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Sexually Transmitted Diseases and Personal Injury: Can You Sue an Ex for an STD?

Sat, 28 Jun 2008 18:14:28 GMT

A governing legal principle in our society is that we have a duty to avoid causing an unreasonable risk of harm to others. In plain English this means “don’t do something which you know will hurt someone.” In most states this duty extends to sexual partners. A partner who knows or should have known that they are infected with a sexually transmitted disease is increasingly being held liable for transmitting the disease to an unknowing partner. This includes herpes, AIDS, gonorrhea, syphilis, genital warts and crabs.

Prevalence of STDs/HIV

In the latest figures from the federal Centers for Disease Control, over 1.1 million people in the US are HIV positive and over 19 million people in the US per year are infected with a sexually transmitted disease (STD). Because HIV and STDs are mainly spread through sexual activity, new infections are generally preventable through personal choices. Because of this, many states have passed laws requiring persons who are HIV positive or have an STD to either refrain from sex or to inform their partners prior to sexual activity.

Intentional Transmission

Some states require the plaintiff prove that the defendant intentionally exposed them to the disease in order for liability to attach. In these states the plaintiff usually must show that the defendant knew or should have known they were positive and did not inform the plaintiff before having sex. Proving that the defendant knew they had an STD may be shown by a positive test, medical history regarding symptoms, or a current outbreak of symptoms. Usage of a condom may be a determining factor in these cases regarding whether someone should be held liable.

Negligent Transmission

Some states only require a showing that the defendant was negligent in transmitting an STD, whether they intentionally exposed their partner to it or not. Rather, the plaintiff may only have to prove that the defendant is HIV positive or has an STD and engaged in activities that enhanced the likelihood they would transmit the disease, such as promiscuous sex or drug use.

Consensual Sex... Bar Liability?

Some have argued that by engaging in consensual sex, the plaintiff may have assumed the risk of contracting an STD, or should otherwise be barred from suing their partner for acquiring the STD. However, some courts have also held that sex can not be deemed consensual sex when one person has an STD and doesn't inform their partner of their status because the plaintiff would never have had sexual contact with the defendant if the plaintiff had known of the defendant’s condition.

Personal Injury

The court cases regarding liability for transmitting an STD are not limited to sexual activity. In a case involving a wrestler who had herpes sores on his skin the New York Court of Appeals ruled that persons infected with herpes must avoid skin to skin contact with anyone, not just sexual partners, when they have an outbreak.

Though most states allow a person who contracted an STD to bring a court action against the responsible party, there is no nationwide rule about sexually transmitted diseases. Many states have criminal statutes specifically covering the negligent or intentional transmission of HIV, but only a few states have statutes specifically listing STDs. Thus, a lawsuit brought because of herpes, chlamydia, syphilis or gonorrhea is typically brought as a personal injury action.

Damages are available in most states but these cases may be hard to prove. A case involving a sexually transmitted disease is not as simplified as a car accident or if A punches B. In those circumstances the parties know when and where the injury occurred and who caused it. In sexually transmitted disease cases, symptoms may not show up immediately, sometimes even years, and if there have been multiple sexual partners, for either party, proving who was responsible can be difficult.

For more information on sexually transmitted diseases, contact a personal injury attorney today

When to Hire a Personal Injury Attorney

Thu, 06 Nov 2008 23:54:26 GMT

When you suffer an injury in an accident, there are so many things to consider and so many details that need your attention. It is easy for a person to quickly become overwhelmed. Of course, the most immediate and the most important concern is to get medical treatment for your injury. Sometimes an injury can be treated quickly. However, more serious injuries may need ongoing treatment and may leave the injured person in a lot of pain. Medical bills can quickly pile up as can loss of wages. Additionally, the accident which caused the personal injury may have also resulted in expensive property damage.

Many people are insured against some, or all, of the above expenses. For example, a person may carry health insurance to cover the medical bills, disability insurance to cover the lost wages and car insurance to cover damage to an automobile. Therefore, some people try to manage these insurance claims on their own and do not hire an attorney until litigation becomes necessary.

