Archive for the ‘pain and suffering’ Category

Nevada Wrongful Death Cases – What Do They Involve?

When I was a rookie attorney, I handled my first wrongful death case. That case involved an engine part that came off a moving car and penetrated the windshield of a vehicle approaching in the opposite direction and hit a front seat passenger in the head killing her instantly.

Initially I had to do a lot of research to be able to understand what was involved with a wrongful death suit. After having initiated several of these cases, I can now state that wrongful death cases are not much different than a normal liability injury lawsuit with a few procedural exceptions.

WHO CAN FILE A WRONGFUL DEATH CLAIM?

Heirs and personal representatives can file a wrongful death lawsuit. An “heir” is anyone that can inherit from the decedent, if the decedent died without a will. This often includes the decedent’s surviving spouse or domestic partner, children, parents or brothers and sisters of the decedent. The right to file a wrongful death lawsuit is controlled by the laws of intestate succession NRS 134.030-NRS 134.210. For example, if there is a surviving spouse and children then NRS 134.040 would apply.

NRS 134.040 Surviving spouse and issue

1.If the decedent leaves a surviving spouse and only one child, or the lawful issue of one child, the estate goes one-half to the surviving spouse and one-half to the child or the issue of the child.

2.If the decedent leaves a surviving spouse and more than one child living, or a child and the lawful issue of one or more deceased children, the estate goes one-third to the surviving spouse and the remainder in equal shares to the children and the lawful issue of any deceased child by right of representation.

People who cannot file wrongful death suits are fiances, foster children, unadopted step children and unmarried partners, even if they are beneficiaries under the decedent’s will.

WHAT IS A WRONGFUL DEATH CASE?

Every person has the duty imposed by case law to abstain from injuring another person or his property.

A wrongful death case can be based upon: intentional conduct, negligence (not intentional conduct) or strict liability for ultra hazardous activities or defective products which cause a person’s death.

Therefore, a wrongful death case is a liability case that results in the death of the injured person.

Nevada’s has a wrongful death statute states as follows:

NRS 41.085 Heirs and Person representatives may maintain action.

1. As used in this section, “heir” means a person who, under the laws of this State, would be entitled to succeed to the separate property of the decedent if the decedent had died intestate. The term does not include a person wo is deemed to be a killer of the decedent pursuant to chapter 41B of NRS, and such a person shall be deemed to have predeceased the decedent as set forth in NRS 41B.330.

2. When the death of any person, whether or not a minor, is caused by the wrongful act or neglect of another, the heirs of the decedent and the personal representatives of the decedent may each maintain an action for damages against the person who caused the death, or if the wrongdoer is dead, against the wrongdoer’s personal representatives, whether the wrongdoer died before or after the death of the person injured by the wrongdoer. If any other person is responsible for the wrongful act or neglect, or if the wrongdoer is employed by another person who is responsible for the wrongdoer’s conduct, the action may be maintained against that other person, or if the other person is dead, against the other person’s personal representatives.

3. An action brought by the heirs of the decedent pursuant to subsection 2 and the cause of action of that decedent brought or maintained by the decedent’s personal representatives which arose out of the same wrongful act or neglect may be joined.

4. The heirs may prove their respective damages in the action brought pursuant to subsection 2 and the court or jury may award each person pecuniary damages for the person’s grief or sorrow, loss of probable support, companionship, society, comfort and consortium, and damages for pain, suffering or disfigurement of the decedent. The proceeds of any judgment for damages awarded under this subsection are not liable for any debt of the decedent.

5. The damages recoverable by the personal representatives of a decedent on behalf of the decedent’s estate include:

(a) Any special damages, such as medical expenses, which the decedent incurred or sustained before the decedent’s death, and funeral expenses; and

(b) Any penalties, including, but not limited to, exemplary or punitive damages, that the decedent would have recovered if the decedent had lived, bu do not include damages for pain, suffering or disfigurement of the decedent. The proceeds of any judgment for damages awarded under this subsection are liable for the debts of the decedent unless exempted by law.

The Nevada legislature passed our wrongful death statute to compensate immediate family members for specific losses resulting from the death of a close relative and to provide financial support to widows and orphans of people killed by a wrongdoer’s actions.

Various statutes of limitation may apply to wrongful death claims. Generally, if the case is not filed within two (2) years of the date of death the plaintiffs will lose the right to file an action.

