that when you are just getting by, you can’t afford preventative measures.  When you get a little extra boost in your finances from your tax return, use it to prevent future expenses.  Get your car checked out and see if there are any issues that need to be addressed, especially if they may escalate over time.  Have someone come and check your home for leaks or small issues that could end up getting worse.  This is a great time to be proactive and save money in the long run.

Pay Off Debts

If you’re in debt, pay it off as soon as you can.  Try not to use your tax return for other items if you owe money.  Instead, use it to pay off your smaller debts and clear them once and for all from your record.

Start Planning for Retirement

This is a great time to start a retirement fund!  An IRA or other retirement fund will yield high returns, and a contribution like your tax refund can really get the ball rolling.

There are so many ways you can plan ahead with your tax refund!  What do you plan to do with your return?

Thanks to our friends and contributors from the Law Office of Michael A. Ziegler, P.L. for their insight into smart ways to spend your tax refund.

Probate is a legal proceeding used to settle the estate of a person who has died.  The judge appoints an executor or executrix who becomes responsible for gathering the assets of the decedent, paying off the creditors and then distributing the assets to the beneficiaries.  Any interested party such as beneficiaries or creditors can open probate.  There are three reasons why every family would want to avoid the probate process: (1) it is expensive; (2) it is time consuming; and (3) it is public in nature.

While the fees for probate will vary from state to state, it is reasonable to use an estimated fee equal to 5% of the fair market value of the probate assets.  Probate assets usually include all assets you own except life insurance, annuities and retirement plans (although sometimes these assets do become probate assets).  At a fee of 5%, the probate fees can get very high.  Probate normally takes at least 9 months, although it does vary from state to state.  Finally, all probate procedures leave a public record open to financial predators who may be looking for families to trouble.

How to Avoid Probate

To understand how to avoid probate, we need to understand what triggers the probate.  Normally, a probate is opened if a person dies with real estate in their name or a certain minimum amount of other assets in their name (for example, if you have over $25,000 in bank accounts or brokerage accounts).  Therefore, if you want to avoid probate, you simply need to gift your real estate and other assets out of your name before you die.  The problem is that you will lose control if you gift the assets to another person.
Living Trusts Make Avoiding Probate Safe and Easy

A probate attorney Las Vegas trusts can form a Living Trust that gives you 100% control over all assets it may own.  So the simple trick is to transfer all the assets you own to the Living Trust.  That will leave you with no assets in your name for probate purposes.  You will have the same amount of control over the trust assets as you did when the assets were in your name.  There are no income tax consequences for making the transfers, and most banks will permit such transfers if there is a mortgage on the real estate.

Other Solutions Only Delay the Probate

Some folks will suggest that to avoid probate you merely need to have a co-owner for all your assets.  However, that will only delay the probate until the co-owner dies; but eventually, there will still be a probate.  Meanwhile, you have over-exposed the assets to the financial troubles of your co-owner such as lawsuits, bankruptcy and divorce.

The probate process creates extraordinary fees, time delays and exposure for your family.  Living Trusts are a cost effective way to avoid probate while at the same time keep you in total control of your assets.

Thanks to our friends and contributors from The Law Offices of Gary L. Fales & Associates for their insight into the probate process.

When we were younger our parents attempted to shield and protect us from situations that could harm us. They often hovered over us until we completed tasks or reminded us over and over again until it was accomplished. As we get older and our parents, aunts, uncles or loved-ones age; the roles are now reversed within society. The difference is that we are unable to provide the same approach to our parents when we are concerned for their health and well-being.

It is our personal job to ensure their safety and we now have become their guardians, literally. As a parent, you never want to be a burden or admit that you need help or assistance especially to your own children. Many people will contact a third party facility for assistance than burden their children with their worries or concerns. I bet you are wondering how can we break this cycle? How can I effectively communicate with my parents that I am their biggest advocate, supporter and I want to be their go to person?

Being a Senior Paralegal for a skilled elder law attorney Arlington TX trusts, I have the pleasure of getting to sit in with clients and have first hand knowledge of having these difficult conversations with our clients. I get to assist with strategizing finances, planning for retirement, Medicaid, VA Benefits, Wills, Trusts and Life Planning Document Preparation, Probate and Estates, Guardianships and Social Security Disability.