The Benefits to Hiring a Personal Injury Attorney Early

There are many benefits to hiring an attorney as soon after your injury occurs as possible. Insurance companies, both yours and the other person’s, are likely to start asking questions immediately. Depending on the nature of the accident, the police may also ask questions. An attorney will often handle those questions for you. This will not only take the pressure off of you and allow you to focus on your recovery and other responsibilities but, it will also ensure that you do not say something to the insurance company or police that could later hurt your chances of recovery or hamper your defense.

Some insurance companies also try to pressure people into settlements as soon as they get the claim. If attorneys are not yet involved in the case then insurance companies can often get the parties to agree to a lesser settlement and they can avoid costly litigation.

If anyone involved in the case was seriously injured or if there is a dispute about who was at fault for the accident then it is important to hire an attorney as soon as possible to safeguard your interests.

When to Wait

You might wish to consult an attorney early for the reasons stated above. However, you might hesitate before hiring the attorney. A reputable personal injury attorney will be honest with you during your initial consultation about whether this is case for which you need an attorney. The attorney might advise you to take an offered settlement or to handle the initial stages of the negotiations yourself. If you are comfortable doing so and the case does not involve a significant injury or monetary loss then it could be to your advantage to avoid the expense of an attorney.

The law does not require you to have an attorney handle your personal injury case. Whether the accident just happened or you are on the eve of trial, the decision about whether to retain counsel is up you. However, if fault is disputed or there were serious injuries or monetary losses then it is usually beneficial to seek the advice of a qualified attorney as soon after the accident as possible.

How do I bring a personal injury action against the federal government, or one of its agencies or employees?

Mon, 10 Nov 2008 13:56:59 GMT

What if you get in a car accident with a U.S. Marshal, or slip and fall on the White House steps? Your only way to get compensated for these injuries is to file a lawsuit against the federal government, which is a bit trickier that filing a lawsuit against your neighbor or a local business.

Typically, you can’t sue the federal government unless it gives you permission to do so. The circumstances under which you can sue the federal government are governed by the Federal Tort Claims Act (“FTCA”). So, before filing any lawsuit against the federal government, you’ll first have to find out whether the FTCA allows you to file the lawsuit. If not, then you probably cannot sue the federal government for your damages.

Under the FTCA, the federal government can be liable for damages caused by a federal employee who acts – or fails to act – negligently or wrongfully. However, the FTCA contains several other limitations on claims, such as strict timelines for bringing claims and various administrative filing requirements. Additionally, the FTCA only permits a lawsuit when the harm caused to you was caused by a federal employee, not an independent contractor, who was acting within the scope of his or her employment, resulting in damages that could be remedied under the law of the state in which they occurred.

If you determine that you can pursue a lawsuit under the FTCA requirements, your next step is to strictly follow the procedures set forth in the FTCA for filing such a claim. Generally, you must file your claim with the federal government agency that employs the person who caused your damages within two years of the date that the incident occurred. There is a standard federal government form, or Standard Form 95 (“SF 95”), that you can fill out in order to present your claim to the agency. While you don’t have to use SF 95, using it will ensure that you include all of the information required to properly make your claim.

Once you have submitted your claim to the agency, it has six months to decide whether to deny your claim or admit your claim. If the agency admits your claim and agrees to pay you an amount of damages that is acceptable to you, you won’t have to file a lawsuit. If the agency denies your claim, however, or refuses to pay the amount of damages that you have claimed, you will have to file a lawsuit within six months of the date on which the agency decision is mailed to you.

Lawsuits against the federal government are filed in the U.S. District Court in the location where you live, or where the incident occurred. You can only ask for the same amount of damages that you asked for in the claim that you filed with the agency, and you cannot ask for punitive damages under the FTCA.

As is the case with any sort of personal injury claim, if you are claiming that the federal government caused you substantial damages, it is always smart to consult an attorney. Particularly since the FTCA is a complex law with many requirements and deadlines, an attorney can be helpful in navigating through such a lawsuit.

What are Good Samaritan laws?

Wed, 22 Apr 2009 02:21:13 GMT

Good Samaritan laws, which are also known as Volunteer Protection laws, are state laws that are enacted to protect healthcare providers and other rescue personnel from being sued as a result of providing help to a victim during an emergency situation. As long as you use reasonable care in assisting a person during an emergency, based on the resources that you have available to you at the time, you cannot be sued for any injuries that the person sustains during the incident.

