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Challenges in Bringing a Wrongful Death Suit

A wrongful death claim is a civil lawsuit filed against a person or entity who wrongfully caused someone’s death. The goal is to seek compensation for the survivor’s loss of a family member. Wrongful death suits can be complicated and require a lot of proof that the survivor is entitled to compensation. Below are some of the most common challenges in bringing a wrongful death suit. Has a Wrongful Death Occurred? The first challenge is to establish that the death was wrongful. “Wrongful” in this context usually means recklessly, or negligently, but it can also include intentional criminal acts such as murder. Some of the most common wrongful death causes are: ·   Automobile and Motorcycle Accidents ·   Medical Malpractice ·   Faulty Manufacturing ·   Criminal Acts ·   Elder Abuse Who Can Bring Forth the Lawsuit? Who can and cannot bring forth a wrongful death suit is the next challenge to overcome. The deceased cannot bring forth the lawsuit themselves, so it is often filed on their behalf by their estate, or by immediate family members who have been directly impacted by the wrongful death. Who qualifies to bring a wrongful death suit varies in each state, but in general, wrongful death claims can be brought by: ·   Immediate Family Members, including children and parents ·   Distant Family Members (if there are not immediate family members), including grandparents, siblings, aunts/uncles. ·   The Surviving Spouse ·   Personal Representative of the deceased’s Estate Proving Negligence Typically, in a wrongful death case, the Plaintiff, the party who files the claim, must prove the 4 main elements of negligence. 1. Duty of Care. The Plaintiff must prove the Defendant had a duty of care to the deceased person. 2. Breach of Duty of Care. The Plaintiff must prove the Defendant breached that duty of care as evidenced by their actions, or lack of actions. 3. Causation. The Plaintiff must prove the Defendant’s breach of duty directly or proportionately caused the wrongful death. 4. Damages. The Plaintiff must prove the wrongful death caused the damages that the estate or family members are now seeking to be compensated for. Filing a wrongful death claim can be difficult, the best chance of determining whether you are eligible to bring a wrongful death claim is to hire an experienced...
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Getting a Misdiagnosis

A misdiagnosis is one of the most common types of medical malpractice and occurs when a doctor incorrectly diagnoses an injury or illness or fails to provide a diagnosis at all. When a patient isn’t give the right diagnosis, he or she may be given unnecessary treatments that can do more harm to the body, or no treatment at all.  In either case, that patient has the right to file a medical malpractice lawsuit against the doctor. Common Types of Misdiagnoses With all the different types of diseases and conditions, there are many potential misdiagnosis scenarios. Here are the most common ones: ●   Heart attacks may be misdiagnosed as panic attacks or indigestion ●   Staph infections may be misdiagnosed at the flu ●   Asthma may be misdiagnosed as bronchitis ●   Strokes may be misdiagnosed as headaches or other minor issues ●   Lymph node inflammation can be misdiagnosed as appendicitis You Must Prove the Malpractice Caused You Harm To win a medical malpractice lawsuit, you have to do more than just show that your doctor didn’t make the correct diagnosis. You also have to prove that the misdiagnosis caused you harm. For example, if the misdiagnosis resulted in you needlessly receiving an aggressive treatment, like chemotherapy or radiation, or an unnecessary surgical procedure, it shows that you were indeed harmed. Preventing a Misdiagnosis The idea of getting the wrong diagnosis is scary, but there are several things you can do to minimize your risk: ●   Don’t hesitate to ask questions: If you are having trouble understanding what your doctor is saying, don’t be afraid to ask him or her to explain in further detail. Find out why he or she thinks you have a certain injury or disease. In addition, ask your doctor what other possible diagnoses there could be for your condition. ●   Do Your Own Research: After your doctor has diagnosed you, take the time to research your condition online. This will help you better understand your illness and help you ask your doctor the necessary questions. ●   Get a Second Opinion: If you have doubts about the diagnosis your doctor gave you, don’t hesitate to ask the opinion of another physician. It is your health and you deserve to have as many explanations as you want about your illness. ●   Hiring a Medical Malpractice Lawyer ●   A...
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Claims for Food Poisoning

