What are compensatory damages?
Compensatory damages "compensate" the injured person for various kinds of losses or damages. These may also be referred to as "actual damages." The courts do not allow lawyers to argue that the award should be what a juror would want if he or she were to go through a similar injury, but the instructions call for "reasonable" compensation.
What is medical malpractice?
Medical malpractice is professional negligence by act or omission by a healthcare provider in which the care provided deviates from accepted standards of practice in the medical community and causes injury to the patient. Standards and regulations for medical malpractice vary by country and jurisdiction within countries. Medical professionals are required to maintain professional liability insurance to offset the risk and costs of lawsuits based on medical malpractice.
How long do I have to bring suit?
The answer to this question differs by state. For example, Florida has a two-year statute of limitations in medical negligence cases. Generally, this means that the lawsuit must be brought within two years from the time the patient, family member, or guardian knew or should have known with reasonable diligence that the injury occurred with a reasonable possibility that medical malpractice caused it.
Florida also has a "statute of repose," another harsh provision in its civil laws. This means that – unless there is fraud, misrepresentation, or concealment – one can never sue a healthcare provider more than four years after the actual malpractice incident. So, even if the family does not know or can't be expected to know, family members cannot bring a claim four years after the incident occurs in most circumstances.
Florida has one significant exception: "Tony's Law," enacted in 1996. For malpractice incidents that occurred after July 1, 1996, the four-year statute of repose cannot cut off a child's malpractice claim before the child's eighth birthday. Be careful, though. The two-year statute can still apply to the claim if the parents or guardians knew or should have known of the injury and the reasonable possibility that medical malpractice caused it.
How long will my case take?
Normally, it takes one to three years to bring a case to conclusion. The time required varies because of factors such as the number of parties involved, the number of depositions and investigations needed, schedules and commitments of experts, the judge, and so forth. Most of the cases that our attorneys accept eventually settle. If the case is tried and you obtain a favorable verdict, a defendant has an absolute right to appeal. That appeal usually prolongs a case's conclusion by two to four years. Although more than 80 percent of our cases settle, we find that defendants – perhaps emboldened by "tort reform" – are growing more willing to take cases all the way to trial.
What is a subrogation claim?
If you have been injured and incurred medical bills because of the negligence of a healthcare provider, your medical bills may have been paid by Medicare, Medicaid, or a group health insurance company or health maintenance organization (HMO). If you obtain a recovery from the negligent healthcare provider who caused your injuries, you are required by law to pay back Medicare, Medicaid, or the group health insurance company or HMO for the bills they paid as a result of the negligence of the defendant. These claims of Medicare, Medicaid, or your insurance company that they should be paid back are called "subrogation claims."
The laws and procedures dealing with Medicaid and health insurance programs are different from state to state, and even different among insurance companies, so you will need to check with your lawyer about the specifics of your case. Medicare is a federal program, so no matter which state you live in, if your bills were paid by Medicare, you will have certain obligations to at least partially reimburse Medicare for what it paid. Similarly, if a medical bill for services related to your injury is unpaid, the unpaid healthcare provider may also have a subrogation claim and need to be paid out of the recovery.
Are there caps on damages?
Some states have enacted laws to put caps or limits on the maximum amounts that people can recover in medical malpractice or other injury cases. Other states have no maximum amount set. Some of the state laws providing for caps on damages are relatively new and are still being challenged on the grounds that they are unconstitutional. Even though there may now be a cap in your state, it may not withstand a final court challenge. You will need to check with a lawyer in your state as to what types of damages are recoverable and whether there are any limitations on the amounts.
On the national front, there has repeatedly been proposed legislation to put a nationwide cap of $250,000 for intangible damages in medical malpractice cases. This cap would be very unfair because it would not just cap frivolous cases, which often get thrown out by the courts or overturned on appeal anyway. The cap would mostly impact legitimate cases with severe injuries and it would mean that the most seriously injured victims will only receive partial compensation while the less severely injured may receive full compensation.