While Good Samaritan laws vary from state to state, these laws typically apply when you take purely voluntary, good-faith action to help another person at the scene of an emergency, and the person does not object to your help. If you provide help to another person under a Good Samaritan law, keep in mind that you must exercise the same standard of care and/or treatment that you normally help to in your profession. In other words, if you’re a trained medical professional, then you must act according to medical professional standards. However, if you are not trained in a medical professional, then your duty may be only to call for help or other forms of help, but not to render medical care or first aid. So long as you act reasonably in light of the circumstance, and in keeping with professional standards, you probably will not be liable in a jurisdiction that has enacted a Good Samaritan law.

The mere existence of a Good Samaritan law, however, does not mean that you cannot be sued. If you act negligently or recklessly in light of applicable professional standards, you might still be liable for damages, despite a Good Samaritan law. Plus, Good Samaritan laws are state laws, not federal laws. Therefore, a state Good Samaritan law will not protect you from liability in a federal civil rights lawsuit. Additionally, some versions of Good Samaritan laws may hold you liable if you do NOT act to assist another person during an emergency. In any case, you should be cautious about the type of assistance that you provide in an emergency situation, and be sure to act – or not act - in a manner that will not result in your liability under your state’s Good Samaritan law.

Good Samaritan laws typically don’t extend to people who are giving medical care or treatment in the course of their employment. So, if you’re a nurse who works in a medical center, any action you take in an emergency would not be covered by a Good Samaritan law. Likewise, the class of people that a state’s Good Samaritan law protects differs. While most state Good Samaritan laws protect all people who give assistance in an emergency situation, some state Good Samaritan laws only protect certain classes of people, such as trained rescue personnel. Therefore, it is important to educate yourself as to whether your state’s Good Samaritan law would apply to you if you were faced with an emergency situation.

What role does the insurance company play in a personal injury lawsuit?

Mon, 10 Nov 2008 13:58:17 GMT

When you are involved in an accident that results in injury to you, whether it be from a car accident or a slip and fall on another person’s property, your first step in making a claim for your injuries always starts with an insurance company. It is not uncommon for an insurance company to contact you rather quickly following an accident in which you were involved. If you don’t hear from the insurance company right away, you should make contact with the person who caused your injuries, and/or the appropriate insurance company in order to let them know that you are making a claim for your injuries.

An insurance company is initially represented by a claims adjuster, or a person who is responsible for processing and handling your claim. You must always remember, however, that the claims adjustor is not representing your interests, but is representing the insurance company. In other words, the goal of the claims adjustor is keep costs as low as possible for the insurance company, whereas your goal is to get the best settlement possible for your claim.

You’ll also want to remember that you should not give detailed information to the claims adjustor about the accident or your injuries. If you give the claims adjustor these details, you might adversely affect your ability to get resolution of a claim. For instance, if you tell the claims adjustor a detail that puts you at fault for the accident, the insurance company then may not be willing to settle your claim at all.

With that said, there is no reason not to speak with a claims adjustor, particularly if you have suffered only minor injuries and/or damages. The claims adjustor typically will want copies of any medical bills related to your injuries, as well as estimates to repair any damages, such as damages to your vehicle in the case of a car accident.

At some point, the claims adjustor may offer you a settlement. Once you accept a settlement offer in writing, you must also sign a legal document that releases the person who caused your injuries, as well as his or her insurance company, from all further claims related to your accident. This means that once you have settled your claim, you can’t go back later and claim more medical expenses or damages arising from the accident. Therefore, if you think you will have future medical expenses as a result of the accident, then you should probably wait before settling your claim.

You should carefully consider any settlement offer, taking into account all injuries that you have suffered, including medical bills, lost wages, property damage, and the pain that has resulted from your accident. Every insurance company has some sort of basic formula that it uses to place a value on each claim. Also, keep in mind that if your own health insurance company paid all or part of your medical bills, then it may require you to reimburse them for those costs out of any settlement that you receive. The bottom line is that you need to think of your claim in terms of the total amount of damages that you have suffered, and come up with some sort of figure that you can live with. Hopefully, your figure will be close enough to the settlement offer that you will be able to resolve your claim without filing a lawsuit.

