Types of Claims
Claims for injury and harm to persons and/or their property may be based on different legal theories, and are made in the "civil" court system (non-criminal courts). In most civil legal actions, the purpose is to recover "damages," which is a sum of money that a jury, judge, or arbitrator finds to be reasonable compensation to be paid a claimant. The compensation may be for physical injury, emotional harm, property damage, and/or financial loss that a claimant suffered, and which was caused by or resulted from the negligent, grossly negligent, or intentional acts of one or more persons or entities. An entity is something other than a person, such as a business, government, social group, etc. Applicable laws generally allow entities to have certain rights and responsibilities as people, in the courts and in society.
An ordinary negligence claim is based on acting (which, for the purpose of this explanation, includes failing to act) without exercising reasonable care, given the facts and circumstances of any specific situation or event. Reasonable care is generally that type of care or concern which is expected of an ordinary person, or entity. A gross negligence claim alleges acting in a conscious, voluntary, and/or reckless disregard of reasonable care. An intentional act claim alleges acting in a manner which is likely to cause injury or harm to persons, property, or both. Certain claims of negligence, such as healthcare and product liability claims, have special, more specific definitions of negligence, when compared ordinary negligence claims. As an example: health care related claims require proof that the "standard of care" was not met by a health care provider. Generally, the standard of care is determined by the testimony of other health care providers in the same field or specialty.
In order to recover on a civil claim, a claimant must be able to produce evidence that is recognized by law as reliable, such as: testimony of persons with direct knowledge of the particular event or events on which the claim is based; scientifically reliable forms of evidence; documents; photos, videos, and other recordings; and the like. The evidence must allow for a jury, judge, or arbitrator to conclude that, more likely than not: the person or entity acted as claimed, which caused or resulted in the claimant suffering damages. Depending on the type of civil claim, There are varying time limits, depending on the type of claim, in which to present and pursue a claim, after which the right to bring the claim is lost.
Medical Malpractice / Health Care Negligence
Professional negligence in healthcare includes, but is not limited to that of physicians, surgeons, medical doctors, doctors of osteopathy, psychiatrists, nurses, hospitals, chiropractors, dentists, therapists, psychologists, clinics, pharmacies, and the like. These are persons and businesses regulated by the state or federal government as professionals in healthcare and treatment, and providers of services, supplies, and medicines. State and Federal laws on healthcare services and treatment, and related claims for injuries, are different, more specific, and may have special time restrictions or extensions, than as with other negligence claims.
Proof of negligence in healthcare requires proof that a provider breached the applicable standard of care, and that the breach was a cause of injury or harm to the claimant. The standard of care is the minimum level of acceptable professional conduct and practices, as established by others in the same profession. Thus, it takes a licensed general surgeon to discuss whether the standard of care was breached or maintained by another general surgeon, who is the subject of a medical negligence claim. These claims are heavily defended by the insurers of healthcare professionals, often involve complex medical issues, and often involve a claimant that has many health issues and conditions. This causes the need for several treating healthcare providers and expert medical witnesses to be called to testify, and must be paid to do so. Expert medical witnesses are not usually found locally. This is why the costs of pursuing a healthcare negligence claim is substantial, as is the time required to prepare the case for settlement or trial.
Motor Vehicle Negligence
Motor vehicle related claims may result from: collision(s) of two or more vehicles; a vehicle striking an object or rolling over; a vehicle striking a pedestrian or cyclist; and various other motor vehicle related events. The cause may be: driver error; weather and road conditions; mechanical failure; and any number of other causes, or combination of causes.
ABOUT AUTO COLLISIONS & INCIDENTS
Anyone involved in a motor vehicle collision or any other motor vehicle related incident should, if capable, first assist those who are injured or, if injured themselves, obtain proper medical treatment. If you are injured, use caution and common sense about seeking medical evaluation and treatment, as you may be dazed or influenced by adrenaline, and may have acquired a more serious injury than you believe, at the moment. Unless a traffic hazard is created, do not move any vehicles. Report the accident and request that the police come to the scene to investigate and report on it. If you are able, take photos of the scene, the vehicles, and of people involved, for later identification purposes. Explain to any investigating officer the facts of the accident, and any symptoms of injury. Provide only your own, personal recollection, and don't try to fill in any gaps in memory or guess at what may have happened. Obtain license plate numbers and the company names, policy numbers, and contact information for any insurance which cover any and all the vehicles involved. Obtain similar insurance information for drivers, if different from the vehicle’s insurance. Also obtain names, addresses, and telephone numbers of any passengers, and any witnesses. Any vehicle owner, driver, or passenger should report the collision and any injuries to their own insurance company. Be careful not to discuss the details with, or give a written or electronically recorded statement to, any insurance claims representative before consulting with an attorney. Obtain and file any accident report required by the state in which the accident occurred.
