Wrongful Death

Can I Sue Doctors or Hospitals for Wrongful Death?

Jul 8, 2014 | By Wes Cottrell | Read Time: 2 minutes

Regrettably, some people can be admitted into a hospital for a non-life threatening ailment, and never make it out.  When a loved-one dies unexpectedly while admitted to a hospital, questions often arise as to whether they received appropriate medical care.  In those situations, consulting with a personal injury attorney, who has experience in handling wrongful death cases, can help you to determine whether you can sue doctors or hospitals for wrongful death. The responsibility of doctors and hospitals All health care providers, including physicians and medical facilities, are all expected to maintain the appropriate “standard of care,” when providing medical treatment to patients.  The term “standard of care” refers to “what a competent physician would have done under similar circumstances.”  Each state establishes its own standard of care for physicians who practice within that state.  Whenever a health care provider fails to follow the standard of care, and that failure results in injury, there may be a claim for medical negligence or malpractice.  This is what is commonly known as medical negligence or medical malpractice.  If the failure results in death, a wrongful death claim  may be pursued. What is a wrongful death claim? Wrongful death” is a type of personal injury claim that arises when someone dies as a result of the negligence or intentional conduct of another.  In a common personal injury claim, the injured party can file a lawsuit to recover for the harm or damages he or she suffered.  However, with wrongful death, the victim is now deceased and cannot bring a lawsuit.  Instead, the personal representative of the victim’s estate or the victim’s heirs, are allowed to bring the lawsuit. Proving medical negligence in wrongful death cases           Establishing medical negligence in wrongful death cases requires a showing that the negligent acts or omissions of a doctor or other health care professional caused the death of a patient.  This includes the negligent acts of hospital personnel, for which the hospital itself may be liable.  Medical negligence can result from errors in diagnosis, treatment or management of an illness or injury. In most cases, expert testimony is used to establish, both what the appropriate standard of care is, and that the person accused of negligence actually fell below that recognized standard. How to sue doctors or hospitals for negligence Proving medical negligence in court requires evidence of three elements: a duty, breach of that duty and proof that the breach caused the injuries claimed.  The most critical element is establishing the medical professional’s duty.  This is where the standard of care comes in.  Without a legally recognized duty, there is no liability.  Proof that the medical professional failed to adhere to the required duty, or more specifically, the recognized standard of care, then the claim will likely fail.  Finally, there must be evidence that the negligence actually caused the death.  To put it another way, you must show that the person died because of something the medical professional did, or failed to do. If you have questions regarding wrongful death, or any other personal injury concerns in Missouri or Arkansas, please contact the Cottrell Law Office, either online or by calling us at (888) 433-4861.

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Catastrophic Injury

Catastrophic Injury in Rogers: What Are Punitive Damages?