COMPENSATION

An individual’s financial compensation for wrongful death can include:

  • Grief and sorrow;
  • Loss of probable support;
  • Loss of companionship, society, comfort and consortium; and
  • Pain suffering and disfigurement of the decedent.

The decedent’s estate can recover for:

  • Decedent’s medical expenses;
  • Funeral expenses; and
  • Punitive damages – for the egregious conduct of the defendant causing the decedent’s death.

PROCEDURAL EVOLUTION OF A WRONGFUL DEATH CASE

1. Obtain copies of all official reports and photographic evidence related to the accident.

2. If liability is not very clear, hire necessary experts to evaluate the liability causes of action (e.g. tire blow out case – hire an accident reconstruction expert and a tire expert).

3. In the event that no formal probate is required on the decedent’s estate, appoint a Special Administrator for the Decedent Estate and publish a Notices to Creditors as required by probate law.

4. Obtain any copies of the decedent’s medical bills and records and, if necessary, and hire a medical expert who can render opinions that the decedent’s cause of death was caused by the accident.

5. Hire an economist to render opinions on the value of claims for probable support and the value of non-economic damages for grief, sorrow, etc.

6. Submit a demand for settlement to any applicable liability insurance carrier.

7. If the case doesn’t settle, file and serve a wrongful death suit within the applicable statute of limitations.

8. If the case settles or goes to judgment and the decedent’s estate receives compensation, go back to probate and follow the required procedures to close out the decedent’s estate.

PARTING COMMENTS ON WRONGFUL DEATH

As you can see from this blog, wrongful death cases can be very expensive and time consuming. What needs to be done at the beginning of these cases is to determine how much insurance coverage is available to cover damages. Sometimes there may be multiple claimants (with each retaining separate counsel) when the decedent has a large family.

When liability insurance coverage is high, then the advance of expenses by the attorney may be justified. However, when the adverse party has limited coverage and limited assets, the decision must be made to accept or reject the minimum liability limits and pursue the individual or entity in litigation in an attempt to obtain judgment against the adverse party’s assets. There is nothing that prevents the adverse party or entity to file bankruptcy in an effort to extinguish any claim or judgment against them.
Sometimes on auto accident wrongful death cases we can accept minimum auto insurance liability limits, so that we can pursue first party coverages such as underinsured motorists coverages to provide further compensation to our clients.

The reality of wrongful death claims is that in many of these cases there is insufficient insurance to fully compensate the heirs and the decedent’s estate for their damages.

Remember that criminal charges against the adverse party causing the wrongful death are separate from civil actions for wrongful death. O.J. Simpson was acquitted of murder charges for the death of his wife Nicole Brown because the standard of proof in criminal cases is beyond a reasonable doubt. But, Nicole Brown’s family prevailed in their civil suit against Simpson where the standard of proof was the preponderance of evidence, a much lower standard.

Hopefully, this blog provided you with a better understanding of what is involved with a wrongful death case in Nevada, in the event that you have the misfortune to be directly affected by one.

Hot Coffee and Tort “Reform”

A few weeks ago, I was preparing jury voir dire questions for a short trial. Some of the questions that I prepared involved various issues of tort “reform” and other items currently in the media that dealt with negative events involving personal injury lawyers. One area that always has to be covered is the McDonald’s hot coffee case, because most potential jurors have been indoctrinated to believe that this case sets the standard for a frivolous lawsuit.

Recently, I viewed the HBO special- “Hot Coffee”.  This special starts off  by reviewing the details of the McDonald’s case.  If you have the impression that this was as frivolous suit, you should watch this one and one-half  hour special.  Stella Liebeck’s legs were scalded by coffee that was about the temperature of  the water in a car radiator (180-190 degrees).  This temperature is capable of causing third degree burns requiring skin grafting.  Ms.  Liebeck wasn’t the only one that was injured by this McDonald’s coffee. There were over 700 burn cases reported, because their holding temperature for coffee was so high.

The unanimous  jury found Ms. Liebeck to be 20% at fault and McDonald’s 80% at fault for the burns she sustained to her legs from the hot coffee.  The jury awarded Ms Liebeck $160,000.00 in compensatory damages and $2.7 million in punitive damages.  The purpose of punitive damages is to change behavior brought about by egregious conduct. The presiding judge reduced the total punitive damage award to $480,000.00.