When we eat a meal at a restaurant or purchase food at a grocery store, we expect that the food we are purchasing is safe to eat, especially given the amount of government regulation and oversight that is supposed to be in place. But it seems that we are barraged on a daily basis through the new media with announcements of recall after recall of contaminated and unsafe food that often results in the serious illness – and even death – of consumers. According to national statistics, there are approximately 48 million people that become ill because of food contamination every year, resulting in the hospitalization of almost 130,000 victims. Food poisoning kills 3,000 people each year in the U.S. If you or a family member has suffered an illness or injury because of food contamination, contact a personal injury lawyer. An experienced legal team should have been advocating for injured clients for many years and should be available to meet and discuss what legal options you may have. Types of Food Poisoning Although there are a myriad of food contamination illnesses, some of the most common include: Botulism is found in improperly canned foods. Symptoms usually appear within 12 to 72 hours of consumption and include diarrhea, vomiting, blurred or double vision, difficulty swallowing, and weak muscles. Botulism can result in respiratory infections and even death. E. coli is found in food or water that has been contaminated with human feces. Symptoms usually appear within a one to three days of consumption and include diarrhea, vomiting, and abdominal cramps. Hepatitis is found in uncooked foods or raw produce, and foods handled by someone who is infected. It can also contaminate drinking water. Symptoms usually appear within 15 to 50 days of consumption and include diarrhea, fever, nausea, headache, and jaundice. Norovirus is found in uncooked foods, raw produce, and contaminated water.  It can also be found in foods not reheated after contact by an infected food handler. Symptoms usually appear within 12 to 48 hours after exposure and include headaches, fever, and nausea. Children usually suffer from vomiting while adults usually suffer from diarrhea. Salmonella is found in eggs, cheese, raw fruits and vegetables, meat, and unpasteurized milk. Symptoms usually appear within six to 48 hours of consumption and include diarrhea, fever, and vomiting. Staphylococcal (staph) food poisoning is found in unrefrigerated egg salad, potato salad, and meats....
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Car Dealerships, Overtime, and the Fair Labor Standards Act (FLSA)

The Fair Labor Standards Act (“FLSA”) sets important employment law standards, such as minimum wage and overtime pay, as a skilled overtime lawyer can explain. The US Supreme Court recently made an important ruling in the domain of overtime payments and the FLSA, particularly with regard to car dealerships. With Encino Motorcars v. Navarro, the Court held that service advisors at car dealerships are not covered by the FLSA protections around overtime. In other words, they are exempt from this law and not entitled to its benefits. “Service advisors” are the service salespeople and those who service cars. The Court, in holding these workers exempt from the FLSA, essentially reversed the Ninth Circuit’s ruling that they were non-exempt, i.e., that they were covered by the law and were entitled to overtime pay. Service Advisors Before the Law In 1961, Congress amended the FLSA to exempt everyone who worked at car dealerships. Then, in 1966, Congress narrowed the exemption, including people “engaged in selling or servicing automobiles.” Until 2011, the Department of Labor stood by a similar opinion, that service advisors were exempt from overtime pay requirements. However, in 2011, the Department flipped this opinion, stating that they were not exempt from the law, and thereby should get overtime. Then, a dealership brought suit, landing the case in the Ninth Circuit (ruling they were not exempt), and finally up to the Supreme Court (disagreeing with the Ninth Circuit and ruling that they were exempt). Basically, according to the Court in Encino, because of the kinds of activities that people conducting sales and servicing at dealerships do, they fit within the definition of exempt employees in the FLSA. For this reason, workers who perform these jobs should not get overtime protections. So, because Congress originally intended them to be exempt when it created the FLSA, this should hold true into the present according to the Court, and therefore these workers should still be considered exempt. While the rules have undergone changes over the years, the Court established the law of the land in Encino. The Future? Finally, the Court rejected the Ninth Circuit’s argument that the exemptions under the FLSA reaching back to when it was created should be construed narrowly and limited. In other words, because the Court’s ruling also rejected the idea that FLSA exemptions ought to be read in a more limited way, this effectively means potentially other...
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Protecting your Personal Injury Settlement Through a Divorce

Divorce can be a painful and emotional process, coupled with complex legal proceedings, and an unclear financial future makes the process especially stressful. It can become even more unpleasant if there is a substantial personal injury settlement hanging in the balance. It is likely that if you were awarded a settlement, protecting your money from your spouse will be important. There are a number of considerations that must be factored in when it comes to protecting your settlement. Community Property Community property laws state that all money, property and assets that are gained during marriage are considered the property of both parties. Unless otherwise agreed upon, property is often divided between the two parties equally. Property that was owned prior to marriage is, in most cases, considered separate. It is important to remember that this can vary depending on the state you reside. Equitable Distribution In some states, the court will choose how assets will be distributed to parties if they are unable to make an agreement, known as equitable distribution. The court will determine the contribution each spouse made to the marriage. This is also looked at in figuring out alimony. When it comes to settlement money, an attorney will be able to build a defense in order to keep it, regardless of the state you live in. Use a Separate Account for Accident Related Expenses When you share a bank account with your spouse, it is likely that you will have used it to pay for expenses related to the accident you received. This will include the purchase of medical equipment, medication, therapy and hospital bills. If you used a separate account for accident related expenses, it will prove that you did not use your spouse’s money to help with costs related to your accident. This will provide clear proof during the divorce that they should not be entitled to your personal injury settlement. Personal Settlement Award You could potentially protect yourself from sharing your settlement down the road if you put the money you were awarded into an account in your name. This will be beneficial during divorce, especially if you are in disagreement with who is entitled to the money. When you put the money into a joint account, the chance of sharing it will increase. It is implied that you never planned to share the money if you put it into an account that...
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