YOUR RIGHTS IN AN AUTO ACCIDENT
If you have been involved in an automobile accident and suffered an injury, or if your vehicle or property has been damaged, you have certain rights. You have the right to know the name, address, and telephone number of the driver and owner of any vehicle involved. You also have the right to know the company name, policy number, and contact information for any insurance policy covering the driver or vehicle involved. If you or the vehicle you were in are insured, certain no-fault coverage may apply. This may include coverage for medical payments or personal injury protection, wage loss, vehicle or property damage, towing, or rental car coverage. Depending on the circumstances of the accident, you may have the right to make a claim for any injuries or damages against those who were fully or partially at fault for the accident, even if you were also partially at fault.
LIABILITY INSURANCE protects automobile owners and drivers from the claims of others for injury and harm caused by the negligence of the owner or driver.
PIP (personal injury protection insurance) or MED PAY (medical payments insurance) and UIM (under-insured/uninsured motorist insurance) cover all occupants of an insured vehicle, and insureds and certain family members who are injured by or in a motor vehicle.
PIP INSURANCE covers 100% (to the limit of coverage) of the reasonable cost of accident-related medical expenses, a substantial portion of actual wage losses, and reasonable out-of-pocket expenses incurred for necessary household assistance. Time limits apply.
MED PAY INSURANCE is similar to PIP in persons covered, but only pays for medical treatment.
PIP and MED PAY are used first, until coverage or time limits are reached. After that, medical insurance applies.
UIM INSURANCE is your vehicle's insurance that covers injury and damages incurred by you and any occupant of your vehicle, and where the negligent driver of a motor vehicle or its owner has insufficient or no liability insurance to do so.
COLLISION INSURANCE pays for damage to an insured motor vehicle as the result of a physical accident, regardless of fault or negligence. Comprehensive insurance extends collision to theft, fire, weather, broken glass and other risks.
ALL INSURANCE is subject to specific limitations and restrictions on nature and amounts of coverages.
Elder Care Negligence & Abuse
The population of senior citizens in our society is quickly growing, giving rise to numbers and capacities of assisted living facilities, nursing homes, and in-home care providers. Unfortunately, the negligent care, treatment, and abuse of seniors are also rising. This is a result of inadequate screening, training, and staffing of caregivers, and their supervisors. Inadequate nursing or nurses aid staffing may make it impossible to assure timely and accurate medication administration. Inadequate screening and supervision of caregivers may allow employment of those unfit to provide care, resulting in mental, verbal, and physical abuse, and theft of personal belongings and valuables.
These types of claims may be complicated by lack of communication and coordination, and resulting confusion between on-site caregivers and treating physicians, resulting in lack of clarity in determining fault. Also, abused elderly persons are often reluctant or unable to advocate for themselves. Unfortunately, a patient/resident may also contribute to their own harm by refusing to comply with recommended treatment. Unless an elderly person has been determined incompetent by a court, and a guardian appointed to watch over them, they have the right to refuse treatment and care. Bedsores (dicubitis ulcers) occur from facility and caregiver neglect, by failing to turn a patient as frequently as required, and also from a patient's refusal to be turned. It is important that, where possible, family members monitor care and treatment; record and document indications and evidence of improper treatment and abuse; and forcefully advocate for their loved ones, when necessary.
Workplace Injury / 3rd Party Claims
Unless an employer is grossly negligent or reckless in causing an employee injury, an injured employee or their family cannot claim directly against an employer or co-employee for negligence. Workers Compensation was established, primarily, to limit the liability of employers and an injured employee's co-worker for injury occurring in the workplace. It also gives an injured employee compensation for their injury and loss of income occurring as a result of workplace injury, regardless of whether the injured employee was negligent in causing their own injuries. A workplace injury can occur anywhere a work related activity occurs. This includes while driving or occupying a company vehicle, or a personal vehicle if used for an employer’s business purpose, or at the direction of the employer.
