Making a Claim for Unsafe Products

Posted by on Oct 19, 2014 in Uncategorized | 1 comment

Just because you suffered serious injury from using a product doesn’t mean that you are eligible in Massachusetts to make a claim that the product was unsafe. In order to be valid, the claim must include certain elements, as Massachusetts personal injury lawyers you may consult with will explain.

First of all, you have to prove that there was an actual injury or financial loss because of the product. A near-miss does not count, even though the product was clearly dangerous or defective. For example, a brand-new ladder collapses just as you reach the window you are intending to wash. You manage to grab the sill and climb to safety. In this case you have no claim, although you can certainly report the incident to Consumer Product Safety Commission (CPSC).

Next, you need to show evidence that the product is defective in either the way it was made (manufacturing error) or the way it was designed (design defect). It can be easy or difficult, depending on the product. A product liability lawyer would know what expert to consult to determine if the product was defective or not if it is not easily apparent i.e. the ladder broke. It will also help a case immensely if there was no warning about the risks of using the product which may not have been obvious to the consumer, such as a load limit.

Once you have determined that the product is defective, the next thing you need to prove is that the product was the proximate (or main) cause of the injury. If in the example above, you fell down when the ladder collapsed and got a skull fracture, then you have a case. If you tripped on the ladder before ever getting on it and got a skull fracture when it fell on your head, then you don’t.

Which brings us to the last element you need for a valid product liability case: using the product as intended. If your injury occurred while you were using the product correctly and for the intended purpose, you may have a case. For example, in the example above, if the ladder was clearly labeled with a load limit of 350 lb and you climbed on it anyway knowing you weighed 450 lb, you were not using the ladder as it was intended for, which is for loads up to 350 lb.

If your case satisfies all the required elements, then you probably have a valid case. If you haven’t yet, consult with a product liability lawyer to help you.

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The Risk of Cancer Due to Power Morcellators

Posted by on Sep 1, 2014 in Uncategorized | 1 comment

According to the National Institutes of Health, about a third of women in the United States will undergo a hysterectomy before she turns 60. Hysterectomy, a medical procedure wherein the uterus (or the womb) is removed, is done for a variety of reasons:

  • To reduce chronic pelvic pain and uncontrollable vaginal bleeding
  • To remove uterine fibroids (or myomas), which are benign tumors that grow in the uterus
  • To treat infections and different types of cancer (cervical cancer, ovarian cancer or uterine cancer)
  • To treat uterine prolapse, a condition wherein the womb or the uterus slips out of the cervix, falling halfway into the birth canal or vagina
  • Treatment of other conditions, including endometriosis, adenomyosis and pelvic inflammatory diseases

The traditional way of performing hysterectomy is through open surgery, which requires an incision in the abdomen, about five to seven inches long (also called Abdominal Hysterectomy). The modern way, and which more doctors prefer due to its many advantages, is laparoscopic hysterectomy, which necessitates only 0.5-1cm incisions and, therefore, much faster to heal, is easier and faster to perform, less bloody, less painful and reduces chances of infection.

Laparoscopic surgeries make use of a small camera, called a laparoscope, which guides the removal of the uterus, and a power morcellator, a device capable of cutting an oversized uterus and fibroids into small pieces to allow these to be removed through the tiny incisions.

During the early part of 2014, medical reports on the spread of uterine sarcoma, an undetected cancerous tissue in women with uterine fibroids, due to the use of a power morcellator surfaced. This harm that put women’s health and life at risk made the US Food and Drug Administration issue a safety alert on April 17, 2014, to discourage doctors from further using power morcellators in uterus removal (hysterectomy) or uterine fibroids removal (myomectomy) due to the risk cancer development.

Every year, about 50,000 women are treated with a power morcellator during a laparoscopic surgery. Though there is a slim chance that a woman, who has fibroids, can also have the hard-to-detect cancer-causing uterine sarcoma (1 in 350 women according to FDA estimate), the benefits provided by power morcellators still cannot outweigh the risks they can cause.

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Personal Injury – Amusement Park Accidents

Posted by on May 7, 2014 in Uncategorized | 1 comment

People looking for thrills and adventure need not go to distant and dangerous places or even hundreds of feet above the ground. They have theme parks around them where the thrill and excitement may be higher and much more, they can experience all the fun with their family and friends.

Theme and amusement parks are always great destinations due to the attractions and never ending surprises these allow everyone to experience. Who, for instance, would not want to experience the heart-stopping, yet exhilarating, roller coaster ride? The fact, however, that the many rides and the equipment operated in amusement and theme parks are not subject to federal safety regulations (for there is actually none in existence, at least with concern to rides that are fixed to a site permanently), anyone, then, can question the actual safety of these.

