Personal Injury FAQs

What is a Toxic Tort?

A toxic tort is a growing area of law that covers a wide variety of injuries due to contamination, toxins and/or faulty medications or drugs. Some examples of injuries that would fall under toxic tort law would be lead poisoning, asbestos related injuries (mesothelioma), contaminated water, contaminated buildings, pesticides, catastrophic events, tobacco, radiation or injuries due to medications or medical devices. There are certain similarities that toxic tort claims share. First, the injury was caused by a dangerous/unsafe substance. Next, persons who came into contact with the substance became at risk for injuries (similar in nature). Usually, the extent of the injuries may not be known for a number of years. Additionally, the persons or entity responsible for the dangerous exposure are often numerous and difficult to establish based on the circumstances of the situation and the type of injury.

If you do have a toxic tort claim, certain elements must be proven to the court in order to establish your case. The first element is that the plaintiff (the injured party or another individual making a claim on behalf of the victim) suffered exposure to a toxic substance. Secondly, the defendant (or defendants) is responsible for the victim’s exposure. Generally, this means that the defendant (or defendants) action or nonaction contributed to the plaintiff’s injuries. Next, the plaintiff has suffered or is still suffering from injuries due to the exposure. Lastly, the toxic exposure is the cause of the victim’s injuries.

If I Have Been Injured by a Toxic Tort, Who is Responsible?

The party liable for your toxic tort related injury may vary depending on the injury, type of toxic tort involved and at what point the contamination took place. If you were injured by a dangerous product, the manufacturer, designer/architect/engineer, distributor or other retailer may be held liable; the parties that provide transportation of the dangerous product may be held accountable as well. Accordingly, if you were harmed by toxic waste, the company that disposed of the waste improperly, or property owners who did not dispose of waste on their land, may be responsible for your injuries.

In other cases, the toxic substances may be in the materials of a building, causing something called “sick building syndrome.” This is an illness that causes negative health effects in individuals when they are inside the contaminated structure, but they regain health when they leave the building. In this type of contamination the persons who designed, supplied the harmful materials or constructed (usually contractors) the structure may be held responsible for injuries caused by the contamination. Less commonly, employers (including the government) may be defendants in a toxic tort claim, if the facts of your case allow. There are laws precluding employers from being held responsible for workers injuries due to exposure to hazardous materials, so this claim is dependent on your specific situation. If you think your employer may be to blame (or partially to blame) for your injuries due to a toxic substance, it is important to speak with an attorney knowledgeable in toxic tort litigation to discuss the facts of your case and determine the appropriate claims for you to pursue.

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How do Insurers Determine What a Car is Worth?

Insurers keep proprietary databases on car prices, similar to the Blue Book or the National Auto Dealers Association (NADA) Official Used Car Guide. The insurer's valuation of your car is mostly based on its age. So, for example, your car might be totaled if it's thirteen years old and receives only minor damage, and it might not be if it's a brand new Porsche that has been in a devastating collision. If your automobile is “totaled,” that means that it would cost more to fix your car then the car is worth. Most auto insurance contracts contain a provision that states if your car is damaged in an accident, your insurer does not have to pay you more than your vehicle is worth. So if your car is “totaled out” by your insurance company, what you will receive is a check for the value of the car. Unfortunately, this is usually not enough to replace your car or to fix the damage to your car. Additionally, if you get back your car and use the money to fix it, insurers may refuse to provide more than basic liability coverage on your vehicle since it has been deemed a total loss.

If your car is totaled by your insurance company, it will usually be taken to a salvage yard, auctioned off and disassembled (“chopped up”) for parts. The insurance company will keep the money the car was purchased for at the auction. However, if you decide to keep your car and repair it, you should be able to do so. Many insurers will return the car to you if you request it, but this may vary from carrier to carrier. Other insurers will let you buy back your vehicle at its salvage price. In these situations, the insurer may deduct the salvaged (buy back) amount from your “totaled out” sum when they send you the check for the value of your car. Alternatively, certain insurers won't return a car if it's rare or newer, and the insurer thinks it will get a substantial sum at auction. If your car is returned, you will have to repair it and pass a Department of Motor Vehicles inspection to get your car back on the road. It is important to be aware that insurers may refuse coverage for a totaled car beyond basic liability insurance unless the car passes the DMV inspection. In addition, in order to have complete coverage on your totaled car again, you will have to have it completely repaired.

