Medical Malpractice: Time Limitations

In California and is all states there exists strict time limits on when you can file a medical malpractice lawsuit. The time limits vary from state to state. So if you believe you have a medical malpractice claim whether in California or elsewhere it important to contact a local personal injury who handles medical negligence claims and he or she can tell you what the statute of limitations is.

A statute of limitations is the deadline for filing a lawsuit. Most lawsuits MUST be filed within a certain amount of time. In general, once the statute of limitations on a case “runs out,” the legal claim is not valid any longer. The tragedy is that if you have a valid claim but decide to pursue it after the time limit (statute of limitations) has run out, you are out of luck. I have at least one call a week in which that is the case, someone waited to long.

The lesson from all this is: do not keep your suspicions about medical negligence / medical malpractice a secret. If you suspect that you, or a loved one has been the victim of medical negligence, find a medical malpractice lawyer to discuss your concerns with. Most experienced medical malpractice attorneys will provide an initial free consultation either by telephone or in person. Often times he or she will be willing to look at some medical records or review a summary that you have prepared at no charge. Our office offers this service.

One of the most important things you will likely learn by consulting with a medical malpractice attorney is the type of the probable statue of limitations for your claim. For example, in California if a medical malpractice incident involves a private healthcare provider and the victim is an adult the California Code of Civil Procedure § 340.5 provides “In an action for injury or death against a health care provider based upon such person’s alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first. In no event shall the time for commencement of legal action exceed three years unless tolled for any of the following: (1) upon proof of fraud, (2) intentional concealment, or (3) the presence of a foreign body, which has no therapeutic or diagnostic purpose or effect, in the person of the injured person.

For minors, not including birth related injuries, which is covered by a different statute, California Code of Civil Procedure § 340.5 provides for such minors as follows: “Actions by a minor shall be commenced within three years from the date of the alleged wrongful act except that actions by a minor under the full age of six years shall be commenced within three years or prior to his eighth birthday whichever provides a longer period. Such time limitation shall be tolled for minors for any period during which parent or guardian and defendant’s insurer or health care provider have committed fraud or collusion in the failure to bring an action on behalf of the injured minor for professional negligence. ”
For claims involving medical malpractice claims involving California state public / governmental entities the following general guideline applies to medical negligence claim being made against a a public entity (including the state of California, a county, city or special district), including employees. A written claim must be filed. The current law required that the written claim be filed within six (6) months of the loss, even if the claimant is a minor. If the claim is not approved, a legal action must then be filed within a specified time.

You should know that many medical malpractice lawyers will not take on a new case when a claimant / injured party contacts them shortly before a statute of limitations is likely to run. There are exceptions but you must understand that an personal injury attorney / medical malpractice attorney needs enough time to properly consider and evaluate your claim. It can often take weeks or months to obtain medical records and then evaluate them.

So, do not be a victim twice, if you believe you or a loved one has been hurt because of medical negligence, seek legal counsel. Please feel free to give me a call if you live in California and believe you may have a claim. You may contact me Richard M. Katz at 626-796-6333. Our website address is www.lawyer-personal-injury-law.com.

Sympathy Does Not Work at Trial! I Dare You to Watch “Le poids des apparences | The importance of appearances”

I always tell my clients sympathy does not work at trial.  Although an initial reaction of a judge or jury may be sympathy, the sympathy does not last long. When is the last time you saw a “homeless person?” Perhaps initially you felt some sorrow or sympathy but did you give them money, food or even the time of day? A shocking video proves what I have learned in over 35 years of practice.

In a staged event by a French comic, who goes by the name Norni Tube (at least on Youtube) in a short clip, entitled ‘Le poids des apparences | The importance of appearances.’ The video shows two scenarios. In the first “experiment” an actor is shabbily dressed.  His call for help are ignored by people walking by, you will actually see people looking over and “sneak” a look in his direction. Ultimately, the actor gets up and leaves. Later in the video, the same actor dressed as a business man, wearing a suit and tie again collapses at the  same location, this time people come to assist almost immediately.

Norni Tube stated in his description of the video (translated from French) ” I’ve never been so sad and shocked while filming as I was for this experience.
I hope this video will make you want to help anyone. regardless of its appearance.” 

 

 

Appearances

Please take the time to watch the ‘Le poids des apparences | The importance of appearances.’

Sympathy? What sympathy?

What would you have done?

 

 

UP TO 40 PERCENT OF ANNUAL DEATHS FROM EACH OF FIVE LEADING CAUSES ARE PREVENTABLE

According to the Centers for Disease Control and Prevention, each year, nearly 900,000 Americans die prematurely from the five leading causes of death . However, the Centers for Disease Control estimate that a large percentage of those deaths 20 percent to 40 percent from each cause could be prevented. The percentage varies greatly from state to state.