Most of the reported causes of amusement park accidents are also identified as recurring problems, a manifestation of a failure or negligence on the part of people whose responsibility includes maintenance of rides, machines and equipment. Some of the most common effects of this failure and act of negligence include brake malfunction, collision with others who are on the ride, getting stuck due to ride malfunction, ride ejection, restraint system failure, structural failure, falls from rides, failure of safety nets and failure to use a safety net. Though the U.S. Consumer Product Safety Commission, the agency responsible for tracking amusement ride accidents statistics, believes that many injuries or deaths happen during amusement park accidents due to negligence on the part of the park owners and operators, there are also instances when the guests, themselves, are the ones guilty of violating the park’s safety policies. Whatever the cause of the personal injury, though, the liability is on the part of the park’s management which will, then, be required by the law to compensate the victims for the injuries sustained.

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No Sinecure for Workplace Injuries

Posted by on Mar 25, 2014 in Uncategorized | 0 comments

All employers are required by law to purchase workers’ compensation insurance for their employees, unless the employer is exempt in a particular jurisdiction. This can happen if the employer can show capacity to finance compensation for any injured worker without the assistance of an insurance company.

For non-exempt businesses, workers’ compensation insurance is there to relieve both the employer and employee from the legal issues associated with assigning fault for any injury. For example, if a construction worker gets injured from a fall at the worksite and is unable to work for some time, the cause will have to be determined to find out if the injury is due to employer negligence i.e. defective ladder or employee action i.e. horsing around before compensation is forthcoming. With workers’ compensation insurance, the insurer is not concerned with fault, but only if the accident occurred in the commission of the employee’s job.

In theory, this should make it easier for the worker to get financial assistance for any medical treatment as well as wage replacement for lost days of work associated with the injury. But between an employer who would like to keep premiums low by minimizing claims and an insurance company that makes it a practice to deny claims, making a workers’ comp claim may be more difficult than expected.

According to the website of Williams Kherkher, workers’ compensation insurance covers not only “active” injuries such as those from a fall, but also passive damages such as repetitive motion injuries.  The insurer will question whether the injury is actually work-related, especially for passive injuries which develops gradually and has no external manifestation. It is often necessary for the claimant to provide copious documentation to prove the cause of the injury.

Making a workers’ compensation claim can be a walk in the park, but in most cases it is more of a battle zone.

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Wrongful Death of a Minor Child

Posted by on Mar 21, 2014 in Uncategorized | 0 comments

The unnecessary death of a minor child is perhaps the biggest tragedy of all, pulling at the heart strings of even perfect strangers. It would be difficult if not impossible to imagine what the parents are feeling when the wrongful death of their minor child occurs.

Wrongful death is defined as the loss of life of an individual due to the negligent or willful action of another party. This may take the form of dangerous products, birth injuries, drowning, fires, or failure to supervise. A wrongful death lawsuit is a civil proceeding, but it may be filed alongside a criminal charge if the circumstances warrant it.

Purpose of a wrongful death suit

When a wrongful death action is filed, the end being pursued is monetary consideration rather than physical incarceration, as is the case with a criminal prosecution. The civil action is meant to compensate the decedent’s surviving family for the loss and as punishment for the responsible party. In general, calculating the appropriate awards depends on several factors, including the age of the wrongful death victim.

The Value of Youth

As a people, we value youth because of its potential. But when it comes to tort law, youth is not such a good thing. When an adult dies, it is much easier to quantify the economic damages resulting from death based on actual rather than speculative income.  When a minor dies, pecuniary damages will be calculated taking into consideration the expected life span, health, and earning potential. In some states, the jury is directed to also consider the grief of the parent and loss of consortium of the child.  Historically, award damages for the death of a minor child are quite small.

The death of a fetus, on the other hand, is not even actionable in most jurisdictions, although this is not true in Oklahoma, unless the fetal death is as a result of an abortion, diagnostic treatment, or therapy. According to the website of the Abel Law Firm, you may have legal recourse to get compensation for the loss of your unborn child.

If you are a parent whose child died because of the negligence of another party, you need to engage the services of an experienced wrongful death attorney in the jurisdiction. Even if the award may be small, the responsible party must still be made accountable.

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Probable Cause for DUI Charges

Posted by on Mar 14, 2014 in Uncategorized | 2 comments

Drunk driving laws in general require that the arresting officer has probable cause for requiring a defendant to take a field sobriety or blood test, even if the results of those tests confirm intoxication. Probable cause is actual evidence, visual or otherwise, that a crime has been or is in the process of being committed.