What Can I do if I Disagree With the Insurer's Valuation?

Valuation problems arise in two ways. The most common problem is that the insurer's valuation isn't anywhere near enough to purchase an equivalent car in the marketplace. If you don't agree with an insurer's estimate of your car's cash value, your best bet is to pay an independent appraiser to provide an estimate. You may need to bring in more than one, so the car will have to be fairly valuable to make this process worthwhile.

If an independent appraiser does not help you and your insurance company reach an agreement regarding valuation, you may try to resolve the matter either through arbitration or litigation. Arbitration is often less time consuming and less expensive than going to court. It is important to have an attorney during this process to look out for your rights and interests. If you choose litigation, be aware that going to court is rarely a cost-effective option. Unless the car was extremely valuable, and the insurance company's offer is a tiny fraction of what you believe the vehicle was worth, you may spend more in attorney fees and costs than the amount you might recover. Speak to an attorney in your area to discuss your legal rights and options in pursuing litigation.

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How do I Know if I Have a Personal Injury Case?

To have a personal injury action you must have suffered harm. The harm may be an injury to your person or personal property. It can also be the perception of harm, such as a threat (assault), which caused emotional injury. Your injury must be the result of an action or omission of another and must not have been caused by your own actions or negligence. If you feel you have suffered an injury at the hands of another, you may have a personal injury claim. It is important to discuss your possible claim with a personal injury attorney in your area. Different types of claims must be filed within a certain amount of time, or you cannot file your claim. This is called the statute of limitations; different jurisdictions and types of claims will have specific limitations that an attorney will have knowledge of and be able to communicate to you.

If you pursue your claim and meet with an attorney, there are certain documents and information that you should have to bring with you on your first meeting. The information will vary depending on your situation and your attorney may ask you to provide additional information then what is discussed here. In general, you should give your lawyer copies of any documents that may be related to your case. Documents may include, medical reports and bills, insurance information (policy and any communication you may have had with your insurance company or the other parties insurer) and any information you have about the incident. Information about the incident may include police reports, contact information of the other parties, insurer of the other parties, witness contact information and details about the situation when the occurrence took place. Any other information about the accident or event would be helpful for your attorney as well. This may include, photographs of your injuries or property damages and any other information you may have.

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How do I Choose a Personal Injury Attorney?

If you have decided to pursue your personal injury claim, you will want to start researching attorneys to assist you with your claim. There are a number of factors you should consider when choosing the right attorney for your situation. Most often, you will want to hire an attorney who has experience with claims similar to yours. Look for an attorney who practices personal injury law, this will help ensure he or she is knowledgeable in this area of law, keeps up to date on any new developments in the law, has a record of past successes and verdicts in personal injury law and may have relationship and reputation with other legal professionals in the personal injury law forum, which could be beneficial if you are seeking settlement or litigation.

Furthermore, you should try to find an attorney that you can afford and who you feel comfortable working with. Ask your potential lawyer about their billing and fee structure. Often in a personal injury case, fees will be paid on a contingency basis. This means your lawyer will be paid if he or she achieves a settlement/verdict in your favor. The fees will be paid out of your damages/recovery. Make sure you discuss if your potential attorney offers contingency fees or another fee arrangement. Additionally, it is important to have an initial consultation, prior to hiring, an attorney. This is an interview for both you and the attorney to make sure the attorney would accept your case and that you are comfortable with him or her. Most firms provide free initial consultations; it is important to ask about this prior to scheduling your meeting.

Who Is Responsible for Birth Injuries?

During the delivery of a child, injuries sometimes occur. Often these injuries are not avoidable. However, at times injuries are the result of medical negligence and may have been prevented if responded to properly and with adequate care. If your child suffered preventable injuries during birth, there may be a number of people held responsible, including the doctor, other hospital employees and/or the hospital. It depends on the type of injury your child suffered and the circumstances surrounding the injury.

