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Legal Tips
Slip and Fall
Slip and fall or trip and fall are the generic terms for
injuries that occur as a result of dangerous or hazardous
conditions on someone else's property.
What make someone responsible for a slip and fall case?
Property owners are responsible for injuries that occur as a
result of dangerous conditions on their property, which the
owner created, knew about or should have known about. The hazard
may be obvious (such as a broken stair) or hidden (like a hole
under the carpet).
In general, an owner will be considered to have knowledge of a
dangerous or hazardous condition if it is permanent. In case of
temporary conditions, the length of time that the condition
existed before the accident occurred has legal significance. For
example, the discoloration of a piece of fruit on the floor, in
the produce department of a grocery store, may be used to prove
the length of time that the hazardous condition (piece of fruit)
was on the floor.
What should someone do after they slip and fall?
Inspect the area where you fell. Attempt to understand what
caused you to fall. If you are unable to explain what caused you
to fall will usually mean that you do not have a case. If there
are witnesses, be sure to write down their name and the address.
If the incident occurred in a business, be sure to speak with
the manager on duty. Have that manager fill out an accident
report and be sure to have a copy made for your records. If an
employee or a supervisor suggests, or admits, that this type of
incident has occurred in the past, make a note of that and write
that persons name on the copy of your report. Also, be sure to
make note of the date that the accident on occurred.
You should also be aware that what caused you to fall may be
repaired after your incident therefore you should keep record of
the condition via picture or video.
What should I do about my Injuries resulting from my fall?
Get Medical Help:
When needed, it is important that you receive medical assistance
immediately. If you think you may be OK but begin to experience
pain or discomfort, follow up with medical care. There are no
prizes for being a hero. It will be quite difficult to assert a
claim for injuries and pain and suffering without proper medical
documentation. Since the insurance for the party at fault may
pay your medical bills, you are not restricted by your health
plans list of doctors.
Days following the accident you may begin to experience symptoms
that were not present immediately after the accident. Symptoms
may arise even following a minor slip and fall. Some of the
common symptoms are:
- Headaches
- Neck and back stiffness and pain
Most people who are suffering from "soft tissue" injuries seem
to find that some form of treatment or physical therapy works
best. Clients often seek care from a Chiropractor or Physical
Therapist.
Clients suffering from more serious injuries are usually seen in
the emergency room. Often times persons will next be seen by an
Orthopedic surgeon, Neurosurgeon or a Neurologist. However, each
case and injury is unique and may need other specialist to
evaluate and treat your condition. You may also want to consider
getting a second opinion.
How long do I have to file a claim?
Every state has a "statute of limitations" which limits the time
you have to act. Some states require you to give notice to the
landowners within 30-90 days of the incident. Also, there may be
certain limitations or immunities if the landowner is a
governmental agency or your employer. Be sure to check with an
attorney in the state where you fell for the proper "statute of
limitations" and any other issues you need addressed to protect
your claim.
Medical Malpractice
Medical malpractice claims are among the most difficult and
expensive of all types of personal injury cases. Almost all
malpractice claims against health care providers require expert
testimony by physicians, nurses or other professionals in the
same specialty as the defendant. There are many important issues
that are taken into consideration in a medical malpractice case.
Do I have a case?
How long do I have to decide whether to file a lawsuit?
Can the hospital be sued if the doctor is an independent
contractor at the hospital?
What is needed to file a malpractice case?
Do I have to pay back my health, workers’ compensation and
disability insurance out of the settlement of my medical
malpractice case?
Are doctors who work for a public hospital protected by
governmental immunities?
What is "informed consent"?
Do I have a case?
There are primarily two things that need to be proven in a
medical malpractice case:
That the health care provider was negligent. This means that the
provider deviated from the normal standard of care for that
particular type of medical provider, which includes hospitals,
medical doctors, osteopaths, chiropractors, and most other types
of health care professionals.
That the damages were "proximately" caused by the malpractice.
Unlike a simple accident case, in which the accident causes the
injuries, most plaintiffs are already injured or ill at the time
they are victimized by medical malpractice. In addition,
causation must be proved to a reasonable degree of medical
probability, meaning that simply the possibility or conjecture
of malpractice is generally not sufficient. It must be shown
that as a result of the alleged malpractice, the patient
sustained some injury or aggravation of an existing condition.
For example, if a patient visits the doctor for an annual
checkup and is deemed healthy, but a month later is found to
have terminal liver cancer, the patient doesn’t have a
malpractice case because the doctor’s negligence didn’t result
in the patient’s injury or condition. It was there anyway, and
detection a month earlier probably would not have made a
difference.
How long do I have to decide whether to file a lawsuit?
Any action for personal injury or death against a physician or
hospital must be filed within two years from the date the
claimant (the person named in the lawsuit) knew or reasonably
should have known of the injury.
In no instance may a claimant bring an action more than four
years after the date on which the alleged act or omission
occurred.
