Using a cell phone, Eating and drinking, Talking to passengers, Grooming, Reading, including maps, Using a PDA or navigation system, Watching a video, Changing the radio station, CD, or Mp3 player are all major causes of accidents because they are examples of distracted driving. Wouldn’t be a shame if your airline pilot decided to text while landing the airplane and missed the runway?
Well, the fixed attention required to operate machinery is and should be a mandatory choice for the driver, but we are all human and we can actually think and do two things at once. Society appears to be at ease with a certain level of distractions while driving: the radio, billboards, etc, all take your eyes off the road, but we tend to allow certain distractions for the sake of functioning. Imagine no billboards on the freeways? Not likely to ever happen, but certainly, at least one auto accident has occurred because someone looked too long at the billboard and didn’t realize traffic had stopped in front. Should we sue the billboard company for creating the distraction, or the county for allowing the billboard? Likely not given our tolerance for certain levels of distractions. If you have been the victim of distractive driving call Benson & Bingham today 702-382-9797.
Below are some statistics from the U.S. department of Transportation:
In 2008, there were a total of 34,017 fatal crashes in which 37,261 individuals were killed.
In 2008, 5,870 people were killed in crashes involving driver distraction (16% of total fatalities).
The proportion of drivers reportedly distracted at the time of the fatal crashes has increased from 8 percent in 2004 to 11 percent in 2008.
The under-20 age group had the highest proportion of distracted drivers involved in fatal crashes (16%). The age group with the next greatest proportion of distracted drivers was the 20- to-29-year-old age group (12%).
Motorcyclists and drivers of light trucks had the greatest percentage of total drivers reported as distracted at the time of the fatal crashes (12%).
An estimated 21 percent of 1,630,000 injury crashes were reported to have involved distracted driving.
Driving while using a cell phone reduces the amount of brain activity associated with driving by 37 percent. (Source: Carnegie Mellon)
Nearly 6,000 people died in 2008 in crashes involving a distracted driver, and more than half a million were injured. (NHTSA)
The younger, inexperienced drivers under 20 years old have the highest proportion of distraction-related fatal crashes.
Drivers who use hand-held devices are four times as likely to get into crashes serious enough to injure themselves. (Source: Insurance Institute for Highway Safety)
Using a cell phone use while driving, whether it’s hand-held or hands-free, delays a driver’s reactions as much as having a blood alcohol concentration at the legal limit of .08 percent. (Source: University of Utah)
Recently, A Nevada Jury awarded $500 Million in punitive damages to a couple infected with Hepatitis from an Endoscopy center. It is well known the facility and its doctors, primarily Dr. Desai, reused Propofol vials (an anesthestic) on patients mixing the syringes and needles between patients cross contaminating. It is well known the Doctors did not have the money to compensate the victims who have genetically linked their disease to the outbreak at the facility. The jury awarded $5.1 Million in compensatory and then awarded the 1/2 billion dollar sum to punish the maker of the drug. The convincing argument was the 50ml vials should not have been sold to centers that had minimal use for such large doses of medication.
This lawsuit was based on the Strict Products Liability Cause of Action that is a very strong action, if the Plaintiff’s can prove the product failed in its warnings, was defectively designed, or was mis-manufactured in some fashion. The key here was the defectively designed containers that “encouraged” multi uses for business/profit reasons–allegedly. The vials do have qualified uses in drip systems and other longer sleep patient procedures. So, in essence, the company was punished by the jury (in this case Teva and Baxter Pharmaceuticals) for this “encouragement” in that they knew doctors may be reusing the vials and they helped in some fashion by making such a “large” dosage. Whether or not personal injury lawyers are correct in their allegations, the jury believed the arguments and found not only that these companies were liable, but that they should be punished for their bad behavior. Given that the combined annual revenue of these companies exceeds $13 billion, even the $500,000,000 is a slap on the wrist–but it would get any accountant’s attention. So, one must contemplate whether the underlying case was justified. To understand how a jury gets to this, one must understand that Negligence is not a bar to strict products liability.