This cap will also discriminate against children, the elderly, and stay-at-home moms who cannot establish the wage losses that others can, so this is all they would get no matter how severe the injury. Most people would agree that, for things like blindness, amputations, and the death of a child, these caps would be terribly unfair.Many people who generally think a cap is a good idea do not understand that the proposed cap is the "gross" amount that may be recovered, and the actual net to the client after deducting attorney fees and expenses may actually be much less. Moreover, if $250,000 is the maximum exposure, insurance companies will rarely ever settle even the most meritorious cases.
What are punitive damages?
Punitive damages are damages not awarded in order to compensate the plaintiff but in order to reform or deter the defendant and similar persons from pursuing a course of action such as that which damaged the plaintiff.
Punitive damages are often awarded when compensatory damages are deemed an inadequate remedy. The court may impose them to prevent under-compensation of plaintiffs, to allow redress for undetectable torts, and to take some strain away from the criminal justice system; however, punitive damages awarded under court systems that recognize them may be difficult to enforce in jurisdictions that do not recognize them. Punitive damages awarded to one party in a United States case would be difficult to get recognition for in a European court, where punitive damages are most likely to be considered to violate "ordre public."
Because they usually compensate the plaintiff in excess of the plaintiff's provable injuries, punitive damages are awarded only in special cases – usually under tort law when the defendant's conduct was egregiously insidious. Punitive damages cannot generally be awarded in contract disputes.
Also, punitive damages can be in excess as compared to the compensatory damages. There are no certain limits or ratio of punitive damages to that of compensatory damages.
Who will decide my case?
In most states, you will have a right to a jury trial if you want one. Your trial will be presided over by a judge, and the judge will decide issues of law and will make rulings on what evidence the jury is entitled to hear. The jury will decide who they think is telling the truth, what the facts are, and the amount of damages you are entitled to recover.
What should I do if my insurance company is denying coverage or delaying payment?
You should seek legal advice immediately. Some cases are easy and quick to handle while others may require aggressive legal actions against the insurance company.
What is a class action lawsuit?
In law, a class action or a representative action is a form of lawsuit in which a large group of people collectively bring a claim to court. This form of collective lawsuit originated in the United States and is still predominately a U.S. phenomenon, at least the U.S. variant of it. In several European countries with civil law, however – as opposed to the Anglo-American common law principle, which is used by U.S. courts – changes have been made in recent years that allow consumer organizations to bring claims on behalf of large groups of consumers.
What is the difference between a class action and a mass tort?
This is the most common question we are asked by our clients who are engaged in either type of lawsuit. A class action is a lawsuit brought by one or a few representatives of a group who have all been harmed by the same entity or entities in substantially the same way. Class actions you may have heard include our litigation against Red Bull. In this instance, Red Bull had represented through advertising that drinking its product would give you more energy and have greater health benefits than drinking a cup of coffee. The company also sold its product for more than a typical cup of coffee. The claims of health benefits and greater mental acuity turned out to be false. Therefore, each person who bought this product because they believed the advertising claims was harmed in exactly the same way; they all paid a premium for a product that isn't proven to be any better than a cheaper alternative. In this type of case, it would be inefficient to gather evidence about each individual's decision making process and so the evidence of one person's claim is used to file a single case on behalf of a group of people. If the lawsuit settles, members of the public who believe they are part of the class can apply to join, and each person will be given an equal share of the settlement.