Hiring the Right Personal Injury Attorney

Fri, 06 Jun 2008 00:22:31 GMT

Hiring the right personal injury attorney to represent you is critical and can literally make or break your case. When meeting with an attorney for the first time, there are a lot of questions that need to be asked to decipher if an attorney is a viable fit for your case, and for you personally.

The following are the top ten questions that should be discussed in your first meeting with a personal injury lawyer:

1. How many years have you practiced law, specifically personal injury?

Your prospective personal injury attorney should not be a novice, but a trained, seasoned professional. Younger attorneys, although they may be used to perform some of the work on your case, should not be given full case-management authority until they have a little more experience under their belt.

2. Have you taken cases like mine to trial or settlement, and if so, how many?

An experienced personal injury attorney will have taken several cases like yours to trial and/or settlement. This answer is an indicator of the prospective attorney’s skill and success rate.

3. How much of your practice focuses on personal injury cases like mine?

A personal injury attorney should focus a majority of his or her time on the subject matter involved in your case. While an attorney who practices generally, like a family doctor practices generally, can be a very good attorney, it is important the attorney is competent to represent you in your particular matter.

4. Will you use other attorneys or paralegals on my case?

Other attorneys and paralegals are often used to perform important tasks, but should play a limited role. It is important that you ask to meet them and use your own personal judgment to evaluate them. Even though the subject matter and law governing your case might be unfamiliar to you, you should not discount your ability to size-up potential legal staff.

5. What is your policy regarding returning my phone calls?

The most frequent complaint of clients is unreturned phone calls. Your attorney should have a 24-hour turnaround on client phone calls, taking into consideration unforeseeable circumstances. It’s a good idea to have this policy written into your retainer agreement with your attorney to ensure compliance.

6. Will you explain to me all of the court procedures, legal concepts, fee arrangements, billing practices, retainer agreements, and payments of costs?

These questions are often time-consuming, but very important. Your attorney should explain to you, in detail, all of the above matters thoroughly.

7. What is your method or strategy for handling cases like mine?

An experienced personal injury attorney should have a streamlined process for “working-up” cases like yours. The level of detail contained in the attorney’s process will demonstrate his or her organization skills and familiarity with the subject matter and law of your case.

8. What is the likelihood of a quick settlement or trial?

Beware of the attorney who promises a quick settlement or trial! However, your attorney should be able to provide a well-reasoned estimate of the time necessary to reach disposition of your case.

9. Do I even have a case? And if so, what do you think my chances are for receiving a settlement?

An experienced attorney should be able to inform you if your case is worth pursuing and/or if there exists a possibility of recovery. Sometimes people are hurt, injured, or suffer injustice and there is no legal remedy. A good attorney will provide you with his or her strategy for your case, explaining the steps they will take and the likelihood of your success at trial or settlement.

10. Do you have a policy of professional liability insurance?

Like doctors, all attorneys, personal injury or otherwise, should maintain a malpractice insurance policy in the event that mistakes occur on your case.

A final note: No attorney can guarantee a particular outcome. Also, if your case presents a new area of law or a type of wrongdoing that hasn't been settled by the courts in the past, then it may be difficult to find an attorney with unique specialization in the area. One of the most important things to look for in an attorney, besides competency to handle the matter, is whether or not you believe you can work effectively with the lawyer. The relationship, and your "gut" feeling, will probably be an important part of the hiring process.

For more information on hiring a personal injury attorney, contact a lead counsel rated attorney today.

The Benefits of Litigation Funding Companies

Wed, 06 May 2009 18:30:51 GMT

The law provides a potential remedy for plaintiffs who are hurt due to the negligence or recklessness of others. Specifically, state and federal laws allow plaintiffs to sue defendants to recover the damages that they incur as a result of the defendant’s legal negligence. While the effects of the personal injury can never be fully negated, damages are intended to put the plaintiff in the position he was prior to the accident, to the greatest extent possible. So, for example, damages may include compensation for medical bills, lost wages and pain and suffering.

