Categories
Personal Injury

What is informed consent and how can it affect a medical malpractice case?

Most doctors will not perform surgery until the patient or the patient’s authorized representative signs a consent form. Contrary to the popular myth, these consent forms do not shield negligent doctors from liability. A consent form simply makes the assumption of the risk defense easier to prove. As outlined below, this defense can be difficult to prove in court.

 

If a Richmond medical malpractice lawyer builds a strong, evidence-based claim, it can withstand insurance company defenses, like the assumption of the risk. This approach usually ensures maximum compensation for these injury victims.

What Is Duty of Care?

 

All negligence claims begin with the appropriate duty of care. Doctors have a fiduciary duty toward their patients. That’s the highest responsibility in Virginia law. Doctors must set aside all other concerns, especially making money, and only do what’s best for their patients.

 

Misdiagnosis is a good example of how this duty works. Nationwide, doctors misdiagnose about 20 percent of their patients, mostly because of a lack of information. In high school, 80 percent is not only a passing grade. Depending on the course, it might be one of the highest grades in the class. But in the doctor-patient context, 80 percent is a failing grade. These doctors are typically negligent.

Lack of Care

 

Frequently, the standard of care comes into play. In terms of surgical procedures, the standard of care usually requires doctors to use the most conservative method possible that could produce the desired results. During the procedure, doctors must adhere to certain standards. 

 

For example, anesthesiologists (who deliver and monitor anesthesia) must thoroughly review cases, use the appropriate amount and type of medication, and remain on close standby in case of emergencies. Any lapse in any area is usually negligence whether or not the patient signed a waiver.

 

The high duty of care is paramount. As the old saying goes, the bigger they are, the harder they fall. So, the higher the duty of care goes, the easier it is to establish a lack of care.

 

Victim/plaintiffs must establish negligence by a preponderance of the evidence (more likely than not). An expert witness testifies as to the standard of care. Then, this witness, or another witness who has reviewed the facts of the case, testifies that the doctor’s conduct fell below that standard of care.

The Assumption of the Risk Defense

 

This defense is very common in medical malpractice and premises liability claims. “Premises liability” includes things like falls and dog bites. The defense excuses a negligence claim if the victim, (1) voluntarily assumed a risk and (2) that risk was known to the victim at the time of the assumption.

 

Initially, many liability waivers are not voluntary agreements. Instead, they are take-it-or-leave-it contracts of adhesion. Regarding medical waivers, patients usually have no chance to negotiate the terms. Even if they had this opportunity, they cannot possibly match a doctor’s negotiating power. Furthermore, the doctor usually will not perform the procedure unless the patient signs the waiver, no matter how badly the patient needs attention.

 

Additionally, the risk which caused an injury is not always a known risk. Bacterial infections are a good example. Many surgical waivers do not mention these risks, as they are not directly related to the procedure. As a result, the doctor is usually responsible for such injuries.

 

Speaking of infections, injuries that defective products cause are usually not medical negligence. Instead, the manufacturer is usually strictly liable for such wounds. Medical malpractice defenses such as assumption of the risk are inapplicable.

 

The Bair Hugger Warming Blanket is a good example. This blanket included a vacuum pump that sucked air from near the floor and uses it to warm the patient’s blanket. The problem is that the air near the floor usually contained bacteria. The heat allowed bacteria to multiply. As a result, open wounds often became seriously infected.

 

The manufacturer of this product was responsible for the infections sustained by its users. No doctor treating a user would have been held negligent because there was no breach of the duty of care by the doctor

You Signed, But You May Still Have a Case – Call Today

 

If you sign a surgical consent form, you may still be eligible for compensation. For a free consultation with an experienced personal injury attorney in Richmond, contact Geoff McDonald & Associates, P.C. Lawyers can connect victims with doctors, even if they have no insurance or money.

 

Categories
Workers' Compensation

Fallen at work? Be sure to follow these steps

Slip-and-fall injuries, along with falls from a height, are among the most common and most deadly work-related injuries. These injuries are especially severe if the victim had a pre-existing condition like a bad knee or poor eyesight. 