In the United States the five leading causes of death are heart disease, cancer, chronic lower respiratory diseases, stroke, and unintentional injuries. Collectively they caused 63 percent of all U.S. deaths in 2010. Unintentional injuries include car accidents, slip and fall accidents and other personal injury accidents. The Institute of Medicine’s (IOM) seminal study of preventable medical errors estimated as many as 98,000 people die every year from medical negligence and is the sixth leading cause of death in the United States.

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The report, in a recent issue of the CDC’s weekly journal, Morbidity and Mortality Weekly Report, examined premature deaths (before age 80) from each cause for each state from 2008 to 2010. The authors then calculated the number of deaths from each cause that would have been prevented if all states had same death rate as the states with the lowest rates.

The study suggests that, if all states had the lowest death rate observed for each cause, it would be possible to prevent:

34 percent of premature deaths from heart diseases, prolonging about 92,000 lives
21 percent of premature cancer deaths, prolonging about 84,500 lives
39 percent of premature deaths from chronic lower respiratory diseases, prolonging about 29,000 lives
33 percent of premature stroke deaths, prolonging about 17,000 lives
39 percent of premature deaths from unintentional injuries, prolonging about 37,000 lives

 

Tom Frieden, MD, MPH was quoted in a CDC article as stating “As a doctor, it is heartbreaking to lose just one patient to a preventable disease or injury – and it is that much more poignant as the director of the nation’s public health agency to know that far more than a hundred thousand deaths each year are preventable,”. “With programs such as the CDC’s Million Hearts initiative, we are working hard to prevent many of these premature deaths.”

Not surprisingly, there are many modifiable risk factors that are largely responsible for each of the leading causes of death, the CDC cites :

Heart disease risks include tobacco use, high blood pressure, high cholesterol, type 2 diabetes, poor diet, overweight, and lack of physical activity.

Cancer risks include tobacco use, poor diet, lack of physical activity, overweight, sun exposure, certain hormones, alcohol, some viruses and bacteria, ionizing radiation, and certain chemicals and other substances.

Chronic respiratory disease risks include tobacco smoke, second-hand smoke exposure, other indoor air pollutants, outdoor air pollutants, allergens, and exposure to occupational agents.

Stroke risks include high blood pressure, high cholesterol, heart disease, diabetes, overweight, previous stroke, tobacco use, alcohol use, and lack of physical activity.

Unintentional injury risks include lack of seatbelt use, lack of motorcycle helmet use, unsafe consumer products, drug and alcohol use (including prescription drug misuse), exposure to occupational hazards, and unsafe home and community environments.

As you can see by making changes in personal behaviors many of the risks are avoidable. Others risk factors are attributable to disparate conditions in social, demographic, environmental, economic, and geographic attributes of the local areas in which people work and live.

The study authors note that if health disparities were eliminated, as called for in Healthy People 2020 all states would be closer to achieving the lowest possible death rates for the leading causes of death.

Harold W. Jaffe, MD, the study’s senior author and CDC’s associate director for science was quoted in the CDC article as saying “We think that this report can help states set goals for preventing premature death from the conditions that account for the majority of deaths in the United States,” He was further quoted as saying “Achieving these goals could prolong the lives of tens of thousands of Americans.”

One can learn from these findings and change their and their family’s lifestyle for a healthier life.

Can I Sue? Can I Win?

Today I would like to talk about a frequent question that people ask of me regarding personal injury claims. The question that I often hear is “Mr. Katz, can I sue?”  An easy question to ask but not always an easy question to answer.

The first question that needs to be answered is what type of claim do you have?
An Automobile Accident? Car Accident? A Slip and Fall incident? Defective Product? Medical Malpractice / Medical Negligence? Kaiser Malpractice / Kaiser Negligence?

The First Question That Need to Be Answered is What Type of Claim Do You Have?
Do you have an automobile accident or car accident claim?
Do you have a slip and fall incident?
Do you have a claim regarding a defective product?
Do you have a medical malpractice / medical negligence claim?
Do you have a claim against Kaiser Permanente for malpractice / negligence?

Depending upon the type of claim you have, the facts of your incident greatly affect the strength or weakness of your claim. Some cases, depending upon facts, require the use of expert testimony to establish liability, this is overwhelmingly true in medical malpractice cases and defective product cases.

Do I Have a Strong Personal Injury Case?
In a personal injury action based upon negligence you must prove the elements of your claim to a judge or a jury. If any one element is missing, you cannot win.  By way of example, even if you can prove that the defendant was negligent but you did not suffer any injury  you will lose your case.