In many cases, the physician who performed the birth may be held accountable for his or her own actions (if negligent) or the actions of employees under his or her supervision, such as nurses, medical residents or interns, other physicians or other staff members. In a medical negligence claim against a doctor, the plaintiff (most often the parents on behalf of their child) must prove to the court that the doctor who delivered their child failed to meet the standard of care, which is the level of care other doctors would use in a similar situation. If the court confirms that medical negligence has been established, the doctor may be held liable for your child’s injuries.

Likewise, hospitals must also meet a standard of care used by other hospitals in the same/similar circumstances. Hospitals also owe patients receiving treatment a duty of care. If it can be shown that the hospital failed to meet their standard of care or breached the duty of care owned to their patients, the medical facility may be held liable for injuries. Moreover, a medical facility may be held responsible for the actions of their employees and may be found liable of corporate negligence in cases where the hospital has been negligent in their hiring practices, by hiring unqualified employees, or has not provided adequate supervision of their employees. In some cases, other staff members may be held liable for their negligent actions. Such as nurses who were found to be medically negligence. However, often hospitals may be held accountable for negligent actions of staff members as well.

What Damages May I Be Awarded if My Child Suffered Birth Injuries?

As parents, you may be awarded damages for your child’s injuries. The amount and type of damages will depend on the extent of the injuries, the circumstances that caused the injury and the law in your jurisdiction. Parents may receive damages for their own losses, such as loss of companionship, negligent infliction of emotional distress, medical costs and, in some cases, wrongful death. Additionally, parents may also receive damages for birth injuries on behalf of their child. Some examples may be damages for pain and suffering, mental or physical disability, loss of future income and/or loss of quality of life. Usually monetary damages for the child’s injuries will go to the child; a trust for the recovery the child is awarded may often be created for his or her benefit. The type of recovery available is dependent on many factors, it is important to speak to an attorney about the circumstances of your case for more information.

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What Type of Claim May I Have for an Animal Bite Injury?

Most jurisdictions have statutes that pertain to animal bites and a majority of states have dog bite specific statutes. The type of recovery you may receive depends on the law in your jurisdiction. If you are in a state that has a dog bite statute, the owner may be liable for an injury their dog causes, even if they did not know that the dog was dangerous; this is called strict liability. There are exceptions to this general rule, such as if the injured person was trespassing at the time of injury, the owner may not be liable. If you are in a jurisdiction that does not have a dog bite statute, proving the owner’s knowledge of possible danger and control over his or her animal becomes more important.

In some animal bite cases, the injury may not have been caused by a dog. Most jurisdictions do not have statutes specific to other types of animals. In the case of another domestic animal, you may have a negligence action. In a negligence claim, you must show that the owner of the animal knew of the animal’s dangerous tendencies and did not prevent the foreseeable harm that occurred.

Less often, the animal bite was caused by a wild animal. If the wild animal is owned by an individual, that person will usually be held to an absolute liability standard. This means that even if they have safety measures in place, the owners will be held responsible for any harm caused by their animal. If the wild animal is not owned by a private person, but a government entity or a facility, such as a zoo, absolute liability will not apply. Instead, negligence must be proven to the court to show the facility’s/government’s liability.

Who May be Liable for Animal Bite Injuries?

Various parties may be liable for an animal bite. It depends on the situation that led to the injury. Most often, the animal’s owner will be the responsible for the wounded person’s injuries. In some jurisdictions, the owners will be liable for their animal’s actions without having to show fault. However, in other jurisdictions, the injured person must show that the owners knew that their animal was dangerous. Alternatively, in some cases the animal does not have an easily identified “owner.” The animal may be in a shelter, kennel or other facility. If the animal is in a facility, the court will have to weigh the facts of the case to determine who had control over the animal at the time of the attack. Likewise, the animal may be under the control of an entity, such as the government. If a government entity controls the animal, they may be a liable party in an animal bite injury case.

What Type of Damages Could I Get for an Animal Bite Action?

The amount and type of damages you may receive in an animal bite case will depend on the extent of your injuries, specific facts of your case and the jurisdiction you are in. In general, damages in animal bite cases include any medical costs, medical treatment for injuries (immediate treatment and future treatment), pain and suffering, compensation for property damage, loss of earning capacity or any lost earnings, if you were not able to work due to your injuries (physical or emotional).