Our firm also handles mass torts, which are very different. An example of a mass tort litigation is one we are currently engaged in against the manufacturers of Testosterone Replacement Therapy. In this case, several drug manufacturers came out with Testosterone Replacement drugs and advertised them aggressively. The companies claimed that the drugs would revitalize their male users, would increase sex drive, and would lift mood. However, the drugs are now also associated with serious cardiovascular side effects, like heart attacks. There are still a group of people who were harmed by the same claims, but in a mass tort litigation, every single person who was harmed by has an individual case that is filed in federal court under their name. The case is managed in essentially the same way that a single product liability case would be, except that in the same court, at the same time, thousands of other plaintiffs are bringing similar claims. In the interest of efficiency, the lawyers for the plaintiffs will work together to coordinate a strategy, schedule depositions, and make sure that discovery is conducted thoroughly. A mass tort is just a way to manage a large number of similar cases, while still ultimately making all major decisions based on the merits of each person's case. If the case settles, the defendants might offer a 'group settlement', but that just means that they have added up what each person's claim is worth and want to pay it all at the same time. Money is then allocated to each person based on how severe their injuries are and how well documented their treatment. So even though the cases are being managed together, it does not mean that a plaintiff who had a heart attack will get the same settlement as a plaintiff who had chest pain, which is what people fear. In general, a class action is an inappropriate way to pursue claims in areas whereoutcomes can vary widely, so anything involving medical treatment is generally better suited to being managed as a mass tort.
In sum, the outcomes vary within a mass tort based on the merit of the claim, whereas in a class action, each plaintiff is awarded the same amount of money.
How frequently should I call for a status update on my case?
Lawsuits move at different speeds, and often there are periods of inactivity because of crowded court dockets. We strive to keep our clients informed of the progress of their case. If there is a major development in yourcase, you can expect us to contact you.
Please tell us right away if you have a significant change in medical status, or a change of address or phone number.
What is product liability?
A product liability claim is usually based on one or more of the following causes of action: design defect,manufacturing defect, a failure to warn. The claims may succeed even when products were used incorrectly by the consumer, as long as the incorrect use was foreseeable by the manufacturer or other party in the "supply chain."
In general, product liability claims are based not on negligence but rather on strict liability. Under the theory of strict liability, a manufacturer is held liable regardless of whether it acted negligently. This theory allows recovery for an injured customer who might be in a difficult position to prove what a manufacturer did or did not do wrong in its design or manufacturing process. It is presumed that a manufacturer with its deep pockets may be better situated to absorb the cost of liability and would consider such expense in setting prices for its products.
Some legal commentators consider claims of failure to warn to be based on negligence. A basic negligence claim consists of proof of a duty owed, a breach of that duty, an injury, and that the breach proximately caused the plaintiff's injury.
Over time, negligence concepts have arisen to deal with certain specific situations, including negligence per se – using a manufacturer's violation of a law or regulation in place of proof of a duty and a breach – and res ipsa loquitur, an inference of negligence under certain conditions.
Why should I agree to settle my case?
In many instances, it may be advisable to settle the case before it goes to trial. While some injury victims are reluctant to consider a settlement offer from the defendant, refusal to do so may cost you in time, effort, and frustration, not to mention the possibility of losing the case at trial and receiving nothing! This is not to suggest that you accept an unreasonable offer, but please listen to your lawyer's advice regarding settlement. Your lawyer is trained and experienced in dealing with personal injury defendants. He or she is familiar with the defendant's lawyer's tactics. You should take advantage of this knowledge and consider his or her recommendation. The final decision is, however, yours to make, and your lawyer will respect your choice and work as hard as ever to see the case through to a successful conclusion.
Some important matters to keep in mind when considering a settlement offer from the defendant: Settlement negotiations can begin as early as the filing of the pleadings and may not conclude until minutes before the start of trial. Negotiating a settlement is an art; therefore, it is important that you control your emotions when dealing with the defendant and the defendant's lawyer.
You may be asked to sign a document associated with the settlement agreeing to drop all further legal actions involving the defendant and the incident in dispute. This "release" or "waiver" is a typical component of the settlement.
What is a tort?
When someone or something causes an injury to another person or thing, the legal profession calls such an act a "tort." A tort is committed when one person is harmed because of the wrongful act of another. The purpose of tort law is to assign responsibility to the individual, group, or company responsible for causing such harm. The term "personal injury" encompasses a wide variety of circumstances ranging from a stubbed toe, to an amputated limb, to death, and everything and anything in between.