Jul 3, 2014 | By Wes Cottrell | Read Time: 3 minutes

When someone is injured and they file a lawsuit, the remedy is most often monetary damages.  This monetary award usually comes in the form of compensatory damages, which are meant to reimburse or compensate the victim for any costs associated with the injury they sustained.  Typical costs that are reimbursed are medical expenses and property damage.  However, in some cases, additional damages are appropriate to punish the person who was at fault.  Those types of damages are called punitive damages. The purpose of punitive damages Punitive damages are awarded with the intent of punishing the defendant for intentional conduct or conduct that was more than negligent, but instead excessively reckless.  For instance, a driver who is traveling 75 mph in a residential area, would be acting recklessly.  Another purpose of punitive damages is to deter others, as well as the defendant, from engaging in that type of conduct in the future.  So, requiring the reckless driver to pay an additional amount of money for his reckless behavior would likely deter him from doing it again.  It would also send a message to others that this type of conduct will cost them severely. Are Punitive Damages Always Available? Punitive damages are not always appropriate and, by law, they are not always available to the victim.  First, punitive damages are generally only awarded in cases that involve extreme recklessness or intentional conduct.  Also, in most cases, a victim will only be awarded punitive damages if they have also been awarded some amount of compensatory damages.  This is because the amount of the punitive damages is usually closely associated with the amount of the compensatory damages award.  For example, it is common for a punitive damages award to be triple the compensatory damages amount.  All of this depends on the facts of the case.  If, for instance, the court only orders an injunction of some type, but no compensatory damages, then punitive damages would not likely be ordered. Are There Limits to Punitive Damages? Most states impose some sort of limit on the amount of punitive damages that can be awarded.  In fact, many states have passed new laws in an effort to reform punitive damages.  The reason for this push for reform is that punitive damages have become routinely requested in civil lawsuits and, when they are awarded, the juries have begun astronomically large amounts.  To lawmakers, this progression has distorted the settlement and litigation processes, resulting in very inconsistent outcomes in what should be similar cases. Punitive Damages in Arkansas Arkansas’ punitive damages law raised the standard for the type of evidence that must be proven in order to impose punitive damages.  The standard is “clear and convincing” evidence of actual fraud, malice, or willful or wanton conduct and charges.  A punitive damages award is limited to the greater of $250,000 or three times compensatory damages, not to exceed $1,000,000. Punitive Damages in Missouri Missouri’s punitive damages law provides for a separate court proceeding for the determination of punitive damages.  Under this law, the jury must first find the defendant(s) liable for punitive damages.  Then a separate proceeding is held to determine the amount, based, in part, on evidence of the defendant’s net worth.  Missouri also requires that 50% of all punitive damages be paid into a state fund. If you or a loved one have suffered a life-altering catastrophic injury in Rogers, contact our legal team at the Cottrell Law Office to receive the compensation you deserve.

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Workers' Compensation

Joplin Workers' Compensation: If I’m Injured in a Motor Accident While at Work, Can I Sue the Person who Caused the Wreck?

Jul 1, 2014 | By Wes Cottrell | Read Time: 2 minutes

The purpose of worker’s compensation is to provide employees who are injured on the job with insurance coverage, without requiring proof of fault.  In exchange for worker’s compensation benefits, employees must agree not to sue their employers.  This does not prevent an employee from suing a responsible third-party. For instance, if an employee falls from a ladder while at work, and it is determined that the ladder was faulty, the employee might file a suit for damages against the company that made the ladder.  Likewise, if you are injured in an automobile accident while on the clock and driving your company vehicle, you can sue the third-party who caused the accident. What happens if I get damages from the third-party? In Joplin and throughout Missouri, if you are injured in an auto accident caused by someone else, and you receive workers’ compensation benefits, your employer will have, what is known as, a right of subrogation against the third-party who was responsible for your injuries.  This means, your employer will have a right to receive reimbursement for any amount of benefits the employer paid on your behalf, related to that injury. How much does the employer get for its subrogation interest? In Joplin and throughout Missouri, there is a method for determining who the recovery from a third-party suit will be apportioned, known as “The Ruediger Formula.”  Based on this formula, apportionment is determined as follows: (1) The expenses of the third party litigation should be deducted from the third party recovery; (2) The balance should be apportioned in the same ratio that the amount paid by the employer at the time of the third party recovery bears to the total amount recovered from the third party; (3) The amounts due each should be paid forthwith;  (4) The amount paid the employee should be treated as an advance payment on account of any future installments of compensation; and (5)   the employee should be entitled to future compensation benefits in the event the amount paid him as an advance is exhausted under the provisions under the statute. Ruediger v. Kallmeyer Brothers Service. What is the employee entitled to after subrogation? The truth is, the employee actually becomes the trustee of an express trust for the benefit of the employer for the part of the third-party recovery that is subject to subrogation.  So, it does not make a difference if the employee actually receives nothing after the Ruediger Formula is applied. However, Missouri laws allow the employer and employee to reach an agreement about how the balance of recover should be divided.  In other words, the law does not prevent the parties from reaching their own settlement agreement.  In light of this often harsh formula, it is usually a better to course to get an agreement with the workers’ compensation carrier on a subrogation amount prior to resolving a third-party lawsuit.  Be sure to speak to a Joplin workers’ compensation attorney when considering filing suit against a third-party, if you have already received workers’ compensation benefits.