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What is Uninsured or Underinsured Motorist Coverage?

Most states have statutes that require insurance companies to offer uninsured/underinsured motorist coverage as a part of each automobile/vehicle insurance plan. In most jurisdictions, an individual may be considered underinsured when his or her insurance policy coverage is not enough to fund the full amount of damages he or she is liable for due to an accident or other event covered by his or her policy. In other jurisdictions, a person is considered underinsured when his or her insurance coverage maximum is less than the coverage maximum of the other individual’s (in the accident) policy. Of course, uninsured persons are those that do not carry automobile liability insurance. The purpose of uninsured/underinsured motorist coverage is to protect against situations where one party to the accident does not carry enough insurance or does not carry insurance at all. Therefore, the intent of mandatory uninsured/underinsured motorist coverage is to protect people against monetarily irresponsible individuals who have injured others, due to their own fault, while operating an automobile. If the uninsured or underinsured individual is not at fault, most underinsured/uninsured motorist policies will not apply.

Who is Usually Included in my Uninsured/Underinsured Motorist Coverage?

Generally, uninsured/underinsured motorist insurance coverage will include the named insured (person who has the insurance policy) and the family members who reside in his or her household. Usually, the injured insured person and/or family member must be a passenger in the vehicle, a pedestrian injured by the vehicle or the driver of the vehicle in the accident. In the past, some insurance policies excluded coverage for the insured’s family members. However, these types of exclusions have been found invalid by most state laws. The only time such an exclusion may be found valid is when the family members already have a separate insurance policy of their own. This type of exclusion is valid by most state laws because it is in the interests of public policy and the insurer. Along these lines, an insurance policy may not exclude a family member of the insured who is not covered by the policy, but who is injured while in a automobile that is owned by a family member who is covered by the insured’s insurance policy. It is important to speak to an attorney in your jurisdiction to learn about the uninsured/underinsured motorist coverage and exclusion laws that may apply in your state.

As an Employee, Am I Covered Under My Employer’s Uninsured/Underinsured Motorist Insurance Policy?

The courts will look to the language of your employer’s uninsured/underinsured insurance policy to determine who is covered under that policy. The uninsured/underinsured motorist statute in your jurisdiction may also determine who is covered under your employer’s policy. In some jurisdictions, an employee will be covered by his or her employer’s corporate policy if the employee is using his or her own vehicle for business purposes, at the direction of his or her employer. The employee’s personal vehicle may be considered leased, or hired, by the employer. In other jurisdictions, an employee using his or her personal automobile for work purposes will not be covered under the state law’s definition of a “named insured” (person or persons covered under the insurance policy) under the corporate policy.

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I Have Been Hurt by Using a Defective Product, Who is Responsible for My Injuries?

There are many products on the market that we use today. Since the products are available to us, we assume that they have been tested, approved by the proper authorities and are safe. However, this is not always the case and injuries may occur. Products on the market that cause injuries may be found to be inherently unsafe and defective. A product may be defective in its design or in the way it was manufactured. The cause of the defect may determine the party responsible for any injuries you have suffered due to using the product. The liable parties will also depend on the type of product and the factual situation in which you were injured.

Generally, the defendant in a defective product claim will be the company who designed the product or manufactured the product. Design and manufacturing may have been done by different companies. Therefore, the source of the product’s defect is important to your cause of action. Additionally, the company in charge of testing the product, prior to being released to the public, may be a responsible party in your claim for injuries. If the company (often the product manufacturer) discovered harmful risks associated with the product and did not reveal those risks, or provide warnings of possible harmful side effects, they may in held liable for your injuries. The law provides a legal duty to warn consumers of any risks associated with a product; if the company failed to do this, they may be held accountable.

Furthermore, if the product you used was a medical drug or device, there may be additional parties held accountable for your injuries. Like with other products, the company who designed the product and the company who manufactured the product may be responsible for your injuries, depending on where the defect occurred. In cases of a medical product, the doctor who prescribed the defective drug or the pharmacist who dispensed the drug or device may also be held liable. If the doctor knew of potential harmful effects of the medical product and did not warn you, or did not adequately monitor you, he or she may have some responsibility. Additionally, your pharmacist must warn you of any known risks and dispense the drug correctly.