Basically the elements that you must prove at time of trial are:
Duty
Breach of the Duty
Causation both Legal and Proximate
Damages

These four elements are examined in greater detail below.
Duty
Did the defendant ( the other driver, property owner, doctor, nurse, healthcare provider, etc.)
owe a duty to you?  A duty of care arises in cases in which the law recognizes a relationship between the defendant and you, and because of the relationship, the defendant is obligated to act in a reasonably careful manner in regard to  plaintiff.

A driver on the road owes a duty of due care to other folks on the road or street including motorists and pedestrians for instance.  A property owes a duty of due care to people coming onto the property and must inspect and correct dangerous conditions that exist on the property and keep in the property in reasonably safe condition. A doctor or other health care provider owes a duty of due care to their patients.

Breach of the Duty
A defendant is will be held negligently responsible if the defendant breaches the duty of care owed to the plaintiff. A defendant who fails to act as a reasonablely prudent individual in the same or similar circumstances breaches their duty. Generally speaking whether a defendant breached a duty of care is a question of fact. In some cases depending upon the facts and circumstances, we need expert testimony to establish breach of a duty, and this is often true in medical malpractice claims.

Causation – Substantial Factor 
A injured party must show that the defendant’s acts or omissions were a substantial factor in causing injury. A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. It does not have to be the only cause of the harm.

Often an injured party believes that because a physical issue arose after an incident the defendant must have caused the problem, this is not necessarily so. Often we need expert testimony by treating doctors to establish a causal relationship between an incident and injury. The same applies for claimed economic losses. If you cannot prove that the defendant’s actions were a substantial factor in causing your claimed damages then you cannot win on those claims.

Damages
You must prove that the negligent act of the defendant caused you harm, usually as physical injury to a person or to property. It is not enough that the defendant was negligent, i.e.,  failed to exercise reasonable care. For instance, suppose a doctor negligently gives you the wrong prescription and you go to the pharmacy to have filled. The pharmacy catches the error and calls the doctor and they give the correct medication to you. Also assume that had the wrong prescription be given to you, and you would have died! In my opinion you have no case because the doctor’s failure to exercise reasonable care did not result in actual damages, now had you taken the wrong medication and you died, well . . .

Conclusion
Whether you can sue and win, depends ultimately on facts or your individual claim and the relative strengths or weakness of each element of your claim.

Should you wish to discuss your matter with me, give me a call at 626-796-6333

WHY HIRE A PERSONAL INJURY ATTORNEY? YOU WOULD NOT OPERATE ON YOURSELF, WOULD YOU?

Trying to decide whether to hire a personal injury attorney / personal injury lawyer?

There are many types of personal injury claims.   Claims can arise from car accidents, slip and fall accidents, dangerous premise conditions, workplace accidents (even if you have a worker’s compensation claim, you may have a “third party claim”), airplane, bus and train crashes, construction accidents, fires, food poisoning, drug or vitamin overdoses, animal bites, criminal acts and assaults and medical malpractice to name several.

You have been involved in an incident and suffered personal injuries and are trying to decide whether to hire an attorney. Well, it is probably a good idea to consult with a personal injury who has familiarity with your type of claim. The consultations are usually free.

He or she will review the facts of your matter. Generally an attorney will initially look at three issues. They are, was the other party negligent? What are the nature and extent of damages? Is there a relationship between the incident and the claimed injuries.  After this analysis an attorney can make an assessment of the relative strengths or weaknesses of a claim and whether the claim had merit.

If an attorney concludes that the facts do not show someone was negligent, even if you suffered injuries, there is no case.  In other words, you would have trouble making a case against an owner of a store if you spilled water or salad oil on the ground and then slipped and fell because of the spill. However, if the store owner had failed to fix the plumbing in the building and the water was on the floor because of leaky plumbing or one the store’s employees had spilled salad oil and nothing was done promptly to address the condition, then you possibly have a viable claim.

Many variables can come into play in determining negligence and often you may think that there was no negligence by anyone when there actually was.

I myself, have handled cases over the years in which folks did not think they had a case.  However, they had suffered serious injuries, and they decided to contact me. After hearing the facts, I thought that there might be a viable claim.  Following an investigation and research and believing the cases had merit, we have pursued an action. I will not go into the cases, but suffice it to say, we went to obtain a recovery for our clients.  I might add that we took the cases on contingency basis and advanced all costs.

The point is if you have been injured, you should seek the advice of a competent personal injury attorney even if you do not think that there is anyone at fault. Only a good experienced personal injury attorney can evaluate your potential claim We are here to help, give me a call.
Richard M. Katz, 626-796-6333 or visit our website  www.lawyer-personal-injury-law.com

Big Pharma “Off-Label use” of Drugs

When we get sick we are often prescribed medications to treat our ills. Most prescribed drugs are safe, effective and expensive. Unfortunately Big Pharma ( Big Pharma is the nickname given to the pharmaceutical industry) typically push new and untried uses for their products often referred to as “off label use.” (Off-label use is the use of pharmaceutical drugs for an unapproved indication or in an unapproved age group, unapproved dosage, or unapproved form of administration). The practice is entirely legal and very common.