 

Thanks to the eggshell skull rule, these victims are usually entitled to maximum compensation. This rule dictates that defendants cannot use a victim’s vulnerabilities as an excuse to reduce or deny necessary compensation. Usually, the defendant in these cases is an insurance company. However, as outlined below, there are times when the defendant is the employer, especially in cases where workers’ compensation is not an option.

 

No matter who the defendant is, a Richmond work accident lawyer can obtain compensation for your injuries. Perhaps more importantly, an attorney also obtains justice and closure. Civil claims are often the only way to convince companies to change the way they do business and effectively promote employee safety.

What Are Subscriber Claims?

 

Subscriber claims: this term is legalese for injury claims against a workers’ compensation insurance company. Workers’ comp provides no-fault benefits which pay for:

 

  • Lost Wages: If the fall injury temporarily disables the victim, workers’ compensation usually pays two-thirds of the worker’s average weekly wage for the duration of the temporary disability. If the injury is permanently disabling, a lump-sum payment is usually available.
  • Medical Bills: Workers’ compensation insurance also pays all reasonably necessary medical bills. This category includes more than hospital or doctor bills. It also covers physical therapy, transportation expenses, medical devices, prescription drugs, and any other related costs.

 

Workers do not need to prove negligence or anything else to obtain this compensation. They must only show that they sustained a work-related injury. Furthermore, as mentioned above, a pre-existing condition does not derail these claims.

 

To start these claims, most workers must notify their supervisors in writing. Electronic or telephone notice might not be good enough. It’s best to send an email and then follow-up with a snail mail notice. 

 

Promptness is important in these claims, and so is perseverance. Typically, claims examiners deny these claims, at least in part. Do not give up or settle your claim for less than it is worth. The outcome is usually a lot different at an appeal hearing. Furthermore, the benefits are usually retroactive. So, you have nothing to lose by appealing a denied claim.

What Are Non-Subscriber Claims?

 

Non-subscriber claims: this term is legalese for job injury claims which insurance does not cover. There are several possible scenarios.

 

To save money on premiums, some companies lie on insurance forms, mostly about payroll size or worker duties. The larger the payroll, the higher the premium. And, the riskier the job, the higher the premium. If the insurance company catches the employer in a lie, the company often refuses to honor the policy.

 

Other employers blatantly ignore the law and do not buy insurance, though they are legally required to do so. Government inspectors are not very diligent in this area, so the chances of getting caught are rather slim. Furthermore, even if they do get caught, the penalty is usually just a small fine.

 

On a related note, some employers buy fake policies or buy policies from under-capitalized companies. These policies might satisfy inspectors, but they do not adequately compensate job injury victims.

 

Finally, some employers purposefully send workers into dangerous environments. For example, so employees work faster, a construction company might remove safety harnesses from a scaffolding. 

 

In nonsubscriber claims, fall injury victims usually can file claims in civil court. If successful, these victims can obtain additional compensation for things like pain and suffering, loss of enjoyment in life, and emotional distress. Furthermore, these employers often cannot use comparative fault and some other “silver bullet” defenses. So, it’s easier to establish these claims.

Start Your Claim Today by Calling an Experienced Personal Injury Lawyer

 

Procedurally, an attorney usually handles these claims from start to finish. There are no forms to fill out and no immediate deadlines to worry about. If you fell at work, substantial compensation is available for your serious injuries. For a free consultation with an experienced workers’ compensation attorney in Richmond, contact Geoff McDonald & Associates, P.C. We do not charge upfront legal fees in these matters.

Categories
Auto Accident News

New distracted driving laws

On January 21, 2021, Virginia became one of the only states in the country with a comprehensive distracted driving law. It is now illegal for drivers to hold and use a cell phone in the Old Dominion. The previous law had very limited applicability.

 

Hand-held devices combine all three forms of distracted driving: (1) these operators take their eyes off the road (visual distraction); (2) they take a hand off the wheel (manual distraction); and (3) they take their minds off driving (cognitive distraction). However, as outlined below, other distractions are often just as serious.