However, many times plaintiffs must engage in costly litigation in order to recover those damages. A plaintiff who has costly medical bills and lost wages may not be in a position to cover the costs of litigation even if the potential damages are important to the plaintiff’s future and the litigation costs are recoverable from the defendant. Accordingly, litigation funding is important to both plaintiffs and to the justice system.

Litigation Funding May Allow for a Fair Conclusion to a Legal Dispute

The financial pressure associated with recovery from a personal injury is often an important factor in determining whether a plaintiff accepts a settlement offer from an insurance company or defendant. Often, insurance companies and defense attorneys are aware of the plaintiff’s mounting bills and obligations and offer settlements that are significantly lower than what a plaintiff is likely to recover at trial. They reason that plaintiffs need the money quickly to pay their lawyers, their doctors and in some cases to keep their health insurance or their homes and that plaintiffs will therefore take the early settlement even if it is for less money than they are entitled to recover.

Litigation funding companies can remove much of the immediate financial pressure for plaintiffs. The money that is obtained from litigation funding companies can be used to fund the litigation itself or to pay any of the plaintiff’s bills. Without the immediate financial pressures, many plaintiffs may be willing to wait for a better settlement offer or be willing to take the case to trial.

Litigation Funding May Provide the Plaintiff with Cash Quickly

Many litigation funding companies quickly provide cash to plaintiffs who are approved for their programs. The funds may be used for any purpose. Often, they are used to pay medical bills, rehabilitation services, household help and everyday expenses while the plaintiff is recovering from injuries. For many plaintiffs, litigation funding companies can provide funds months and even years earlier than the judicial system can award damages. That can significantly help a person’s recovery by reducing the stress associated with the mounting bills and expenses.

Litigation is lengthy, stressful and, costly. Litigation funding companies can help plaintiffs in their quest for justice by removing some of the financial barriers that often prevent them from pursuing their case until a fair settlement is offered or a jury renders its verdict.

If you are interested in benefits of litigation funding, please contact a litigation funding company for additional information.

How to Choose a Litigation Funding Company

Wed, 06 May 2009 18:31:44 GMT

Many plaintiffs find litigation funding to be an important part of their personal strategy to maximize the amount of damages that they can recover from a defendant in a personal injury lawsuit. Litigation funding companies can provide plaintiffs with the money that they need to fund their lawsuit and to pay their expenses while their case is being litigated. In return, the litigation funding company is entitled to recover its money plus any agreed upon fees or interest from the plaintiff if the plaintiff is awarded damages in litigation or a settlement.

It is important for plaintiffs to remember that not all litigation funding companies have the same policies or fees. Therefore, plaintiffs should research the following information prior to entering into an agreement with a litigation funding company:

Ask about upfront payments/ monthly charges: Litigation funding companies often charge fees in return for their services. Some charge both an upfront or an origination fee and a monthly maintenance fee while others only charge one of those types of fees.
Ask about application fees: Some companies require you to pay an application fee regardless of whether the company decides to provide you with the funds for your lawsuit.
Ask what happens if you lose your case: Some litigation funding companies only recover the money that they provided to a plaintiff if the plaintiff wins the lawsuit. So, if the plaintiff loses the lawsuit then the litigation funding company does not recover anything. If you seek to do business with a litigation funding company that does not have this policy and will instead require you to repay the money even if you lose your case, then you should be prepared to repay the money if you lose your lawsuit.
Testimonials: A reputable litigation funding company should be able to provide you with references so that you can speak to previous customers about their experiences before doing business with the company.
Attorney recommendations: Many states allow attorneys to recommend specific litigation funding companies to their clients. Your attorney can be a reliable source for finding a reputable company.
Understand what happens if you win your case: Litigation funding companies recover their money if you win your case. However, it is important to understand just how much money the litigation funding company will be entitled to if you recover damages. Most companies recover the amount provided by the company to the plaintiff plus an additional amount for every month between the time the money was provided to the plaintiff and the money was returned to the company. That amount varies from company to company but is typically in the 3-5% per month range.

If the litigation funding company is hesitant to provide you with the information that you seek or if previous customers or attorneys have reservations about the company then it is important that you think carefully before entering a contract. There are plenty of reputable litigation funding companies available that provide plaintiffs with the money necessary to win their case.

What is Litigation Funding?