The law is founded on the assumption that manufacturers need to make safe products–very safe products, or face severe ramifications for bad design, bad warnings, or bad product. If a product is misused this is a defense to products liability. And, arguably the doctors misused the “single” dose vials. The jury did not believe this argument because they were not allowed to hear it! The jury was barred from hearing testimony that doctors misused the vials given that this “negligence” was not a factor in the products liability action. While this author did not sit through the trial and hear all the relevant testimony, the point is clear that the case was tried as a products case, and the jury found that the manufacturer was liable for creating an unreasonably dangerous product. The absurd response comes from those who compare this scenario to that of a car driver who car drives 100 mph but yet the roads only allow for 55mph. Should we sue the car manufacturer for the drivers error when he crashes doing 100mph? Another comparison is one to cough syrup. It comes in 10 oz bottles. The consumer is “warned” to only take 2 tablespoons (one ounce). If a consumer drinks the whole bottle, should we then sue Robitussan or Vick’s Cough syrup because the consumer did not follow the instructions? Well, the crazier thing here, is not only was warning not obeyed, it was a doctor who did not obey it…
Nevada has long been a State that protects it’s own interests. That protection is evident in the case law and statutes that protect innkeepers and Nevada Casinos from liability in over serving or from kicking out intoxicated patrons who later cause harm to themselves or others. The rules for such acts are harsh as they run contrary to common law for innkeepers. The duty of reasonable care apparently ceases for bartenders who are legally supposed to stop serving drunk patrons, but may do so anyway for that extra tip or simply because of the revenue that may drop in to the bar gaming machines. Below is the most recent Nevada Law reinforcing the protection for innkeepers, and can be found at the official cite, Rodriguez v. Primadonna Co. LLC, 125 Nev. Adv. Op. No. 45 (2009).
The case law also includes reference to NRS 651.020 Eviction of disorderly persons. ”Every owner or keeper of any hotel, inn, motel, motor court, or boardinghouse or lodging house in this State shall have the right to evict from such premises anyone who acts in a disorderly manner, or who destroys the property of any such owner or keeper, or who causes a public disturbance in or upon such premises.” Obviously, what is “disorderly” is broadly construed and would likely apply to any intoxicated patron.
Appeal and cross-appeal from an Eighth Judicial District Court’s grant of summary judgment in a tort action.
Disposition/Outcome
On appeal, the Nevada Supreme Court affirmed the district court’s rulings. The Court based its ruling on Nevada’s rejection of dram-shop liability and extended the protections to intoxicated minors injured after a reasonable eviction. The Court also denied respondent’s motion for attorney fees and costs, which was based upon an assertion that appellant’s claim was frivolous because it was barred based on relevant legal authority. The Court further affirmed the dismissal of the cross-claim for indemnity, finding that no right to implied indemnity exists for defense fees and costs when the underlying claim is dismissed but the fault of the third party is not determined.
Factual and Procedural History
Martin Rodriguez, grandfather and guardian ad litem of Fabian Santiago brought suit against Defendant, Primadonna Company, LLC, for spinal cord injuries sustained by Fabian in an automobile accident after he was evicted from Primadonna’s property for disorderly behavior. Fabian, who was 17 at the time of the incident, and his two adult step-uncles, were drinking and engaging in disorderly conduct at the defendant’s hotel property, including multiple physical altercations with hotel guests. At the hotel security officers’ request, the three agreed to leave the hotel property.
Prior to leaving, hotel security guards escorted the three to their hotel room to retrieve their belongings. While in the room, the three men spoke to Fabian’s mother and informed her that they had been asked to leave the hotel and intended to sleep in the car. However, once in the car, the hotel security guard’s informed the three that they needed to leave the parking lot.
After exiting the hotel parking lot, Fabian’s uncle, who did not have a valid driver’s license, mistook a frontage road for the freeway and rolled his vehicle, which was traveling at approximately 80 mph. Fabian sustained severe spinal cord injuries.