If the claimant was younger than 8 years old when the cause of
action occurred, the period for filing suit is eight years from
the date of the alleged negligence. In no event may a lawsuit be
filed after the minor claimant's 22nd birthday.
If the claimant is mentally incompetent, the period of
limitations does not begin until the disability is removed.
Wrongful death actions are also governed by a two-year statute
of limitations that begins at the time of death.
There can be no action for wrongful death if the malpractice
statute of limitations on the deceased’s injury had expired
before he died.
The Act reduces the limitations period in actions brought
against a local entity or its employees to one year from the
date the injury was received or the cause of action occurred.
Can the hospital be sued if the doctor is an independent
contractor at the hospital?
A hospital is liable for the acts of an independent contractor
physician if:
The hospital publicly withholds that the physician is its agent
or employee;
The hospital acquiesces in the physician's negligent conduct;
and
The plaintiff reasonably relied upon the acts of the hospital.
In Gilbert v. Sycamore Municipal Hospital, 156 I11. 2d 511, 622
N.E.2d 788 (1993, the court held that the element of justifiable
reliance is satisfied if the plaintiff relies on the hospital,
rather than a specific physician, to provide complete emergency
care.
What is needed to file a malpractice case?
Under Illinois law the injured person's attorney is required to
attach to the complaint an affidavit from a medical professional
who practices in the same area as the medical provider being
sued.
The injured person must have consulted with an expert who
practiced or taught within the last six years in the same area
of medicine that is at issue;
The expert must be qualified by experience or demonstrated
competence in the subject of the case; and
The expert must state in a written report, after a review of the
medical record and other relevant material, that there is a
reasonable and meritorious cause for the filing of such action.
Do I have to pay back my health, workers’ compensation and
disability insurance out of the settlement of my medical
malpractice case?
Illinois has adopted a "modified collateral source rule"
applicable to medical malpractice cases only. If the losing
medical provider applies within 30 days after judgment, the
award against the medical provider will be reduced by the
following amounts:
50% of the lost wages or disability income paid or payable to
the claimant in relation to the injury by another person,
corporation, or insurance company;
100% of the medical, hospital, and nursing charges paid or
payable to the claimant in relation to the injury by another
person, corporation, or insurance company
The reduction of a claimant's recovery by collateral source
payments, however, is limited by the following rules:
There can be no reduction for amounts paid by person with a
right of subrogation against the judgment
The judgment may not reduced by more than 50%
The damages awarded must then be increased by insurance premiums
or direct cost paid by the claimant
There is no negligent act or omission of the defendant
Are doctors who work for a public hospital protected by
governmental immunities?
Medical negligence claims against physicians employed at state
medical facilities are not considered to arise from their
employment, but from their individual duties to their patients.
Such actions are not subject to governmental immunity and may be
brought in the Circuit Court.
The Act reduces the limitations period in actions brought
against a local entity or its employees to one year from the
date the injury was received or the cause of action accrued.
What is "informed consent"?
The doctrine of informed consent is a unique area of malpractice
litigation. It does not follow strict negligence principles, in
that the plaintiff need not show that the health care provider
was negligent in failing to obtain his/her consent to treatment.
The law grants to the patient the right to choose whether to
obtain medical treatment and requires that a health care
practitioner provide the patient with accurate information as to
diagnosis and treatment. Failure to provide that information is
a violation of the patient’s rights and can substantiate a
malpractice claim.
Automobile Accidents
Here are some tips to keep in mind if you’ve been in an
accident.
Make a police report
Get medical help
Paying your medical bills
Repairing your car
Renting a car
Giving a statement to the party-at-fault’s insurance
Contact your insurance company
Lost wages
Do I need an attorney?
What settlement can I expect?
Make a police report
Accident information should be documented for the insurance
company and your attorney. If the accident involves a
hit-and-run driver, most policies require a police report.
Additionally, without a police report it can be difficult later
to identify the responsible parties, witnesses, date of accident
and locations.
Get medical help:
When needed, it is important that you and your passenger receive
medical assistance immediately. If you think you may be OK but
begin to experience pain or discomfort, follow up with medical
care. It will be quite difficult to assert a claim for injuries
and pain and suffering without proper medical documentation.
Since the insurance for the party-at-fault is responsible for
paying pay your medical bills, you are not restricted by your
health plan’s list of doctors.
In the days following the accident you may begin to experience
symptoms that were not present immediately after the accident.
Even after a low-impact collision, symptoms such as headaches or
neck and back stiffness and pain may arise.
Most people who suffer "soft tissue" injuries seem to find that
some form of treatment or physical therapy works best. Clients
often seek care from a chiropractor or physical therapist.
Clients who are more seriously injured are usually taken to the
emergency room and often are seen by an orthopedic surgeon,
neurosurgeon or neurologist. However, each case and injury is
unique, and it may be necessary for other specialists to
evaluate and treat your condition. You may also want to consider
getting a second opinion.