What Cause of Action Could I Have If I Was Injured by a Defective Product?

As the possible responsible parties may differ, so may the possible legal claims an injured party may bring. It depends on the situation and the injury sustained. Most likely you (or the injured party) may have claims for personal injury and product liability. However, if you were injured by a medical drug or device you may also have claims of professional/medical negligence against your doctor or pharmacist. Depending on the facts of your case, you could also have legal claims for negligence, breach of warranty, failure to warn or fraud. Lastly, in some cases, wrongful death may also be a possible cause of action. If the injured person dies as a result of their injuries, the decedent’s loved ones must provide evidence to the court that the victim died as a result of using the defective product.

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If I Have Suffered Injury, What Kind of Damages Can I Expect?

If you have a personal injury claim, the amounts/kinds of damages you can receive depends on the type of injury you have suffered, the seriousness of the injury, what your losses have been (financially, physically or emotionally) and what jurisdiction you live in. The court may also consider additional factors based on your situation. Generally, there are two types of damages you may receive for a personal injury claim, compensatory or punitive.

Compensatory damages are the most common and are available to compensate the victim for losses they may have suffered. The losses are not limited to physical injuries, although physical injuries may be included in compensatory damages. Other losses may include medical costs, loss of earnings (past and future), loss of the ability to work, loss of household services, emotional distress suffered by the injured party, loss of quality of life and other damages specific to the victim. Persons other than the injured party may also bring claims for compensatory damages. Others may bring claims on the victim’s behalf, such as family members, a domestic partner or a husband or wife. This may often be the situation in cases where the injured party is deceased, however the claimant (person bringing the claim) may bring a personal injury action on his or her loved one’s behalf even if they are still living.

Additionally, punitive damages may be available in some cases for additional damages the victim may have suffered. Punitive damages are not available in all jurisdictions and are determined by the fact finder in the case, the judge or jury. These types of damages do not have to be granted in a personal injury case, but are an extra type of damages intended to punish the defendant (person or persons responsible for the victim’s injuries) for their negligence or wrongdoing. The facts of the case, state law, jurisdiction and the fact finder determine whether punitive damages are warranted in a specific case. Therefore, it is important to know the law in your state and court’s treatment of punitive damages when considering your litigation expectations.

Who May Bring a Personal Injury Claim?

Usually the claimant is the victim who suffered the injury in a personal injury case. However, this is not always the case. Other persons may also file a personal injury action. First, another individual may bring an action on behalf of the injured party. This may be in cases where the victim may not bring the claim him or herself. This could be in situations where the injured person is incapable or does not have the capacity to bring a lawsuit, such as a child or an adult who does not have legal capacity or in cases where the injured party has died as a result of his or her injuries. If the victim is deceased, that person’s family/spouse/partner may also have a claim for wrongful death. Furthermore, if the victim dies after the personal injury claim has been filed; the decedent’s estate representative may carry on the claim in his or her place.

Alternatively, loved ones may have their own legal actions stemming from the victim’s injury. The claims will differ depending on the situation. However, some examples of claims may include loss of household income/assistance or loss of companionship.

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What is Liability Insurance?

Liability insurance is a contract between an individual (insured) and a insurance company. This agreement/policy is carried by an individual (policyholder) to pay any losses or damages that a third party may suffer due to the action of the policyholder. Automobile owners are required to have liability insurance in most states. Once an injury — or property damage — occurs, a claim must be filed with the insurance company. The damages covered by the insured (policyholder’s) policy, which the insured owes to a third party, will be paid by the liability insurance company. Most individuals have comprehensive general-liability insurance (CGL). This type of insurance covers a broad range of liability, such as property damage and personal injury. Similarly, some individuals may carry accident-based insurance (or occurrence-based liability insurance). This type of insurance policy also covers property damage and/or personal injuries; however, an action or occurrence must take place in order to activate the policy and the policy may have some exclusions that the insured should be aware of.

Who (and What) is Usually Covered by Automobile Liability Insurance?