The media picked up on the hot coffee case and made it the flashpoint for tort “reform”, which is an attempt to block civil lawsuits and the public’s right to get into court. The media never mentions that there are legal procedures in place that block any frivolous case from ever getting to trial. Nor do they attempt to provide the actual facts of the case.

After this case, big business, insurance companies, pharmaceutical companies, asbestos companies, oil companies, tobacco companies, health insurance companies and companies that insure doctors, tried to pass federal tort “reform” legislation. They banded together under an organization known as the U.S. Chamber of Commerce, which has its headquarters in Washington, DC.  This appears to be an agency of our federal government. It is not. Obviously, the U.S. Chamber of Commerce has  strong financial backing.  Carl Love and George Bush Jr. became the proponents of tort “reform.”  They advocated caps on compensatory, special, and punitive damages.  They preached  that frivolous malpractice suits were going to put our doctors out of business.

Bill Clinton vetoed federal tort “reform” legislation.

One of the purposes of tort law is to promote safety.  In order to do that, you have to hold entities that sell products and services accountable.  If we don’t, then those injured by the negligence of these companies must  look to state programs such as Medicaid to pay for support and medical care necessitated by their injuries.

Once the Chamber of Commerce was blocked from passing national tort “reform”, they centered their campaign  on providing financial support to elect candidates for the state courts that would be pro business and pro tort “reform.”  As a result of this state by state campaign, judges were put into place who were in favor of placing caps on punitive damages as well as caps on non-economic damages for pain and suffering, and even limitations on the recovery of medical expenses paid by insurance (Collateral source rule).

All of this was accomplished by taking snippets of information from cases where people were injured and using these negative aspects of these cases to make them look bad in the eyes of the public. All cases have some negative aspects.  In our state of  Nevada the aftermath of this tort “reform” campaign resulted in a $250,000.00 cap on non-economic damages on medical malpractice cases, a one-year statute of limitations, and restrictions on recovery of damages for medical bills that were  paid by insurance, obviating the collateral source rule on med-mal cases.  Some states have adopted caps on punitive damage, and other states have caps on the non-economic and/or entire amount of damages that a jury can award.

The bottom line is that our civil justice system needs tort law to maintain a civilized society and to pass the cost of damages caused by profitable injury producing products back to the manufacturers and companies that cause injuries to our friends and family.  This promotes safety in our society and protects the public from dangerous services and products.  The criminal justice system, to a certain extent, makes for a more civilized society, but it can’t control non-criminal conduct.  That’s where the civil justice system picks up.  Without access to the courts on tort cases, the public would be picking up the tab for damages caused by entities that should be held accountable for their actions.

CHECKLIST: Did I Do Anything That Devalued My Recovery on My Auto Accident Claim?