Paying your medical bills:
When available, it is best to use your own health insurance to
pay your bills. Most health insurance companies have discount
arrangements with doctors and hospitals, so at the end of your
case you will be reimbursing your insurance for a smaller
amount.
The party-at-fault is responsible for your medical bills and
pain and suffering at the time of settlement. If the person who
causes the accident does not have insurance, your own automobile
insurance will also pay for your pain and suffering under
uninsured motorist coverage. You can also have your own auto
insurance company pay your medical bills, up to your limits of
medical pay coverage, regardless of fault.
Repairing your car:
You will normally have two options for payment of your car
repairs. Below are some of the issues involved in each:
Question Your Own Insurance Party-at-Fault Insurance
Do I have to pay a deductible?
Yes No
Will the insurance company pay 100% of the repair bill?
Yes Not if they feel you were partially at fault
Which way is quicker to get the repairs made?
Depends on quality of insurance Depends on quality of insurance
Do I have to go to their body shop
Depends on what your policy reads No
What type of coverage pays for my repairs?
Collision coverage Property damage
Does it matter who is at fault?
No Yes. They will only make payments if their insured was at
fault
Renting a car:
If you have rental car coverage, you may rent a car and have it
paid by your own insurance. Be sure to talk to your agent first
to find out the daily allowance and any other restrictions. If
the other driver was at fault, you have the right to rent a car
while your car is being repaired or replaced. In this case, the
liable party’s insurance is responsible for payment. However,
payment may not occur until a future settlement of all claims.
Giving a statement to the party-at-fault’s insurance:
As a general rule, do not give a statement to the insurance
company representing the party-at-fault unless your attorney is
present. That insurance company is responsible for damages to
your car, your medical bills and any lost wages, as well as pain
and suffering. If your case isn’t settled and a lawsuit is
filed, the insurance company will use your statement during the
taking of your deposition for purposes of impeachment.
Contact your insurance company:
You must notify your insurance company that you were in an
accident. Normally, you have 30 days to make this notification.
If you fail to notify your insurance within the required time
period they have the right to refuse to pay for any of your
damages or to defend you if the other party were to sue you
later. Also, your insurance company has the right to obtain a
statement of facts from you.
Lost wages:
The party-at-fault is responsible for your loss of income caused
by the accident. This is in addition to your pain and suffering
and any other losses that you may have sustained. However,
missing work must be directly related to the injury and/or
accident. If the party-at-fault has no insurance, then your own
insurance will pay for your loss of income through uninsured
motorist coverage.
Do I need an attorney?:
Insurance companies will try to convince you that you do not
need an attorney, and that they will be fair with you. A study
by the Insurance Research Council found that persons represented
by an attorney received settlements on average of over $14,000,
while persons without an attorney received settlements of under
$4,000.
Even though the law does not require that you have an attorney,
handling a case on your own is quite risky, since you probably
lack the experience in evaluating the nature and extent of your
injuries and the amount of settlement you should receive. It is
not uncommon for persons representing themselves to have a
"figure" in their mind as to what they feel their case is worth.
For example, you may want $15,000 for your injury, and if the
insurance company offered you $20,000 you would accept.
Unfortunately your case may be worth $65,000, and you would not
know this without proper legal representation.
If you do decide to hire an attorney, it is recommended that you
seek an attorney that concentrates in personal injury claims.
What settlement can I expect?:
Your settlement with the insurance company should include
payment for pain and suffering, lost wages, property damage, all
medical bills (present and future), and any other losses you may
have suffered from this accident. The amount of pain and
suffering is unique to each case and usually will be the largest
portion of your claim.
Steps You Should Take After Car or Motorcycle Accidents Have
Occurred
The moments immediately after car accidents and motorcycle
accidents require clear, rational thinking to protect yourself
and your personal property. There are several steps you can take
to increase your chances of financial recovery and the amount of
that recovery in your car accident and motorcycle accident case,
even before you meet with one of our attorneys. Such steps include:
- Insist that a report for car or motorcycle accidents be filed
with the state or local police.
- Document as much as you can about the car or motorcycle accident
or injury itself. Our attorneys
will need to know every detail about your injuries and any other
losses (such as wages) you have suffered as a result of the
accident and any conversation you had with anyone involved in
the accident.
- Talk to no one about the car or motorcycle accident or injuries
other than your doctor or attorney, especially not an insurance
adjuster. Our car accident and motorcycle accident attorneys in
Miami, Florida will be happy to assist you.
- Photograph the accident scene, including all vehicles involved
(before repairing) and any visible injuries.
- Take the names of anyone who witnessed the car or motorcycle
accident and who might be able to help you prove your case.
- Seek medical attention and tell your physician or surgeon
exactly how the injury occurred and describe all symptoms and
complaints. Be sure to report memory problems, confusion or
disorientation, however minor these things may seem at the time.
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