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Premises liability

Who Is the “Licensee” in a Premises Liability Case in Joplin?

Jun 26, 2014 | By Wes Cottrell | Read Time: 2 minutes

The law of premises liability determines who is responsible if someone is injured while on someone else’s property.  The extent of liability is based on the status of the injured party at the time of the injury.  In other words, why was the person on the property in the first place? In a premises liability case in Joplin, a “licensee” is a person who has permission from the property owner to be on the property.  The distinction between a licensee and an “invitee,” who also has permission, is that the licensee is there for his or her own purpose or amusement, rather than for business purposes, such as a customer.  A common example is a party guest or family friend.  Those individuals may have an invitation to visit or use the property, but they are not there to provide a benefit to the property owner. There are some situations where a person can enter a store or business, but still be classified as a licensee.  For instance, someone who enters a store to ask for directions, use the restroom or to retrieve something that belongs to them, would likely be classified as licensees as opposed to an invitee. What duty is owed to a licensee? A property owner owes a distinct duty of care to licensees, invitees and trespassers on their property.  In most cases, trespassers are owed the least amount of care, while invitees are entitled to the most. The duty of care a property owner owes to a licensee lies in the middle. Generally speaking, a property owner is liable for a licensee’s injuries if: The owner knew there was a condition on the property that posed an unreasonable risk of harm; The owner could not reasonably expect visitors to recognize the danger or appreciate how serious the danger was; The owner did not use reasonable care to eliminate the danger or to warn visitors of the dangerous condition on the property; and The licensee was unaware of the dangerous condition and the risk of danger it created. Are there exceptions to the duty owed a licensee? Yes.  A licensee can lose his or her status and, instead, become a trespasser.  This could occur if the licensee goes beyond any boundaries established by the property owner for its licensees. For example, if the guest of a party is invited into the living room, the door to the basement is shut and the owner tells the guests the basement is off limits, any licensee who may be injured while walking down the basement steps may not have a claim against the property owner.  Of course, the guest must have known the basement was off limits for this exception to apply. If you or someone you know has been injured while on the premises of someone else, you should contact a personal injury attorney to determine your rights and decide whether a lawsuit would be appropriate in your situation.

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Premises liability

Premises Liability Cases in Rogers: What is Negligence per Se?

Jun 19, 2014 | By Wes Cottrell | Read Time: 2 minutes

Violation of a statute or regulation that establishes a standard of care in a certain situation is considered negligence per se.  To establish this type of claim, you must show that such a statute or regulation exists, and it clearly defines what conduct is required, the statute or regulation was intended to prevent the kind of harm that was caused, the person who was injured was in the class of person the statute or regulation was designed to protect and the violation of that statute or regulation was the proximate cause of the injury suffered. How is negligence per se different from plain negligence? In plain negligence cases, the standard of care that the defendant was expected to meet is determined by what a reasonable person in that situation would have done.  However, in negligence per se cases, the standard of care is clearly established by the statute or regulation that was allegedly violated. Isn’t negligence also a violation of the law? Yes.  However, the difference is that negligence is typically established using common law principles, which is based on court decisions that are not codified. For example, a person who takes their eyes off of the road and causes an accident is negligent because a reasonable person should know that such an act is inherently dangerous.  This is so, even though there is no written law that says that a driver must keep their eyes on the road. However, if a defendant ran a stop sign and caused an injury, they can be sued on the theory of negligence per se because running the stop sign was a direct violation of state law that requires drivers to stop at posted stop signs. Are there stiffer penalties for negligence per se? Technically, no.  Yet, most jurors are less sympathetic toward a defendant who drives drunk or runs a stop sign. That behavior is generally seen as being more egregious in nature.  In reality, while there are no technical grounds for a jury to award higher damages for negligence per se, that is generally the case because juries feel the need to penalize these egregious acts. Examples of negligence per se in premises liability cases in Rogers In cases where someone is injured while on someone else’s property, the standard of care required usually depends on the injured person’s status, as an invitee, licensee or trespasser.  However, a negligence per se action can be brought against a landowner for violation of local building codes. Similar to motor vehicle statutes and regulations, premises have building codes that set out the standards for the safe use of land and buildings.  Proving a building ordinance violation that resulted in injury and damages is all that is required to recover against a landowner.

