Wrongful Death Explained

Some of the saddest situations we encounter concern wrongful death lawsuits.

What is a Wrongful Death Lawsuit?

When someone dies or is killed as the result of the negligence or actions of another—  including murder —the surviving members of the victim’s family can bring a civil lawsuit for “wrongful death.” Because wrongful death is a civil tort, and not Penal Code violation, the legal standard for proving that the defendant wrongfully caused the death of the victim is far less than that required in criminal cases. As a result, it makes it easier to prove, especially where the civil case is based on the criminal case, as in a murder situation.

On the other hand, even if the surviving members of the victim’s family prove their case against the defendant, the defendant will not go to jail. Instead, he will be required to pay the family damages (i.e., money). That is not to say that the person who commits murder or commits other crimes associated with the victim’s death cannot or will not be prosecuted criminally, either before or after the civil case. The point is only that in a civil lawsuit, the remedy is money damages. In a criminal case, it is incarceration and restitution.

Who Can File a Wrongful Death Lawsuit?

A wrongful death lawsuit can only be brought by the personal representative of the decedent’s estate. This type of lawsuit is the governed by statute. Each State has its own statutes governing wrongful death actions.

Personal Injury, Medical Malpractice and Wrongful Death.

Many wrongful death actions arise out of car accidents, fights, medical malpractice, job injuries, or criminal activity. Wrongful death actions allow the decedent’s representative to get money damages (for the estate) caused by the tort. In addition, decedent’s representative can recover for the pain and suffering that the victim endured before death. This is because the personal injury action survives the death of the person who suffered the injury. “Survival actions” as they are called, can be brought to get compensation for the pain and suffering the victim endured.

Personal Injury Attorneys.

If you or someone you love has been injured or died because of another’s negligence or willful misconduct, call us. We can help. We have offices in Washington and throughout Oregon. To set up your free consultation, give us a call or send us an email .

Medical Malpractice Basics

When doctors make mistakes, the impact on their patients can be catastrophic. While most doctors typically provide their patients with the highest standard of care, there are times when things go terribly wrong. Medical malpractice cases are a type of personal injury case where a patient sues his or her doctor (and sometimes the nurses too) for improper or negligent medical care. An act of medical malpractice can arise out of a medical practitioner’s misdiagnosis of a disease, a bungled surgery, misuse of a machine or instrument, or even treating a patient without the patient’s permission.

More Than Just Not Good Treatment.

To rise to the level of medical malpractice, however, the doctor’s actions must constitute more than just not good treatment or care. The patient must be able to prove that the doctor was negligent, in other words, that what the doctor did or failed to do, fell below the standard of care for the medical profession.

Expert Testimony.

In most cases, to prove that a doctor’s treatment fell below the acceptable standard of care for doctors in the community where the alleged malpractice occurred, expert testimony will be required. A medical expert (usually another doctor) qualified in the same area of medicine as the defendant doctor, will have to testify to establish not only what the proper standard of care was, but that the defendant doctor fell below that standard. It can very often be difficult to find a doctor who is willing to testify to another doctor’s negligence.

Problems Proving Medical Malpractice Cases.

In addition to getting expert testimony, there are other factors that make proving a medical malpractice case difficult. Establishing malpractice can be difficult because doctors are often the ones who write the medical reports that form the basis for the lawsuit. It is not unheard of for health care providers to frame their reports in such a way so as to protect someone who was negligent.

The law has legal principles designed to deal with these situations. Nevertheless, medical malpractice cases can often require careful investigation, preparation and planning to be successful.

Speak to an Attorney.

If you or someone you love has been injured, misdiagnosed or treated without your permission, contact us. We are experienced personal injury attorneys and we can help. We have offices in Washington and throughout Oregon. We offer free consultations, reasonable fees, and are committed to our clients. To set up an appointment, call us toll free at: 1-800-682.9568 or contact us through our website.

Dog Bites and Personal Injury

“Man’s best friend” can become your wallet’s worst enemy in a flash — of teeth. Liability for dog bites varies from state to state, however, in general, if you are the owner (or, “pet parent” if you prefer) harborer, or keeper of a dog that bites someone, you can be held liable for the injured person’s economic and in some cases, noneconomic (pain and suffering) damages.

In both Oregon and Washington where we practice, dog owners can be held liable for a dog bite victim’s economic damages. Economic damages can include: medical expenses, rehabilitative services, loss of income, and past and future impairment of earning capacity. Depending on how severe the bite is, things can get expensive pretty fast. Noneconomic damages, such as pain and suffering, may in some cases be more difficult to get, but they can be recovered as well.

Not So Free “One-Free” Bites.

Contrary to what many people may believe, you don’t get a free pass in life and in many states —– like Washington— your dog does not get one “free” bite. Fido bites, you pay. It’s as simple as that. It doesn’t matter that the dog had never bitten anyone before or that the owner had no idea that the dog would bite someone.