However, where a workplace injury is caused in part or whole by negligence of another who is not the injured worker's employer or co-worker, a claim may be made against that other, negligent third party. The injured worker may continue to receive medical and economic benefits under Workers' Compensation. Here, at MJRPS, we accept third party claims when appropriate, but do not provide Workers' Compensation claims services or support. Conversely, most attorneys that provide Workers Compensation claim services and support do not provide third party claim services. Routinely, damages recovered by MJRPS in these third party claims are double, triple, or more in value than is received from workers compensation. When a third party recovery is made, based on formulas, and, at times, negotiation, Workers Compensation must be repaid in part or in full, and future Workers Compensation health or economic benefits may be partially or fully limited or restricted.
Professional negligence includes the negligence of healthcare professionals, attorneys, architects, engineers, or others who hold themselves out to be professionals, and are licensed and regulated by the state or federal government. Professional negligence is generally established where a particular professional provides services in a manner which is below minimum acceptable standards or practices, as are recognized by fellow professionals, and which cause harm or injury to a patient or client, or third parties. Professional negligence claims are complex and costly due to the nature of the professions and the need to have other professionals testify about the applicable standards and practices.
Animal Attacks / Disfigurement
Animals may cause minor to moderate, and sometimes severe personal injury, or death. In some instances, an animal owner is strictly liable for any injury or harm caused by the animal. In other instances, the owner must have reason to believe that the animal is a danger before being responsible for its actions. If an animal injury is the result of negligence, then an injured person may be able to recover past and future medical expenses incurred or to be incurred as a result of the injury. There may also be claims for loss of wages, other past or future costs, pain, suffering, emotional distress and disfigurement.
Unfortunately, facial disfigurement, especially in children, is a frequent result of animal attacks. Please refer to the Physical Injury section on Disfigurement for more information.
Premises and property liability claims are claims for injury that occur on public, business, or private property, where the injury was caused by an unsafe or defective condition of the property. The condition may result from lack of care and/or maintenance, and may be natural or man made. Liability of the owner may depend on the nature of the injured party's status on the property. A business owner generally has a high duty of care to protect a customer from a dangerous condition of the business store or office, and it's related property. A residential property owner has a lesser duty to protect an invited guest, or an uninvited trespasser. Slip or trip and falls are types of premises liability claims.
Dangerous / Defective Products
Physical products such as tools, machines, appliances, toys, and even pharmaceuticals (over the counter or prescription drugs) may cause serious injury or death. Improper or inadequate design, manufacture, development, testing, sales and/or instructions on use or application of the product may cause or contribute to an injury. Those responsible may include manufacturers, distributors, suppliers, marketers, retailers, and others. State and Federal laws on products and related claims for injuries are different, more specific, and may have special time restrictions or extensions, when compared to other types of claims for negligence. It is important to retain (where applicable) all purchase information; assembly, operating or use instructions; service and maintenance records and instructions; and package inserts, labels, and warnings (with pharmaceuticals); and any delivery or transportation records.
Discrimination / Harassment
The Federal government, and all states, have various laws that prohibit discrimination, including discrimination due to: Age; Race/Color; Sex; Disability; and National Origin. Other laws prohibit discrimination based on: Creed (religion); Sexual Orientation/Gender Identity; Veteran/Military Status; HIV or Hepatitis C; Marital Status (except in public accommodation); Breastfeeding (in public accommodation); Families with Children (housing only), and State Employee Whistle-blowers.
Complaints about certain types of alleged discrimination are required to be filed with state and/or federal agencies, and within a short time after the alleged discrimination occurred. These agencies may, among other actions; investigate the claim, and make recommendations about resolving them; conclude there is insufficient evidence to support the claim; find a larger scope of discrimination; withdraw from investigation, and allow a private civil lawsuit to be brought in state or federal court. Failure to timely file any complaints may preclude any further legal action.
Employment Actions & Terminations
State and Federal laws prohibit adverse or punitive employment actions and terminations based on age, race, sex and sexual orientation, religion, national origin, and for other specific reasons. Discrimination laws are complex, as is the consideration of whether to file a complaint with federal or state agencies first, or to proceed against a current or former employer with a direct personal claim. Where there is a written contract of employment, or a verbal employment contract that has been acknowledged by the actions of the employer and employee, there may be a breach of contract claim. Claims may be made for adverse employment actions short of termination, and for constructive or direct termination of employment, when no good or sufficient reason or cause exists. Constructive termination is where an employee resigns as a result of the employer creating or allowing a hostile work environment to occur.