Wed, 06 May 2009 18:32:27 GMT

Sometimes you have no choice but to sue another party in court for personal injuries that sustained in an accident. The reasons for the lawsuit may be just and the potential outcome of the lawsuit may be important. However, no matter how just or important a case is the potential plaintiff must weigh the potential benefits of litigation against the actual costs of litigation.

The Costs of Litigation

There is no arguing that litigation is expensive. In addition to attorney’s fees, plaintiffs usually have to pay court costs and may also need to pay for things such as expert witnesses and discovery. Some plaintiffs feel that they cannot handle these litigation costs and they either choose not to file a lawsuit or they accept a quick and often low settlement offer in order to avoid incurring further expenses. They should be aware, however, of different litigation funding options which may help them effectively handle the costs of litigation.

Litigation Funding Options

Few plaintiffs have the resources to pay all of the costs described above out of pocket. Instead, many personal injury plaintiffs use one or more of the litigation funding options that are available. Depending on his or her financial situation and the circumstances of his or her case, a plaintiff may find one of the following litigation funding options beneficial:

· Contingent Fee: Many persona l injury attorneys are hired by plaintiffs on a contingent fee basis. That means that the attorney does not collect a fee unless the plaintiff recovers damages either through a settlement or a court proceeding. If the plaintiff does not recover any damages then the attorney is not paid. However, plaintiffs should be aware that attorneys who are paid pursuant to a contingent fee arrangement may take a relatively high percentage of the damages in return for the risk that they take of not being paid at all. Also, the plaintiff is still responsible for all court costs, expert witness fees and other litigation costs. Often, these costs must be paid periodically throughout the course of the ligation.

· Loan from a Relative or Friend: Many plaintiffs find it necessary to borrow money from friends or relatives in order to pay their attorney fees and / or their litigation expenses. The terms of every loan are different. Some plaintiffs might find these the least complicated and least expensive way of borrowing money to fund their lawsuit. However, other plaintiffs may find it uncomfortable to borrow money from a friend or relative.

· Litigation Funding Company: Litigation funding companies provide qualifying personal injury plaintiffs with funds in advance of the lawsuit’s resolution. If the litigation funding company finds it likely that the plaintiff will recover damages then the company may provide money to the plaintiff. Then when damages are awarded the litigation funding company is repaid the money that was borrowed along with any previously agreed upon fees and interest.

· Personal Loan: It is often difficult for personal injury plaintiffs to obtain personal loans through banks in order to finance their lawsuits. Banks typically view these loans as too risky since it is difficult to predict how a jury will view the facts of the case and what kind of award the jury might make in a case.

If you are a personal injury plaintiff then it is important to consider all of your funding options prior to deciding how best to proceed with your lawsuit.

What to Do After a Motor Vehicle Accident

Sat, 01 Aug 2009 18:39:32 GMT

You heard the crunch of the metal. You lived through the seconds that seemed to stand still while you awaited your fate. Then the car accident is over. Once the cars have stopped, your next steps will probably be to catch your breath, examine your injuries, check on the safety of others involved in the accident and ascertain the extent of the property damage caused by the accident. After your take that deep breath, the steps that you take next can be very important to your health and to your financial future. Those things include:

Call The Police: the police should be called to the scene of any accident. The police will need to write a police report about the facts and potential causes of the accident. If the accident was serious or there were injuries then you should contact the police by calling 911 for emergency services otherwise you can use your local non-emergency number.
Seek Medical Attention: accident injuries may be readily apparent or may develop within hours or even days of the accident. If the injuries seem serious or life threatening then you should call 911 to have an ambulance dispatched to the scene of the accident. If the injuries do not seem that serious then you can visit your own doctor as soon as possible. If you are in doubt then always err on the side of caution and contact 911.
Wait for the Police: Do not talk about the accident with anyone other than the police and do not admit fault to anyone including the police. Also, do not apologize for the accident as that can be construed as an admission of wrongdoing. Watch the police investigate the accident, if possible, so that you can note any irregularities in their investigation should the police report be inaccurate.
Gather Information at the Scene of the Accident: make sure that you gather the names, addresses, license plate numbers and insurance policy numbers of all other drivers involved in the accident. Also be sure to write down the names, phone numbers and addresses of witnesses to the accident. If possible, take pictures of the accident scene. If you do not have a camera in the car with you then many cell phones have a camera feature that you can use to photographically document the scene.
Obtain a Copy of the Police Report: police reports are typically available within a day or two of the accident. Make sure to request a copy at the police station and review it for accuracy.
Receive Ongoing Medical Care: Many times personal injuries sustained in an accident need ongoing care. Your physician will help you sort out your ongoing medical needs.
Call Your Insurance Company: report the accident to your insurance company but be wary of accepting any settlement offers before consulting with an attorney.
Contact Your Personal Injury Attorney: your attorney can advise you as to your legal rights when you are involved in a car accident and you should contact your attorney as soon as practicable after the accident.