In Oregon, the laws are a little less strict. But not much. The dog bite victim does not have to prove that the owner of the dog knew or should have known that the dog would bite in order to recover economic damages, and it is no defense to the owner that he couldn’t foresee that the dog would bite someone.

However, in Washington, unless the dog is a police dog, the owner is strictly liable for the dog’s actions, if the dog victim was attacked in a public place, or private place where he had a right to be. This “absolute” or “strict” liability means that, consistent with other personal injury claims, the owner of a dog that has bitten someone will be liable for whatever amount of money the jury, judge or arbitrator determines is fair to compensate the victim for his or her economic and noneconomic damages. That means that the dog owner will be responsible for paying the victim’s past and future medical bills, wage loss, impaired earnings, anxiety, fear, sleeplessness, pain, mental anguish, disfigurement and more.

In Oregon, it is a little more difficult for the bite victim to get noneconomic (pain and suffering) damages. Because dog owners are not held strictly liable if their dog bites someone, the victim would have to prove that the dog had known “dangerous propensities.”

We Are Here To Help!

If you are the victim of a dog bite or own a dog that has attacked someone, we can help. We are experienced attorneys with offices in Washington and throughout Oregon. We offer free consultations, reasonable fees, and are committed to getting our clients the relief they need. To set up an appointment, call us toll free at: 1-800-682.9568 or contact us through our website.

Libel and Personal Injury

Great place, America. It’s the land of the free and home of the brave. We’ve got the right to bear arms, and to say anything we want to.

Well, almost.

While we do have a Constitutional right to free speech, others have personal rights too. And it’s not unusual for one person’s free speech rights to run up against another person’s right to protect his reputation. You take your speech too far, and you just might run into the laws of defamation.

Defamation: Libel and Slander.

“Defamation” is the broad term that covers the civil tort of making statements that injure another’s business or personal reputation. Written statements that damage another’s reputation are called “libel.” Spoken statements are called “slander.”  A person who has suffered (or thinks he has suffered) a defamatory statement can sue the person who made the statement.

To prove either type of defamation, a plaintiff must prove 4 elements:

  1. a false statement purporting to be fact
  2. publication or communication of that statement to a third person
  3. fault amounting to at least negligence, and
  4. damages orsome harm caused to the person or entity who is the subject of the statement.

Libel and Social Media

The prevalence of access to the internet, and social media in particular, has made it easier than ever to make defamatory statements about people or their companies. For example, internet services like Yelp! are specifically designed to allow people to review and comment on other people’s businesses. With social media services (Twitter, Facebook, YouTube) you can instantly publish comments and it’s not unusual for people to publish disparaging comments. Yet a false and damaging Yelp! review, tweet, YouTube video, or Facebook update can become a defamatory statement (libel) that is actionable by the person or company you are writing about. And that means that you could very well end up defending yourself in a defamation lawsuit.

Defenses and Privileges.

Not every statement that is injurious to a person’s or company’s reputation is actionable, however. State laws vary, but there are defenses and privileges that prevent a statement from being actionable as libel or slander. For example, “truth” is an absolute defense to all defamation claims. To prove defamation, a plaintiff must prove that the statement was false, and must show that the defendant was at fault. There are also absolute and qualified privileges that serve as defenses against libel or slander claims.

Know Your Rights!

If you are facing a defamation lawsuit or believe you have been defamed, contact us. We have offices in Tigard, Salem, Albany, Grants Pass, Klamath Falls, Bend, and several other cities in Oregon. We also have offices in Vancouver and Tri-Cities in Washington. You can call us toll free at: 1-800-682.9568.

When Can You Recover for Pain and Suffering?

If you have been in a car accident, the extent of the damage to your car is pretty obvious, but what about you? You not only have medical bills, but you are also suffering from the mental and emotional impact of the accident: you’re upset, you’re afraid to drive or be in a car again, or maybe you’re up all night because you can’t get it off your mind or the pain is keeping you awake. Is that something you can recover money for?

Yes, it is. Mental and emotional damage resulting from an accident or injury is compensable.

What is Pain and Suffering?

When someone files a civil lawsuit, they are generally looking for money to compensate them for the damage or injury done to them. Damages fall into two categories: (1) economic and (2) noneconomic.

Economic damages refer to money losses, like medical bills, car repair costs, lost wages, etc.

Noneconomic damages, however, refer to more intangible damages, like injury to reputation, mental distress, or humiliation. In the context of a personal injury action, “pain and suffering” generally refers to the noneconomic, mental or emotional damage you suffer as the result of an injury or accident.

How Much Can You Recover for Your Pain and Suffering?