In a case of driving under the influence of alcohol or illegal drugs (DUI), probable cause may be in the form of the smell of alcohol on the defendant or erratic behavior that suggests intoxication. With probable cause, the arresting officer can then require a driver to submit to confirmation tests without a warrant.

A car accident constitutes an automatic probable cause for a sobriety test for all parties involved. If an individual proves to have a blood alcohol content (BAC) above the legal limit in that jurisdiction, DUI charges may be legally upheld.  A DUI defendant who causes a car accident may face more stringent sanctions if convicted than if merely charged with a DUI.

The issue of probable cause is important as a criminal defense for DUI or driving while intoxicated (DWI) because there is a tendency for law enforcement particularly in Texas to jump the gun in arresting suspected impaired drivers. This overzealous behavior of police officers is due to increasing pressure on them to crack down on drunk driving incidents.

This can have unfortunate consequences for the defendant; mere suspicion DUI or DWI can be enough to ruin one’s reputation.  If it can be demonstrated that there was no probable cause for the test, then the case may be dismissed pre-trial. This makes it crucial to mount an effective defense using the help of a Dallas criminal attorney who is well-versed in the DWI laws in the jurisdiction. This specific knowledge can be crucial in giving the lawyer an edge in his or her case planning.

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The Rationale behind Legal Separation

Posted by on Mar 8, 2014 in Uncategorized | 1 comment

In these days of no fault divorces or simply living apart without changing the legal status quo, filing for a legal separation may seem to be an unnecessary expense. There are processes that need to followed to make a separation, well, legal, and that always means money will change hands if only for the filing fee for the simplest of marriages with no property and no kids. If it is going to end up in divorce or reconciliation anyway, why bother with a legal separation?

Legal separation is more than a formality. It can be used to stabilize the important aspects of a marriage in trouble, which is why it already addresses issues such as child support, child custody and visitation, and property division. In most cases, a separation is in the nature of a trial, where the couple takes the time away from each other to decide whether to get a divorce or not. But there is no telling when the separation will finally end in divorce or reconciliation, or if it will end at all. It is perfectly possible for a couple to simply stay legally separated instead of suing for divorce if the issue of remarriage to another person is not in the cards for either spouse.

As pointed out on the website of the Law Office of Kirker Davis, LLP in Austin, even if the marriage is on the rocks, life goes on, money comes in, retirement and pension plans slowly mature, insurance policies take effect, and property gets bought and sold. Without a legal separation agreement establishing the parameters at least of conjugal property, it can be a big mess when the spouses finally decide to divorce or for estate planning when one spouse dies. If a separation is likely to last for more than a few months, it would just make better financial sense to cover the legal bases.

Because legal separation is for all practical purposes a divorce without the final decree, it can be complicated. Both spouses still need the services of a competent divorce or family law attorney to facilitate smooth sailing.

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Expedited Social Security Disability Benefits Processing for Veterans

Posted by on Mar 3, 2014 in Uncategorized | 4 comments

Starting on March 17, 2014, applications for Social Security disability benefits by veterans who are receiving 100% compensation for permanent and total (P&T) disability from the Veteran’s Administration (VA) will be prioritized. This means that disabled veterans can start receiving benefits from the Social Security disability program earlier than usual, together with automatic Medicare coverage. For wounded soldiers returning from the battlefield, this is a glimmer of hope for their futures.

The VA and Social Security Administration (SSA) both accommodate applications by disabled veterans for benefits, and they are not mutually exclusive. According to the website of the Jeff Sampson law firm, this means that a veteran receiving disability benefits from one agency does not disqualify him or her from applying for benefits from the other. If the disability occurred while on active duty, there may even free health care. However, veterans with a VA compensation rating of 100% P&T disability does not automatically qualify them under the disability criteria of the SSA. The only guarantee the SSA gives applicant veterans with this rating is that their application will be processed faster.

In order for veterans rated 100% P&T to qualify for Social Security disability benefits, the SSA checks if the applicant is unable to do the work they did before the disability and that the existing medical condition precludes any other gainful employment for at least 12 months.  The processing time will depend on the nature of the disability, comprehensiveness of the medical records submitted, and if it will be necessary for the applicant to undergo a medical examination.

This may sound simple enough, but the fact is despite faster processing, the batting average of successful SSDI applicants is less than 35% for the initial application, even in states that are considered “good” to apply in. In Illinois, for example, less than 30% of all initial applications are approved. For a better chance of getting an expedited approval, request the assistance of an accredited SSA or VA lawyer in preparing the documents for your initial application.

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