There is no doubt that car accidents are overwhelming. However, instead of panicking or freezing in the accident’s aftermath, follow each of the steps outlined above to make sure that your health and your rights are well protected.

Legal Negligence

Mon, 26 Oct 2009 18:01:09 GMT

Negligence is a term that is commonly used to mean that someone did not act with the appropriate level of care. However, when negligence is used as a legal term it has a very specific definition and in order for a person who sustained injuries in an accident to recover damages, each element of the legal definition of negligence must be satisfied.

Generally, there are four elements that a plaintiff must prove in a negligence case. Those elements include:

· Duty of Care: A plaintiff first needs to establish that the defendant had a legal responsibility to exercise a reasonable degree of care toward the victim. The way in which you determine whether a defendant owed the victim a duty of care depends on the jurisdiction in which the case is heard. Some states have adopted a “foreseeability” test to determine if a duty of care exists. In these states, the defendant owed the victim a duty of care if harm to the victim was a foreseeable consequence of the defendant’s actions. Other states determine whether a duty of care exists by applying a balancing test that considers the forseeability of the harm, the degree of certainty that someone will be harmed, the burden that would be placed on the defendant if he tried to prevent the harm and other similar factors.

· Breach of the Duty of Care: Once a duty of care is established, the plaintiff must prove that duty of care was breached. Typically, the duty of care is breached if the defendant knew what the consequences of his or her actions would be or failed to act like a reasonable person would have acted given the circumstances. The reasonable person standard considers both the location and qualifications of the defendant. For example, a cardiologist is compared to other cardiologists in his jurisdiction when the court is deciding if he failed to act like a reasonable person would act in a medical malpractice action.

· Causation: If a defendant is found to have breached his or her duty of care, the next step for the plaintiff is to prove that the defendant’s actions caused the plaintiff’s injuries which would not have happened but for the defendant’s actions. For example, if the victim was hurt in a car accident then the victim’s injuries must have occurred because of the defendant’s breach of his duty of care (for example, speeding) and not for any other reason (for example, the victim suffered a heart attack while driving).

· Damages: If a plaintiff is successful in proving that the defendant had a duty of care that was breached and that caused the victim’s damages then the plaintiff must prove that he or she is entitled to damages pursuant to state law.

It is important to remember that negligence cases are most often tried in state court and that while many jurisdictions follow the basic definition of negligence provided above, every jurisdiction has its own laws about what constitutes legal negligence. Therefore, it is important to contact a personal injury attorney in the state in which your accident occurred if you believe that you might have a negligence case in that jurisdiction.

Possible Damages in Personal Injury Lawsuit

Mon, 26 Oct 2009 18:01:52 GMT

Accidents can result in significant personal injuries that create many expenses for the victim and can cause extreme financial hardships for the victim and the victim’s family. It seems unfair that a victim should have to suffer the physical and financial consequences of an accident for which the victim was not at fault. Therefore, the law allows personal injury victims to bring lawsuits against the person(s) responsible for their injuries. All United States jurisdictions allow plaintiffs who bring successful cases in state court to recover damages. While each jurisdiction may differ on the dollar amount of damages provided in individual cases, there are some common types of damages that are allowed in most jurisdictions.