Insurance policies may differ; it is important to look at your specific policy to determine the coverage under that policy. Generally, automobile liability insurance covers an accident that occurs during the operation or upkeep of the vehicle listed in the policy. The insurance company agrees to pay for any of the insured’s (policyholder’s) liabilities that arise from an accident that meet the criteria in the insurance contract. Generally, the criteria will be use or maintenance of the vehicle. However, depending on the type of liability insurance you have and the specific wording in your policy, the criteria could vary. If the automobile is in an accident and it is not during the operation of the vehicle or during maintenance, the accident will usually be covered under the policy if you can show that there is a connection between the automobile and the accident. If the vehicle had not been present, the accident would not have occurred. For example, if the car had not been parked in the parking lot the other car would not have been able to hit it and caused damages to the vehicle.

There should be a “covered persons” section of your liability insurance policy. Look to that section to determine who will be covered under your policy. Generally, persons covered will be the owner (or owners) of the vehicle, the owner’s family members, employees, guests and passengers of the insured. However, if the passenger in the vehicle is not a guest — meaning present in the car without permission — they may not be covered for injuries under the owner’s liability insurance. The purpose of liability insurance is also to protect the insured against claims from third parties. Therefore, the insurance policy should cover claims from insured third-parties against the policyholder. Such claims may be from an accident causing property damage or personal injury arising out of use or maintenance of the vehicle covered by the insured’s automobile liability insurance policy.

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What is Negligence?

If you have a been injured in an accident of some kind you may have a claim for the personal injuries you have suffered. When you have a personal injury action (or any tort claim), you must be aware of negligence. The defendant may be the negligent party and his or her negligence caused your injury. However, if you were injured as the result of your own negligence, this may also affect your claim. Negligence is failing to provide reasonable care for the safety of others or yourself. The court considers the level of care a “reasonably prudent person” would have employed in the same circumstances. If an individual fails to act as a reasonably prudent person would, he or she may be shown to have failed to protect others (or him or herself) against foreseeable harm and may be seen as contributing to the injury that occurred as a result.

Can I Get Compensation for My Injuries if an Accident Might Have Been Partly My Fault?

If you may be partly to blame for your injuries, you may or may not be able to recover damages. It depends on the jurisdiction you are in. A minority of jurisdictions follow contributory negligence: Under this rule, if your own negligence caused your injury, or played a part in causing your injury, you may not be able to recover for your injuries. However, the majority of jurisdictions follow comparative negligence. In comparative negligence, you may still recover damages for your injuries if your own negligence was a partial cause of those injuries. The amount of damages you may receive will be lessened in comparison to the amount of your own negligence. You will still be able to recover for your injuries, but the sum is contingent on your amount of fault.

Can I Get Compensation for My Accident Injuries if I Have a Preexisting Medical Condition?

Generally, if an individual has a preexisting condition, he or she may not recover damages for injuries related to that condition. However, the preexisting condition does not bar an injured person from recovering damages that were caused by the accident and not the preexisting condition. For example, if a person has a permanent back injury and is hit by a car while crossing the street, that person may recover damages from injuries sustained from being hit by the car, but not for the previous permanent back injury. Likewise, if a person already has a condition that is worsened by a accident, he or she may be able to recover damages for the injuries sustained by the worsened condition and medical treatment for the worsened condition, but not the original condition that they already had. In some jurisdictions, there may also be a separate claim for aggravating a preexisting disease, illness or condition. It is important to speak to an attorney to find out how preexisting conditions are treated by the court in your area.

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My Elderly Relative was Injured While Residing in a Nursing Home, What Can I Do?

If your loved one has been injured while living in a nursing home facility, he or she has the right to bring a legal action for damages. You may also bring a claim on your loved ones behalf, if he or she is not able to do so. You may have different legal claims depending on the situation and type of injury your loved one has suffered. Most often, a personal injury claim against a nursing home will be based on the theory of negligence. Depending on the factual situation, some negligence claims may include negligent hiring of employees, building and/or equipment maintenance or neglect in resident care. If your loved one has been injured by a staff member, you (or your relative) may also have claims of assault and battery.