If you think that you are not getting enough compensation on your auto accident, ask yourself if you did any of the following things that could have possibly devalued your case or claim. Check the ones that apply to your case or claim.
___1.  Failure to seek immediate medical attention.
___2.  Delaying the treatment for your symptoms because you thought they would get better.
___3.  Failure to summon law enforcement to the accident scene.
___4.  Failure to file a station report of accident and/or SR1 form with DMV if law enforcement did not come to the scene    of the accident.
___5.  Telling law enforcement and paramedics that you are fine, when you are nervous, shaking, confused and disoriented following your accident.
___6.  Failure to record adequate identity, insurance and vehicle information on the adverse driver and vehicle.
___7.  Failure to take accident scene photos.
___8.  Failure to obtain witness information.
___9.  Failure to take visible injury photographs.
__10.  Movement of vehicles before police arrived (unless safety issues were present).
__11.  Delay in retaining counsel.
__12.  Failure to record information on vehicle movement and body position at time of impact on a minor property damage accident.
__13.  Giving a recorded statement to the adverse carrier stating that you were not injured and your symptoms developed after that.
__14.  Failure to give your attorney an accurate prior accident history.
___15.  Failure to give your doctor an accurate medical and accident and injury history.
___16.  Failure to go for recommended medical treatment and medical follow-up.
___17.  Missing doctors appointments without a good reason and/or not calling to cancel your appointment.
___18.  Failure to obtain a doctor’s excuse for missed work, even if not required by your employer.
___19.  Failure to tell your employer that your were involved in an accident.
___20.  Not keeping a record on days/hours of that you missed work.
___21.  Failure to report initial minor symptoms to your doctor and reporting them weeks or months later, when they become worse.
___22.  Arguing with defense counsel in deposition, arbitration, or trial.
___23.  Failure to obtain medical treatment for symptoms you are experiencing after discharge from doctor.
___24.  Telling the doctor that you are fully recovered so that you can get discharged from treatment.
___25.  Failure to give an accurate explanation to your doctor of any aggravation of a pre-existing condition.
___26.  Not giving adequate time and attention to the completion written discovery.
___27.  Not reviewing documentation on your case prior to deposition, arbitration or trial.
___28.  A prior accident was revealed during your deposition or arbitration or trial that you didn’t tell anyone about.
___29.  Not taking medication as prescribed.
___30.  Not advising your attorney of new medical treatment or diagnostic tests.
___31.  Not responding to your attorney’s telephone calls and faxes.
___32.  Delay in responding to your attorney’s requests for communication.
___33.  Allowing your emergent bills to go into collections because you didn’t pay your deductibles.
___34.  Lengthy therapy without referral to a doctor to verify the medical necessity of this treatment.
___35.  Obtaining treatment from providers who are unfamiliar with auto accident cases.
___36.  Failure to tell your healthcare providers how the  injuries are affecting your daily activities.
___37.  Failure to tell your doctor that your injuries are affecting your ability to sleep.
Most insurance companies will use computer programs to evaluate your auto accident claims. These programs consider the aforementioned factors to reduce the value of your auto accident claim.
HOW DID YOU SCORE?

7 or less checkmarks – minor reduction in value
8 to 15 checkmarks   – moderate reduction in value
16-20 checkmarks     – major reduction in value
over 20 checkmarks   – you probably received only a nominal offer or no offer on your claim

The Impact of Social Networking Sites on Personal Injury Claims

As a personal injury lawyer, I have seen how trends in personal injury claims handling and litigation have changed over the years.  In this electronic age, information and documents posted on social networks like Twitter, Facebook, and Myspace can potentially have a negative impact on personal injury claims.

Insurance Companies and defense attorneys are using these sites as a source to obtain damaging information about victims of personal injury accidents in their fight against compensating those victims for the personal injuries caused by their insureds.

If a person is involved in an automobile accident, he is likely to post some information concerning the accident, the injuries caused by the accident and how the injuries affected his life on a social networking site.  Insurance companies may find on these posts information that is favorable to them regarding how the accident happened, and/or they may find  information favorable to them concerning the development of injuries after an accident.  The more times that a story is told, the more likely that there will be inconsistencies.  Information posted on social networking sites may contradict subsequent accident and injury  reporting to insurance companies and to health care providers.  If contradictory information is obtained by an insurance company, this will certainly undermine the credibility of a personal injury claimant, and devalue his claim.

Credibility is an important factor to juries when they are asked to make decisions concerning an accident causing non-visible neck and back injuries. The general public has been well indoctrinated by insurance companies to get them to believe that all whiplash injuries are fraudulent.  A personal injury claimant’s credibility before a jury can be negatively impacted by photos and video of the claimant participating in physical or athletic activities after an accident. Any content that could portray a claimant in negative light should be taken off social media sites. The claimant should also have online friends refrain from posting this type of pictorial documentation from their own sites.

Posted information regarding illegal or immoral matters can be utilized by insurance companies and/or defense attorneys to put a personal injury claimant in a bad light and damage his character. A claimant must be very careful concerning what he posts. Google yourself to determine what content exists  that may compromise your claim. Think before your post, even on invitation-only sites. Don’t let anyone you don’t know become a friend after you make an accident claim.

Pictures or video of claimants riding motorcycles, motor boats, skateboards, bicycles or all terrain vehicles can undermine the value of their lawsuit or insurance claims Inflatables.

The same guidelines should apply to the content of your e-mail accounts.

If you belong to 5 networks and have 100 friends on each network, potentially hundreds of thousands of people can view your posts; and, your posts may not be protected by privacy laws.

So,  personal injury claimants and litigants need to give sone thought to cleaning  up their social media pages after involvement in an injury producing accident.


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