Fabian’s guardian brought suit alleging that Primadonna acted negligently when it evicted Fabian and his step-uncles from its property, thereby allowing or directing Fabian, a minor, to be a passenger in a motor vehicle driven by an intoxicated driver. Primadonna filed a third-party complaint against Fabian’s mother for indemnity, seeking indemnification and contribution for fees and costs incurred to defend the action. After the close of discovery, Primadonna filed two summary judgment motions, arguing that it had a duty and right to evict disruptive patrons and it did not owe a duty to keep Fabian, a minor, on its premises and, therefore, was not liable for his injuries. The district court granted the motions and dismissed the counterclaim for indemnity. Primadonna, as the prevailing party, then filed a motion for
1 By Keith Pickardattorney’s fees and costs against Fabian’s guardian, arguing that the underlying action was frivolous. The district court denied the motion, finding that the action was based on a negligent eviction rather than the dram-shop liability bar.
Primadonna subsequently filed a second motion for summary judgment on its third-party claim for indemnity against Fabian’s mother. Primadonna argued that Fabian’s mother had an affirmative duty to protect her child from harm and that she breached that duty when she knowingly allowed him to leave the hotel with a drunk, non-licensed driver. The district court, again, dismissed the motion. The dismissal was based on the ruling that any indemnity claim against Fabian’s mother was moot in light of the summary judgment entered in favor of Primadonna.
Discussion
A. Standard of Review
The Nevada Supreme Court reviews orders granted summary judgment de novo.2 The Court is reluctant to affirm summary judgment in negligence cases because negligence is generally a question of fact for the jury;3 however, if the defendant is able to show that one of the elements of plaintiff’s prima facie case is “’clearly lacking as a matter of law,’” the Court will affirm the summary judgment.4
B. HotelProprietorshaveastatutoryrighttoevictdisorderlypatrons
The Court reaffirmed that Nevada hotel proprietors have a statutory right, based on N.R.S. 651.020, to evict disorderly patrons, including minors, from its premises.5 Accordingly, the Court concluded that when a hotel proprietor rightly evicts a disorderly, intoxicated patron, the hotel proprietor is not liable for any torts that an evicted patron commits after he or she is evicted, subscribing to the rationale that individuals, drunk or sober, are responsible for their torts.6 In reaffirming Nevada’s rejection of dram-shop liability, the Court further held that, while a proprietor has a duty to act reasonably under the circumstances,7 the proprietor is not required to consider a patron’s level of intoxication in order to prevent speculative injuries that could occur off the proprietor’s premises.8 Therefore, the Court concluded as a matter of law that, while Primadonna may have known that Fabian and his step-uncles were intoxicated and could
2 Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005). 3 Butler v. Bayer, 123 Nev. 450, 461, 168 P.3d 1055, 1063 (2007). 4 Id. (quoting Scialabba v. Brandise Constr. Co, 112 Nev. 965, 968, 921 P.2d 928, 930 (1996)). 5 The Court cited NEV. REV. STAT. § 651.005 (2007) in noting that “premises” includes parking lots. The court also cited Hinegardner v. Marcor Resorts, 108 Nev. 1091, 1096, 844 P.2d 800, 803 (1992) indicating that the rule applies to intoxicated minors. 6 See Hinegardner, 108 Nev. at 1093, 844 P.2d at 802. 7 Billingsley v. Stockmen’s Hotel, 111 Nev. 1033, 1037, 901 P.2d 141, 144 (1995). 8 See Mills v. Continental Parking Corp., 86 Nev. 724, 725-26, 475 P.2d 673, 674 (1970).
not safely drive, Primadonna did not have a duty to arrange safer transportation, prevent an 9 intoxicated driver from driving, or prevent Fabian, a passenger, from riding with a drunk driver.