I also get to be an advocate or voice for our clients when it comes to Elder Law, which is another section of Law that our Firm provides. Elder Law consists of many different varieties of things such as demands for payment of loans, disputing Power of Attorneys or Medical Power of Attorneys due to mental capacity issues.

In dealing with these types of law, I have had numerous years of experience in discussing the most difficult of topics. I have come to find that the best remedy with starting these types of conversations is to simply be honest, open and direct. A listening ear and closed mouth at first often allows you to discover the most important first steps…. Being heard.  Taking the time to sit down with your loved ones and truly listen to their wishes is the biggest part in gaining trust and understanding of the situation. At some point, when dealing with Dementia or Alzheimer’s of course you are not able to do as they so may direct you; however hopefully by the time they are diagnosed you’ve already come up with a strategy as to financial planning and healthcare needs.

All of these areas of law have one thing in common; no one wants to plan for the inevitable. No one likes to discuss death or growing old. When is the last time you sat down for dinner with the family and discussed burial plots or your last wishes? I believe the consensus would be unanimously across the board with a huge slim to none chance. Even in the line of work that I am in, I have brought up some of the most awkward topics of conversation at the most inopportune times with family members and the expressions or reactions still amaze me. For example, I will be driving down the road and turn to my spouse and state “I want lilies and white roses at my funeral!” The usual response is, “What is wrong with you, don’t say that?” I have rambled off so many different ideas’ that of course no one is going to remember them all, so I have literally compiled a list of all my wishes down to the music, poems, colors of my attire, photos and even my fragrance I wish to wear. Does this make me crazy? 

We grow up planning for graduations, weddings, birthdays, vacation trips, purchasing our homes and some even have the whole Retirement thing accomplished. Yet as a society we do not want to discuss these difficult topics let alone sit down and plan for them. I have always had a motto of you can either be prepared for your future or your future will consume you. In dealing with Wills, Trusts and life Planning Documents I get to gather information to pass down to their loved ones once they are gone. I get to have that difficult talk when a clients son or daughter contact us to inform us of their passing and need direction as to where to go from here. When dealing with Probate and Estates, they often come back to our Firm to Probate the Will or Administer their Trusts and in doing so I get the pleasure of letting them know what we discussed at their meetings. I personally encourage our clients to write a little note to their loved ones, or tell me a joke that they would want me to share with them. A phrase that every member of the family knows them infamous for making or a memory that they want me to share with their family.

Often the saddest part of sharing these things is that a lot of the time in discussing their loved ones lives, I have had numerous clients tell me that they did not know these things about their loved ones lives. A common response is that, “They simply would not open up to me about these topics”. All you simply have to do is to stop and take the time to listen to them. Do not be afraid to ask questions or even show interest in planning for their futures. With all the technology nowadays and society being so fast paced we often forget to stop and have an actual conversation.

Thanks to our friends and contributors from Brandy Austin Law Firm for their insight into nursing home malpractice litigation.

Sometimes, for a wide array of reasons, it may be necessary to appeal a judgment.  Once the decision has been made to appeal a final judgment, you should mark your calendar for several deadlines.  Miss any one of these deadlines, and it may be fatal to your appeal, so it’s important to ensure compliance with every deadline.

Entry of Final Judgment – Filing a Notice of Appeal: 

Once a judgment has been rendered, you must make sure to await entry of the judgment into the record.  Once final judgment is entered, you have 30 days in which to file a Notice of Appeal.  Second, besides “entry,” the other operative word here in “final.”  In Arkansas for example, while it is possible to file an interlocutory appeal, the topic of “finality” is reserved for a specific blog for next week.  When filing your Notice of Appeal, ensure that it contains the requisite information included in Rule 3(e) of the Arkansas Rules of Appellate Procedure.

Order the Transcript:

Simultaneous with preparing the Notice of Appeal for filing, you must contact the court reporter to order the entire transcript from the hearing or trial (if your appeal is more targeted, you may order only the relevant parts of the transcript).  You must also make arrangements with the court reporter to provide payment for the transcription services you are ordering.

Call the Circuit Clerk to notify them of the appeal:

Simultaneous with preparing the Notice of Appeal for filing and contacting the court reporter, you must also contact the circuit clerk (if your case is being appealed from circuit court – if your case is being appealed from district court, county court, or another inferior court in the state, contact me for details on appealing adverse rulings from those courts).  The clerk will then prepare the official record, which will be lodged with the appellate court.  This must be done within 90 days of the filing of the Notice of Appeal.  Otherwise, you must request and obtain an extension.