When medications are approved by the FDA, they are approved for a particular purpose and for particular users. The approval process relies on testing that shows that the drug is safe and effective for the approved purpose. However, this restricted approval doesn’t stop Big Pharma  from making an attempt to extend the marketplace for a drug by claiming that it can be used to treat alternative issues.

Does anyone remember Fen-Phen for weight loss?  The off label use /combination proved to me very damaging to patients taking the drugs for weight loss.

Another example, is one drug company promoted Depakote, an anti seizure drug, off label to treat those with dementia praecox and Alzheimer’s. The problem is that the drug had not been shown to be effective for either use, and it often caused serious side effects.

Another drug company touted Risperdal, a tranquillizer, as a drug that would be safe and effective as a way to chemically restrain individuals in nursing homes, despite the facts that such a usage was not approved by the FDA and was never found to be safe and effective. The drug increased the risk of death in patients with dementia. Even botulinum toxin A has been marketed to treat maladies such as headaches, pain, and brain disorders but has not bee approved to treat these conditions.

Unfortunately, patients are not in a position to evaluate medications on their own. And patients rely and believe doctors will safeguard them from improper use of drugs.  The reality is that doctors do not research medications on their own and often times will rely on Big Pharma’s  promoting reps, whose job it is to sell the company’s drugs. The explosion of medicines offered places doctors in a position that they cannot possibly keep up with the proliferation of drugs.

As a result, doctors typically and perhaps inadvertently prescribe medications for off-label use based upon a reps touting.  So why does Big Pharma promote off-label use? the answer is simple: cash. Drugs are high-ticket items and translate into profits. Off-label use will increase the use of a particular drug, the motivation is simple.

Keep in mind though that Off-label prescribing isn’t necessarily bad. It can be beneficial, especially when patients have exhausted all other approved options, as may be the case with rare diseases or cancer.

The next time your physician gives a you prescription, you should know that it is possible that the drug may not be approved for your specific condition or age group. In fact it is estimated that about 20%  one in five prescriptions written in the United States are for off-label uses.

Drugs do save lives and can improve ones health. Just be aware that all medications carry risks. Don’t be afraid to ask your doctor questions, he or she wants to help you but you also must be an active participant in your own care. I truly believe that good food, exercise and sleep goes along way to keeping us healthy.

If you believe you have got been injured by a medication “off-label” or otherwise you should seek the assistance of a personal injury attorney or medical malpractice attorney.

Money Awards to Injured Victims, What Motivates Jurors and Judges to Award Money?

A good case helps! This is not a joke, it is reality.

In my experience as a Pasadena personal injury attorney, jurors, judges and arbitrators (the trier of fact) are just like you and me. Ask yourself what motivates me? And you will get a pretty good idea of what will motivate the trier of fact.

Contrary to popular belief sympathy rarely carries the day. Think about how often do we see someone on a street corner holding a sign for money or food? Most folks, including you, have an initial response of sympathy but how often do you give money or food? The answer is not often. In fact if the person looking for a handout “looks too good” many think the person should “get a job” or really does not need help. So much for sympathy.

That is why for every personal injury case a compelling story needs to be told. A tale of conflict between right and wrong. This allows the trier of fact to feel like the champions of justice by finding for and awarding the injured party damages.

Themes that are effective are safety, security over profits. A freedom from injury or harm caused by neglect. Holding one responsible for their actions. Almost every claim can be presented as a battle between significant moral principles that transcend the parties to the action.

By way of example:
An automobile accident that caused serious injuries isn’t only about the injuries suffered by the plaintiff. It’s also about jurors requiring others to drive with care and caution because failing to do so can death or life long injuries. Failure to hold people responsible and accountable to the rest of society endangers us all. Safety and Security. Freedom from injury or harm.

A medical negligence case is not about the devastating injury suffered by the plaintiff. It’s also about looking after the public, other patients, the health of the community and ensuring that health care providers are held responsible after all they are paid well and have people’s lives in their hands. Safety and Security. Freedom from injury or harm.

Focusing a trial on issues of safety, security and freedom from injury or harm, helps the trier of fact understand and appreciate what another person has gone through. As the trier of fact becomes focused on upholding values (such as keeping folks safe and secure) he/she/they are more likely to relate to the trauma the plaintiff has experienced. If one fails to emphasize the big-picture significance of a case and instead focuses only on what the plaintiff has suffered, then the injured plaintiff is at a disadvantaged.

As an experienced Pasadena personal injury attorney, I know how to present a case in a way that makes it easy for jurors to award damages as a means of upholding significant and meaningful values.

Again Having a Good Case Helps

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