 

The law also muddied the waters in terms of injury claims. Many people are unsure of their rights. Even if the tortfeasor (negligent driver) did not violate the cell phone law, a Richmond accident lawyer can still obtain compensation for these car crash victims.

Device Distraction and Negligence Per Se

 

If a driver violates the new cell phone law and causes a crash, that driver may be responsible for damages as a matter of law. The negligence per se doctrine usually applies if the tortfeasor violated a safety law and the victim is of the class the law was designed to protect. 

 

These cases are not just easier for Richmond personal injury attorneys to prove. Since these drivers arguably ignore the safety of others, jurors often award substantial verdicts in these situations. These verdicts usually include compensation for economic losses, such as medical bills, and noneconomic losses, such as pain and suffering.

 

However, even if a driver was using a hand-held phone, many emergency responders do not issue tickets. Generally, responders arrive at crash scenes after the fact. If they did not see the tortfeasor using a phone, these charges often do not hold up in court. So, from this perspective, writing a ticket may be a waste of resources.

 

Furthermore, many responders do not issue tickets after accidents as a matter of departmental or personal policy. Many police officers view car crashes as civil disputes, and they do not want to get involved.

Ordinary Negligence

 

If emergency responders do not issue a cell phone ticket, the ordinary negligence doctrine usually applies. In this context, ordinary negligence is usually a lack of reasonable care. The law holds commercial operators, like Uber drivers and truck drivers, to a higher standard.

 

This rule also comes into play if a hands-free device distracted the motorist and caused a crash. Considerable evidence indicates that hands-free phones are worse than hand-held phones. Hands-free devices are visually and cognitively distracting. Additionally, these gadgets give many drivers a false sense of security. So, they often take unnecessary risks behind the wheel.

 

In these claims, victim/plaintiffs must prove negligence, which again is a lack of care, by a preponderance of the evidence, or more likely than not. Evidence in these claims includes:

 

  • Erratic driving before the crash
  • Device use logs
  • Witness statements
  • Presence of a phone near the driver
  • Tortfeasor’s statements about device use

 

A preponderance of the evidence is the lowest burden of evidence in Virginia law. So, a little bit of this evidence goes a long way.

 

Device use logs are often the most compelling bit of evidence. An attorney must act quickly to preserve them. Frequently, people “accidentally” delete these logs. Deleted logs are still buried on the device’s hard drive. But it’s more expensive and time-consuming to extract them.

 

It’s much easier to send a spoliation letter. These letters create a legal duty to preserve all possible physical evidence for trial. Spoliation letters also preserve other electronic evidence, like a vehicle’s Event Data Recorder. An EDR is basically like a black box flight data recorder.

Victim of an Auto Accident? Learn More with a Free Consultation

 

Distracted driver crash victims usually have multiple legal options. For a free consultation with an experienced personal injury attorney in Richmond, contact Geoff McDonald & Associates, P.C. We do not charge upfront legal fees in these matters.

Categories
Workers' Compensation

Workers’ Compensation and Repetitive Stress Injuries in Virginia

Many people unintentionally torpedo their own injury claims when they give statements to insurance adjusters. Work-related repetitive stress injuries are a good example. Unless your pain has an ascertainable starting point, as outlined below, claims examiners in Virginia will almost always deny your application.

 

Workers’ compensation is unavailable for repetitive stress injuries, such as back pain, knee pain, and CTS (Carpal Tunnel Syndrome). Many of these injuries require extensive surgery to correct.

 

If you experienced such an injury, it’s important to team up with a Richmond work accident lawyer right from the start. A lawyer knows more than what evidence to present. An attorney knows how to present this evidence in a way that maximizes your compensation. In job injury claims, this compensation usually includes lost wage replacement and medical bill payment.

Filing a Claim

Job injury victims must immediately file written claims. Depending on the policy, most victims only have ten days to file. So, even if your injury might have involved repetitive stress, notify your supervisor straight away.