Appeal — Where taken

Once you have complied with the three steps discussed above, you must also decide whether to appeal the case to the Arkansas Court of Appeals or to the Arkansas Supreme Court.  Depending upon the type of case, that decision will probably already be made for you.  However, if you have a case that could be a case of “first impression” for the court, it is possible to appeal directly to the Arkansas Supreme Court.  Consult the Arkansas Rules of Appellate Procedure for specifics.

For these reasons, it is imperative to hire a veteran litigator and experienced trial lawyer who has been involved in wrongful death cases for years.

Each year, many motor vehicle accidents are caused by tire blowouts. Drivers, passengers and even pedestrians can be injured in these accidents, just as a tire blowout can cause property damage.

If you suffered property damage or injury because of a tire blowout accident, an experienced Phoenix auto accident lawyer can help you gain compensation for your damages.

Tire blowout accidents are often the responsibility of the driver whose vehicle suffered tire damage. Sometimes the liability falls on others’ shoulders, also.

When Tire Blowout Accidents Are the Driver’s Responsibility

Drivers are required to drive according to their state’s laws and the circumstances of the environment in which they are driving. Drivers have a duty to make reasonable decisions behind the wheel.

If a driver is following laws and their vehicle suffers a blowout unexpectedly due to unavoidable roadway debris, he or she will likely not be held liable for an accident that follows their blowout. This is because the cause of the accident was the unavoidable debris, not the driver’s behavior.

However, if a driver experiences a flat tire and uses poor decision to handle the flat, he or she will possibly be at least partially responsible for an accident that results from that reaction. For example, swerving and slamming on brakes when a flat occurs will likely result in an accident. To avoid causing an accident, the driver should react to a flat by slowing the vehicle’s speed, signaling and pulling off the roadway.

Beyond a driver’s duty to regulate how they manage their vehicle while behind the wheel, there are other duties of driving. These two duties can also affect liability in a car accident after a blowout.

Duty to Inspect the Vehicle

When providing a citizen with driving privileges, the state is also entrusting that citizen with the duty to keep their vehicle in safe operating condition.

It is not necessary for a driver to know how to fix their car like a mechanic would. A driver should inspect their car for obvious hazards before getting behind the wheel, however.

If tires are not well maintained and become thread-bare or have an obvious defect, repair of these issues is the responsibility of the driver. He or she should not operate the vehicle until the problem is fixed. If a blowout causes an accident and the investigation determines the blowout was the result of an over-worn tire, the driver cannot claim they were unaware of the tire’s problem. This is because every driver has a duty to know if their tires are safe for the road.

If your accident involves a blowout caused by a defect in a tire, the driver’s mechanic or automotive specialist could also be found liable for the accident. Such would be the case if the vehicle was inspected by a mechanic who neglected to alert the car’s owner to the defect. In this situation, it would be up to a jury to decide whether the mechanic or the driver should have discovered the problem and fixed it before operating the vehicle.

Duty to Not Drive with Defective Equipment

When a driver is aware that their tire has a dangerous defect, they are obligated by law to not drive that car until it has been repaired. This duty has the same effect on a driver as the duty to inspect. If a tire blowout causes an accident, a driver who had a defective tire and operated the car without fixing it will be found liable.

When Tire Blowouts are Not the Driver’s Fault

There are instances where the driver is not at fault for a tire blowout that causes an accident. As previously mentioned in the defect situation, if a mechanic fails to do his duty during work on the vehicle or an inspection, he may be liable for the tire blowout accident.

Along the same vein, an improperly installed tire or installation of an ill-fitting wheel resulting in a blowout accident can be determined the fault of the mechanic or tire installer.

Manufacturers and retailers can also be held liable for these types of accidents. If a tire is defective as a result manufacturing or design, the manufacturer may be held responsible. Likewise, if a retailer damages a tire on the showroom floor and sells it anyway, that retailer can be held accountable for a tire blowout accident.

An Experienced Attorney Helps Victims of Car Accidents Due to Tire Blowout

When a tire blowout causes a car accident, the case of liability and compensation for damages can become complicated. A highly skilled car accident attorney will help you prove your case through expert testimony about the tire’s condition, possible prevention of the accident, whether the blowout was caused by a defect and who was responsible for such a defect.

Thanks to our friends and co-contributors at CantorCrane for their added insight into tire blowout safety.