It’s not easy to evaluate a person’s pain and suffering. As you might imagine, everyone is different, so there is no bright line for calculating pain and suffering damages. Calculating pain and suffering damages involves a balancing of many factors.

State laws put limits on the type of noneconomic damages you can recover for and how much you can recover for them. For example, Oregon law limits recovery for pain and suffering to $500,000. Washington State, on the other hand, limits the amount you can receive from the parents of a child under 18 who is living at home and may have willfully injured you, and uses a wage times life expectancy calculation to limit other noneconomic damages.

When Can You Recover for Pain and Suffering?

Noneconomic damages like pain and suffering are generally part of any personal injury or car accident litigation. However, just because the ability to recover such damages exists, that does not mean that the insurance company will automatically pay for them. You will need to prove the extent of your damages —including your pain and suffering— with evidence and testimony. Some documents you may need to provide are:

  • Prescription receipts.
  • Over-the-counter medication receipts.
  • Medical bills, if any, for therapy, ambulance costs, x-rays, emergency room visits,
  • Proof of lost wages or time off from school.
  • A log of all medical treatment, pain, and missed activities.
  • Photos of your injuries.

Hire a Personal Injury Attorney!

We can take the pain out of personal injury recovery. We offer free consultations, reasonable fees, and are committed to getting our clients the relief they need. To set up an appointment, call us toll free at: 1-800-682.9568 or contact us through our website.

3 Types of Slip and Fall Cases

When a person slips, falls, or otherwise injures themselves on someone else’s property, that person may have the grounds to file a personal injury lawsuit for damages. This type of case will be built on what is known as “premises liability.” Premises liability refers to the legal duty a property owner has towards anyone who comes onto his or her property.

There are two primary elements used to determine fault in a premises liability claim:

  • Whether the property owner acted in a reasonable manner to prevent or address a dangerous condition
  • Whether the injured party was careless

In other words, for the injured party to have a strong claim, the property owner must have known about the dangerous condition and been careless in remedying or addressing it. Premise liability cases can be divided into three general categories by the location of the injury.

  1. Business liability for injuries

If you have suffered an injury on the premises of a business property due to property owner or employee negligence, you may have grounds for a personal injury claim. Business property owners have a legal duty to do everything that’s reasonably within their ability to make their property safe. Property owners are responsible for putting in place adequate safeguards (again, within reason) to protect visitors from harm.

  1. Residential injuries that take place in a home or apartment

These types of claims will usually involve homeowners insurance. If you are injured at home, be sure to carefully go over your homeowner insurance policy to assess your coverage. Every year insurance companies reject numerous claims for injury claims that are not covered.

  1. Injuries that take place in other locations

These types of cases can be tricky as it can be hard to know how to proceed or who to make a personal injury claim against. Some premises that may fall under this category include:

  • Parking lots or garages
  • Sidewalks and walkways
  • Public or government property

 

What is the Statute of Limitations on Filing my Personal Injury Lawsuit?

Every state has its own deadline for filing personal injury lawsuits; this deadline is referred to as the “statute of limitations.” This means that a lawsuit must be filed within a certain time limit from the accident or injury, or else the injured party’s legal claim will be barred and they will forever lose the right to sue over that claim. In other words, the clock starts running on the statute of limitations on the day that you were injured. Depending on the state, the statute of limitations for personal injury cases ranges from one to six years. It’s important that, in the event you have an accident or slip and fall case, you are aware of the applicable statute of limitations to ensure that you don’t file your claim too late.

In some states, the type of personal injury claim can affect the time limit the injured party has to file a claim. For example, some kinds of defamation cases and claims involving persons under 18 may be granted longer time limits, while medical malpractice claims might get a reduced time limit. Most states have an exception to the standard statute of limitations time limits known as the “discovery rule” (or “discovery of harm” rule). The discovery rule exception extends the filing deadline in cases where the injured party was unaware of either: the injury, or the fact that the defendant’s actions may have caused the injury.

An example of the discovery rule in action is a medical malpractice claim where a surgeon left a temporary bandage in a patient’s abdomen, but the mistake was not discovered until years later. In this case, the statute of limitations would probably not start to run until the mistake was discovered. However, for this exception to apply, the delay in discovery must be reasonable. For example, if the patient experienced abdominal pain for years after the mistake but refused to seek treatment, the discovery rule exception might not apply.

Evaluating How Much a Personal Injury Case is Worth

There is no such thing as an “average” settlement. There are simply too many different types of personal injury cases, and in any event a settlement will always depend on the unique facts of that particular case. However, there are some factors common to most personal injury cases. Most personal injury cases end in a settlement rather than a jury verdict. The actual settlement in a personal injury case takes place when the defendant (the person being sued) agrees to pay the plaintiff (the person who is suing) an amount of money to make the plaintiff drop the case.