 

However, also depending on the policy, you can typically amend your claim later. In these cases, it’s usually best to initially describe the injury in vague terms. With the help of a work injury lawyer, you can add details later.

 

Do not speak with a workers’ compensation insurance adjuster about your claim. Telephone adjusters seem nice, but they are trained to extract damaging information from job injury victims. For example, in repetitive stress claims, they usually ask open-ended questions. Furthermore, they never prompt the victim to give the pain a starting point.

 

At some point, the insurance company will want your statement, and they have a right to demand it. You also have a right to speak with your attorney before you make such a statement.

The Starting Point of Repetitive Trauma Injuries

All pain begins somewhere. At some point, the victim feels or hears what we refer to as a “snap, crackle, or pop.” Sometimes, the indication is so subtle that the victim must work to remember the starting point. But it’s almost always there.

 

If your pain has a concrete starting point, and, more importantly, if your claim reflects that starting point, you are typically eligible for workers’ compensation benefits even if your condition is normally associated with repetitive trauma.

 

These benefits usually include lost wage replacement and medical bill payment. Usually, these benefits are available for up to 500 post-injury weeks in Virginia.

Aggravation

In Virginia, repetitive stress injuries are really aggravation injuries. This aggravation could be work or non-work-related.

 

As for work-related aggravations, most victims do not run to the doctor the first time they feel a twinge in their backs. Instead, they try to tough it out, sometimes for many weeks or months. If subsequent work-related acts, especially lifting, aggravate the work injury, full compensation is usually available.

 

Generally, full compensation is also available if a non-work or pre-existing condition aggravated the work-related injury. For example, Michael might hurt his back at work and aggravate the injury when he picks his small child up off the floor. Victims like Michael must simply prove that a job injury accelerated, aggravated, or exacerbated their pre-existing or non-work condition.

Call Today to Get Started

Repetitive stress injuries are difficult to classify in Virginia. For a free consultation with an experienced workers’ compensation attorney in Richmond, contact Geoff McDonald & Associates, P.C. We routinely handle matters in Richmond County and nearby jurisdictions.

Categories
Personal Injury

Who May Be at Fault in a Construction Accident?

They may seem simple on the onset—a fall from a scaffold or faulty machinery causing injury—but construction accidents can be quite complex. In some cases, you may have to file for workers’ compensation. In other cases, you may have to make a third-party claim to seek damage recovery. Not only that, but your role or classification on the construction site may further complicate things. Were you a contractor at the time? A part-time employee? Full-time employee?

Your case may be made easier with all these complexities out of the way, and clearing the air starts by understanding ways fault may vary in construction accidents and how personal injury attorneys go about proving fault.

A Brief Summary of Negligence

If you’ve never made a personal injury claim, you’re likely unaware of how negligence plays into a successful case. Day-to-day activities come with underlying duties, sometimes more explicit than others. Managers of a construction project, for example, may have a duty to ensure their employees and contractors understand Virginia and industry safety regulations. If they do not adhere to this duty, the managers may be considered “negligent” and the company held liable. On the road, drivers must fulfill a duty to adhere to driving laws. When they do not do so, they breach this duty and may be considered the at-fault, negligent party should their actions result in an accident.

Fault by Scenario

What does all this mean for a construction accident? When personal injury lawyers perform their investigation of the accident details, they trace the evidence to identify who is more likely to have been negligent and therefore liable. Liability can change drastically based on one or two simple details. Take the following scenarios, for example:

Scenario 1

A property owner doesn’t adequately maintain a safe environment for a construction company they have hired for a remodel job. Consequently, a worker becomes injured as a direct result of this unsafe environment—unrelated to their job duties. In this case, the property owner is at fault for the accident. Therefore, the construction worker will need to make a claim with the property owner’s appropriate insurance company and, if necessary, take them to court. This is what’s known as a third-party claim.