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Workers' Compensation

What is the Purpose of Workers' Compensation in Joplin?

May 27, 2014 | By Wes Cottrell | Read Time: 2 minutes

There are many jobs out there that carry with them a high risk of injury, such as construction, grounds maintenance, electrical maintenance and installation, roofing, mining – the list goes on.  There are also jobs that frequently cause repetitive movement injuries or illnesses due to, for instance, exposure to toxins.  So, what happens if you are injured while working?  Who is responsible for paying for necessary medical treatment?  That depends on the state you work in and the type of employer you work for.  If your state requires your employer to maintain workers’ compensation insurance, then you will be able to file a claim for payment of your medical expenses. What is Workers’ Compensation? Workers’ compensation is a form of insurance that provides reimbursement for medical care for employees that are injured while working.  This right to reimbursement requires the employee to forfeit his or her right to sue the employer for negligence related to the injury.  Each state has its own requirements and scope of benefits. The purpose of state workers’ compensation laws is to provide employees who are injured on the job with insurance coverage.  These laws were designed so that the employee is not required to prove who was at fault for the injury before the employee can receive benefits.  Before these laws were implemented, an employee who was injured or made sick while at work would have to hire an attorney and file a lawsuit against their employer in order to be compensated for that injury.  Now, in exchange for benefits, employees agree not to sue their employers. Is my employer required to maintain workers’ compensation insurance? If you live in Arkansas, and your employer has at least three (3) employees, that employer is required to have workers’ compensation insurance coverage. There may be some exceptions to this requirement.  In Missouri, any employer with five (5) or more employees must maintain workers’ compensation insurance.  One important exception in Missouri is for employers in the construction industry.  Those employers must carry workers’ compensation coverage as long as they have just one employee. What kind of benefits or compensation will I receive? Typically, workers’ compensation benefits can include medical expenses, lost wages, and vocational rehabilitation, if necessary.  Benefits may also be available for the family if a worker is killed while on the job.  It is not uncommon that an injured employee and his or her employer do not see eye to eye on what an injury is worth.  However, most state workers’ compensation laws provide specific limits on the amount of benefits the employee can receive for a workplace injury.  An employer would not be required to make any payments above those preset limits. Exceptions to coverage There are some situations where an employee may not be covered, even if an injury occurred on the employer’s premises.  For instance,  if the employee was injured while under the influence of alcohol or drugs or while committing a crime, the claim will be rejected.  Also, if an injury is self-inflicted, it will not be covered. If you have any questions about workers’ compensation in Joplin, contact the Cottrell Law Office.

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Premises liability

Fayetteville Premises Liability: What is an Invitee?