Both state and federal statutes exist that protect nursing home residents against abuse, neglect and other forms of mistreatment. Forms of abuse may be physical or mental in nature and may be discovered in different ways. Neglect is usually the failure to provide an individual with basic needs, such as clothing, food, shelter and medical care. Mistreatment may also be nonphysical in nature, such as an employee taking advantage of a resident and stealing or taking control of his or her finances. These types of occurrences have become more common in recent years. For this reason, state and federal statues were created to provide protections and rights for care facility residents.

Some rights and protections nursing home residents should possess are financial information and control of their own finances (unless incapacitated); medical knowledge and control over healthcare decisions; the right to socialize/communicate with doctors, visitors, other residents and participate in activities of their choosing; and the right to be fully informed of the administrative process in their facility and able to participate when they choose. Most jurisdictions have a Patients Bill of Rights that will describe specific rights each patent is entitled to while living in a care facility. If your loved one has been denied any of his or her rights, abused, neglected or exploited, he or she (or another individual on the injured person’s behalf) may have a claim for damages.

When bringing a claim for injuries sustained in a nursing home facility, you must be able to prove a personal injury case to the court. Elements that must be proven would include the establishment of a legal duty owed by the defendant (often the nursing home) to the resident and a breach of this duty. It must also be shown that the breach caused the injury that your loved one (the victim) suffered and that the injury did in fact occur. Furthermore, in such a case, additional damages may be proven such as mental pain and suffering, permanent disfigurement, malicious conduct by an employee or loss of quality of life. Depending on the facts of your case and the jurisdiction the court is in, you may also be able to ask for punitive damages. Punitive damages go beyond compensatory damages, which are generally the type of damages received in personal injury cases. If the court (judge or jury) awards punitive damages, they are intended to punish the defendant for wrongdoing and not to compensate the complainant (the injured party or a relative on his or her behalf) for injuries sustained.

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What is a Wrongful Death Action?

A wrongful death action is a claim for damages that stem from the conduct, action or omission by another party, which caused the decedent’s injury and ultimately his or her premature death. State and federal laws have wrongful death statutes, which give certain persons the right to bring a claim for damages they have sustained as a result of the loss of their loved one. Generally, this would be monetary losses, but it may also be loss of companionship, loss to the estate or additional losses depending on the circumstances of the case.

Family members or dependents of the decedent may bring a claim for wrongful death on their own behalf, or individuals may bring a claim for wrongful death as representatives of the deceased person. Therefore, a claimant (person bringing the wrongful death claim) may be the deceased individual’s parent, spouse, sibling, child, or an executor or administrator of the decedent’s estate. Additionally, aunts, uncles, nieces and nephews may have standing to bring a wrongful death claim if they are the decedent’s heirs at law. In some states, the claimant may also be the decedent’s domestic partner. Cohabiting partners usually may not bring a wrongful death claim, unless the applicable law recognizes common-law marriage and the decedent and potential claimant were considered married at common-law. In order for an individual (family member, spouse, partner or personal representative) to bring a wrongful death claim, he or she must be able to prove to the court who they are (in relation to the decedent), the relationship/connection he or she had with the victim and his or her right to bring a claim before the court for loss. If the claimant is able to bring a claim for wrongful death, the defendant (or responsible party) does not have to be an individual. The liable party — the party who would have been liable for the decedent’s injuries had he or she not died from them — may also be the decedent’s employer, a corporation/business or a governmental entity.

Wrongful death is often used by the court as a factor to consider when determining the amount of damages in a personal injury claim. Often the fact finder (judge or jury) will be able to consider the permanent loss of the decedent’s earnings, due to his or her wrongful death. The claimant may be entitled to the amount of wages the decedent would have earned for the remainder of his or her life. This is determined by the salary amount at the time of death (some jurisdictions will also allow foreseeable wage increases), or support payments, for the remainder of the decedent’s life (based on probable life expectancy). Punitive damages may be available in a wrongful-death action. These damages will give the claimant additional money to punish the responsible party; punitive damages are not intended to compensate the claimant for his or her loss. Not all jurisdictions will offer punitive damages for a wrongful death claim. It is important to know the law in your jurisdiction when determining what type of damages to pursue in your wrongful death action.

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