Personal injury damages are intended to put a personal injury victim back in the position that he or she would have been had the accident not occurred. While a lawsuit cannot erase the physical pain and emotional suffering of an injured victim, or his survivors, a lawsuit can provide relief from the financial suffering that the victim and his family incur as a result of the accident. Specifically, damages may include:

· Compensation for Medical Expenses: this may include past, current and future medical expenses and rehabilitation costs that are related to your injuries. You may submit evidence of bills already received and doctor and therapist estimates of your future medical needs;

· Compensation for Actual Expenses Incurred as a Result of the Accident: your injuries may leave you unable to care for your minor children, unable to care for an elderly relative, unable to clean your home, unable to cook your meals or unable to run your own errands. It can be very expensive to hire people to take over these responsibilities for you and you may be entitled to compensation for these expenses if you are successful in a personal injury lawsuit. Similarly, if the personal injury victim dies as a result of the injuries sustained in an accident then his family may be entitled to compensation for his funeral costs;

· Compensation for Lost Income: If your injuries leave you unable to work, unable to work as many hours as you did prior to the accident, or unable to remain in the same job that you had before the accident then you may be entitled to lost income that you are now unable to earn because of your injuries. You may also be entitled to compensation for lost income if a family member whom you relied upon for income (such as your spouse or parent) died as a result of personal injuries from an accident;

· Compensation for Pain and Suffering: personal injury victims, or their survivors, may be entitled to compensation for pain and suffering that you incur as a result of your injuries. Your spouse may also be able to recover damages for loss of consortium as a result of your injuries.

· Punitive Damages: in extreme and extraordinary cases of negligence, some jurisdictions may allow the court to award the plaintiff punitive damages that are not meant to compensate the plaintiff but, are rather meant to punish the defendant.

Personal injury law seeks to put the plaintiff back in the financial position that he was prior to the accident. The law recognizes that there is no way to undo all of the harmful effects of an accident but monetary damages can be important to a victim’s financial, physical and emotional recovery.

Inadequate Labels and Warnings

Mon, 26 Oct 2009 18:09:02 GMT

A person who is hurt by a defective product may be entitled to compensation in a products liability lawsuit. There are many ways in which a product can be defective. An error could have been made in the product design or in the manufacturing process, for example. However, a product can also be defective if adequate warnings are not provided to the consumer about its use.

What is an Inadequate Warning or an Inadequate Label?

Most jurisdictions require a manufacturer to include proper warnings on labels, packaging or packaging inserts if the product presents a danger that is known or should be known to the manufacturer. Many courts consider whether the product is dangerous, whether the danger is known or should be known to the manufacturer, whether the danger is present if a consumer uses the product as directed and for its intended purpose and whether the danger is obvious or well known to the user. For example, it may not be necessary to label a set of steak knives with a warning that they are sharp and can be dangerous if they are used on people since that danger is obvious and well known to steak knife users. However, it is legally necessary to include a list of potential side effects on medications since the potential dangers of pharmaceutical drugs are not obvious or well known to most consumers.

If the above conditions are met, then a manufacturer has a duty to provide adequate warnings to consumers. The term “adequate” means different things in different jurisdictions. Generally, courts will look to see if the warning was placed in an obvious place to be seen by consumers, was in language that was able to be easily understood by most consumers and was sufficient to warn consumers of all known side effects.

The lack of an adequate warning can make a product unreasonably safe. If you use a product that failed to come with an adequate warning and you were hurt by that product then you may file a products liability lawsuit against the manufacturer. The statute of limitations in your jurisdiction limits the amount of time that you have to file a lawsuit so it is important to contact a products liability attorney as soon as possible after your injury.

Potential Damages in a Products Liability Lawsuit

The potential damages in a products liability lawsuit that is filed on the basis of a manufacturer failing to provide an adequate warning of the product’s danger include compensation for past and future medical bills, lost income if you lost time from work because of your injuries, rehabilitation costs and compensation for pain and suffering. Some jurisdictions may also allow you to collect punitive damages from the defendant if the defendant’s failure to provide an adequate warning was particularly egregious.

Consumers have the right to use products safely and to know of all potential dangers before they decide to use a product. If the manufacturer of a product has failed to provide you with adequate warnings so that you can make an informed decision about whether or not to use the product then you may decide to file a lawsuit against the manufacturer and seek appropriate damages.

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Wed, 25 Nov 2009 21:40:38 GMT

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