Scenario 2

A worker performing their job-related duties becomes injured without any visible signs of negligence or fault on their part or the part of a third-party. After seeking medical attention, the worker should submit a written notice of the incident to their employer as soon as possible (under 30 days). They should then contact an attorney and file a workers’ comp claim through their employer’s workers’ comp insurance company. Note that your classification may affect your ability to make a claim. The workers’ compensation lawyer you consult with can better help you understand your options for damage recovery.

Scenario 3

A subcontractor is hired for a construction job. While performing their duties alongside a full-time employee of the construction company, the subcontractor leaves machinery running and goes off to perform another task. Then, the full-time employee, unaware that the machinery is on, subsequently injures themselves. In this case, the subcontractor is at fault and their representing agency or insurer will need to compensate for the accident. In cases like these, the full-time employee may first make a workers’ comp claim and then the workers’ comp insurer may then follow up with the subcontractor’s representative with their own claim.

Start Your Case Today with a Free Consultation from Geoff McDonald & Associates

As you can see, there are a lot of details that make a difference in whether a person may make a construction accident claim and where they must go to seek compensation. If you were injured in a construction accident, connect with our office today for a free consultation to better understand your options moving forward.

 

Categories
Personal Injury

What If I Was Partially at Fault for My Accident?

Until it’s them or their loved ones involved in the accident, most people don’t consider how state laws and regulations affect their pursuit of financial recovery. After all, what the average American knows about personal injury claims and lawsuits usually stems from high-profile cases that may involve a celebrity or commercial conglomerate. It’s perfectly normal to wonder—and to not know, for that matter—whether your own contributions to your injury will prevent you from a successful personal injury case. To start, let’s jump right into Virginia negligence laws and how they can impact personal injury claims.

Virginia Negligence Law

Unless the injury occurred to a railroad employee or another party falling under Virginia’s civil remedy titles, individuals who are partially at fault for their own injuries are not likely to recover financial compensation per Virginia law if they contributed to their injuries.

However, it’s very important to note that while you may believe you are partially responsible for your injuries, the evidence may say otherwise. Some individuals spend months—if not years—after a traumatic accident playing the event over in their minds, wondering “if only I had just done X or Y, I would have my health.” But the simple fact is that these cases are complex and how an insurer or civil court sees the event is not always how the injured party sees it.

To understand the full scope of negligence in a personal injury case, and consequently better understanding whether you yourself had a hand in your injury, you can schedule a free case consultation with an experienced attorney.

What Exactly Is Negligence?

You have a role. Whether you’re a worker, a physician, a parent, or the driver of a motor vehicle, you adhere to a set of—sometimes unspoken—standards for what it means to be a reasonable participant in that role. Negligence occurs when you fail to reasonably perform your duties in that role. Negligence, as it relates to personal injury cases, involves something called “duty of care.”

That is, when you drive your vehicle, it is expected that you abide by the laws of the road. In abiding by these laws, you’re upholding your duty in caring for yourself, your passengers, and those in other vehicles.

In legal terms, when you fail to meet your “duty of care,” your duty of care has become “breached.” In successful personal injury cases, lawyers will seek to prove that the defendant—who must compensate the injured if the case is successful—breached their duty of care and that this breached duty directly led to the plaintiff’s injuries.

So, to recap, parties who are at-fault in an accident:

  • Held a duty of care
  • Breached their duty of care
  • Their actions (or inaction) directly resulted in the plaintiff’s injuries

Also note, it is the plaintiff and their attorney’s responsibility to prove that the damages claimed in the personal injury case be directly connected to the event in question. For example, you were to claim a bill for physical therapy, you will have to prove that the physical therapy is for the injuries sustained in the accident. 

Pure Contributory Negligence

Virginia is an outlier in the United States in that it recognizes the pure contributory negligence rule. This rule states that individuals or groups found partially at fault for their injuries may not recover financial compensation for their related losses.

Connect with Geoff McDonald & Associates for a Free Consultation

Unsure whether you have a personal injury case? There’s no harm in reaching out! Our attorneys have decades of combined experience in and out of the personal injury courtroom. We also review a wide range of personal injury case types and we serve Virginians from throughout the state. You can call our office in Richmond or contact us online to get started.