 

To determine the amount of a settlement, both sides begin by deciding on their own what they think the case is worth. In other words, what a potential jury might award the plaintiff if the case went to trial. This is generally done by researching similar cases to see what juries have awarded in the past, and then factoring in the circumstances of the case at hand. In the event that an insurance company is handling the defendant’s side, there might be predetermined settlement amounts depending on the type of lawsuit.

 

Once both sides have come up with an estimate for an acceptable settlement amount, they will begin making offers and counter-offers. As the facts become clearer and the likelihood of the plaintiff prevailing at trial is fleshed out, the prospective amount may go higher or lower. Once the sides agree on an acceptable settlement amount, they will sign a settlement agreement and the plaintiff then proceeds to drop the case. The following are some key factors that can help determine the potential value of a settlement:

  • The defendant’s assets- If a defendant doesn’t have the means to pay a high settlement, then a high settlement won’t be a possibility regardless of the facts of the case.
  • Damages- For the plaintiff, this entails what their injuries cost monetarily, physically, and mentally. Damages can also include medical expenses, lost work, and any other concrete financial losses suffered by the plaintiff.
  • Liability- This is a strong determinant for how strong the plaintiff’s case actually is, i.e. is the defendant liable for the plaintiff’s injuries. Even if high damages can be shown, liability will still be the crucial issue.

 

 

 

What Are the Most Common Slip and Fall Accidents?

Slip and fall accidents result in thousands of traumatic injuries every year. Here are some of the most common types of slip and falls, and somethings you can watch out for.

  1. Wet and Uneven Surface

This type of accident accounts for 55% of slip and falls every year. When you’re walking anywhere watch out for the following (particularly if you’re in unfamiliar surroundings):

  • Loose floorboards
  • Defective sidewalks
  • Parking lot potholes
  • Cluttered floors
  • Torn carpeting
  • Recently mopped or waxed areas
  • Loose mats
  • Any place where water or other liquid has accumulated
  • Rundown or poorly constructed stairways
  1. Adverse Weather Conditions

Bad weather causes a significant number of slip and fall accidents every year. While winter weather isn’t the only culprit, it does present the most common hazards. Watch for patches of ice, sidewalks and staircases that haven’t been shoveled or salted, and black ice on the pavement.

  1. Improper training in the workplace

Slip and falls are common in the workplace, particularly the construction industry; and they frequently result in litigation. When employees in high risk industries are not given proper safety training or procedures, the risk of slip and falls and other injuries goes up exponentially. Employees should make sure that they receive proper training on all equipment and tools they are expected to use.

  1. Nursing Home Neglect

Sadly, slip and fall accidents are common in nursing homes. The elderly often have an impaired sense of balance which leaves them especially vulnerable to slipping and falling. This risk is compounded by the fact that the chances of a slip and fall injury being life-threatening are also increased in the case of elderly adults. If you have a loved one in a nursing home, make sure the administrators and aides are properly assisting and monitoring their residents.

  1. Footwear

The National Floor Safety Institute has found that 24% of all slip and falls are caused by the wearing of improper footwear. The major risk factor here is when shoes or boots do not offer the right kind of traction for the conditions at hand.

How Can I Prove a Slip and Fall Accident?

Thousands of people are injured in slip and fall accidents every year. These include slipping on a slick surface, falling down stairs, tripping over an object, or stepping in a hole. Proving fault in a slip and fall accident is often difficult, but if you are injured you should know how to go about making a case.

There are four basic elements that must be proven to win a slip and fall claim. Simply because you had an accident on someone else’s property is not necessarily enough to mount a strong case. It must be shown that the property owner had a responsibility to maintain the premises and address any harmful conditions (within reason). In other words, could have the property owner have prevented the accident? While property owners will not necessarily be held liable for something a reasonable person would have avoided, they are expected to take reasonable steps to keep their property free of potentially harmful or unsafe conditions. Courts will often balance the property owner’s duty to keep the premises safe against the care that the accident victim should have used.

To prevail in a slip and fall claim, you will likely have to show one of the following:

  • The property owner should have known that the dangerous condition existed, i.e. because a reasonable person in the property owner/employer’s position would have known about such a condition and addressed it.
  • The property owner did in fact know that the dangerous condition existed, but made no attempts to address it.
  • The property owner caused the dangerous condition.

The first element (whether a reasonable person would have known about the condition) is the one most often litigated, and the most difficult to prove. Here are some questions to ask when trying to assess the reasonable person question:

  • Did the dangerous condition exist long enough that a reasonable property owner could have/would have taken action to address it?
  • Did the property owner have a policy or procedures in place to routinely check for potential hazards or safety issues?
  • Was there a reasonable justification for the existence of the dangerous condition?
  • Could the dangerous condition be mitigated through preventative measures?
  • Was poor lighting or visibility a factor in the accident?