May 22, 2014 | By Wes Cottrell | Read Time: 3 minutes

The term “invitee” is significant in Fayetteville premises liability cases, when the issue is what duty is owed to a person injured on someone else’s property.  As the term suggests, an “invitee” is someone who is on someone else’s property because they were invited by the owner of the property.  There are two types of invitees, depending on the reason for the invitation: a business invitee or a public invitee.  If you are on the property in question in order to conduct some type of business, then you are a business invitee.  On the other hand, if the property is made available to the public, then you are a public invitee. Business Invitees In most situations, the person bringing a premises liability case is considered a business invitee, as they are on the premises for a business purpose, meaning the reason for being there will affect the owner’s financial status.  The most common example is a customer at a store.  The customer is invited to the premises in the hope that he or she will buy something.  A business invitee can also be someone hired to perform some type of work on the business property.  Those workers are being paid in exchange for the work they perform. Public Invitees When property is held open to the public at large, then its visitors are considered invitees, as well.  For example, members of the public visiting a public park to ride bikes or play Frisbee, are public invitees.  However, someone who breaks into a public library after hours, would not be considered an invitee.  Instead, that person would be a trespasser, because the library was not open to the public at that time. When would someone not be considered an invitee? In Fayetteville, an invitee who goes beyond the boundaries of the invitation loses his or her invitee status, like in the case of the person breaking into the public library.  Another example would be a customer who, initially, is an invitee, but if he goes into the back storage area meant only for employees, despite clear warning signs, he will no longer be considered an invitee. This distinction is important because the duty of care that a property owner owes is based on the status of the person who is injured. What duty is owed to an invitee? A property owner has a duty to protect any visitors on his property from dangerous conditions.  When a property owner fails to meet this duty, he or she may be liable for the injuries a visitor sustains.  However, the extent of the duty that is owed, depends on the status of the visitor.  Invitees are owed the highest duty of care. If there is a dangerous condition on the property that would cause an unreasonable risk of harm to an invitee, and the property owner knows, or reasonably should know of the condition, the owner must use ordinary care to reduce or eliminate the danger, or to warn invitees about the danger. There may be exceptions, such as when the dangerous condition is easy to detect.  In those cases, the property owner may raise the affirmative defense that the condition was “open and obvious.”  A visitor has a duty to protect himself or herself when the dangerous condition is open and obvious.

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Dog Bites

Rogers Dog Bites: Am I Liable to a Trespasser for a Dog Bite?

May 20, 2014 | By Wes Cottrell | Read Time: 2 minutes

Laws relating to liability for dogs are different in each state.  Therefore, owner liability for dog bites depends on where you live and which laws apply to your state.  Generally, states have either adopted the “One Bite Rule” or the “Strict Liability” approach. Arkansas’s One Bite Rule The One Bite Rule, as the name suggests, allows a dog “one free bite” before the owner can be held liable for a dog bite injury, as long as the owner was not negligent in controlling the dog.  The One Bite Rule does not protect an owner if other dog laws are being violated at the time, such as leash laws. If the person who is injured was a trespasser at the time, the owner will normally argue that the laws that generally apply to liability for trespasser injuries should also apply to dog bites.  Property owners are not generally liable for injuries to trespassers, but there are some exceptions. One exception is when a property owner has become aware that people trespass on his or her property with some frequency.  In that situation, the property owner would be expected to anticipate the dangerous condition posed even to a trespasser, and would then be required to take some action to protect the trespasser from danger. A common example of a discovered trespasser is when a property owner discovers that people routinely use their property as a shortcut to a public park.  In that case, the property owner should post a sign warning of any dangerous condition on that property. Missouri’s Strict Liability Rule State’s that follow the strict liability rule will hold a dog owner liable for injuries caused, regardless of whether the dog has ever bitten anyone before.  You are held responsible simply because the dog belongs to you.  This is the most common rule. This rule is obviously strict, because it does not matter whether you took the necessary precautions, complied with all dog laws in your state, and had no idea your dog posed a threat.  Simple ownership is enough.  Fortunately, the strict liability rule does offer some relief for dog owners when the person injured was a trespasser.  If the person who is bitten was on the property of another without permission, either express or implied, the owner is not held responsible for the injuries under the strict liability rule. So, the good news is, with very few exceptions, a dog owner will not be held liable for a dog bite to a trespasser.  If someone was on your property without permission and was injured by your dog, contact the experienced Rogers dog bites attorneys of the Cottrell Law Office online or by calling our toll free number (888) 433-4861.

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