C. Attorney’sfeesarenotappropriate
The Court affirmed the district court’s denial of attorney’s fees to Primadonna. Primadonna argued that as the prevailing party, it was entitled to recover attorney fees because the claim for injuries was frivolous and only one potential tortfeasor was sued. The Court found no authority supporting Primadonna’s proposition that the Plaintiff’s decision to sue one alleged tortfeasor and not others renders the claim frivolous. The district court may award attorney fees to a prevailing party when it concludes that the claims pursued against the prevailing party are not based upon reasonable grounds.10 In rejecting Primadonna’s argument, the Court recognized that the Plaintiff’s claim was based on reasonable grounds in that it presented a novel issue in Nevada, specifically, the potential expansion of common law liability to hotel proprietors for injuries sustained by an intoxicated minor guest after he is evicted from the premises. Therefore, the Court concluded that the district court did not abuse its discretion when it denied Primadonna’s motion for attorney fees.
D. Indemnification for attorney’s fees and costs not appropriate
The Court rejected Primadonna’s claim for indemnification for attorney fees and costs. The Court recognized that the question of whether a party for whom summary judgment has been entered may be entitled to indemnification for attorney fees and costs for defending the action is an issue of first impression in Nevada. While the Court has considered the issue of indemnification after a trial on the merits, it has not considered the issue when summary judgment has been granted. In the prior opinions after trial, the Court determined that at least some of the attorney fees and court costs incurred in defending the action may be recovered, however such recovery was limited to amounts attributed to defenses not “primarily directed toward rebutting charges of active negligence.”11 Following persuasive authority from West Virginia regarding implied indemnity, the Court adopted the rule that when a district court has disposed of the underlying liability claim, but has not established that the potential indemnitor was at fault, no right to equitable indemnity exists.12 Therefore, the Court determined that the motion for summary judgment was properly denied in the present case because implied indemnification may not be asserted without determined liability of the third party to the injured party and the showing of a nexus or special relationship between the indemnitee and proposed indemnitor.
9 In setting forth its holding, the Court cited cases from several other jurisdictions that have reached a similar conclusion, including DeBolt v. Kragen Auto Supply, Inc., 227 Cal. Rptr. 258 (Cal. Ct. App. 1986); McCall v. Villa Pizza, Inc., 636 A.2d 912 (Del. 1994). 10 NEV. REV. STAT. § 18.010(2)(b) (2007). 11 Piedmont Equip. Co. v. Eberhand Mfg., 99 Nev. 523, 529, 665 P.2d 256, 260 (1983). 12 Harvest Capital v. WV Dept. of Energy, 560 S.E.2d 509, 514 (W. Va. 2002).
Conclusion
In accordance with N.R.S. 651.020, proprietors have a statutory right, to evict disorderly patrons, including minors, from their premises. A hotel proprietor who rightly evicts a disorderly, intoxicated patron, is not liable for any torts that an evicted patron commits after he or she is evicted. In accordance with this holding, the Court affirmed the district court’s summary judgment in favor of Primadonna on Rodriguez’s negligence claim. Further, the Court concluded that Rodriquez’s claim was not frivolous because it introduce an issue of first impression. Accordingly, the Court affirmed the district court’s decision denying Primadonna’s motion to recover atporney fees and costs. Finally, the Court concluded that, while Primadonna’s motion for summary judgment for indemnification against Fabian’s mother was not moot, the claim could not be sustained because there was no determination of liability of a third party to the injured patron and no showing of a nexus or special relationship.
If you have been injured in a hotel or casino, contact the Nevada Law Offices of Benson & Bingham to determine if you have an accident or injury case.
Many states, such as Nevada, have imposed egregiously unfair limits on pain and suffering damages in Medical malpractice cases. These cases often have horrible damages leaving the victims unfairly compensated for bad medicine. Nevada currently has a cap of $350,000 for pain and suffering. Two states in 2010 have now repealed their respective States’ laws on caps. The first this year was Illinois and now Georgia (who has a cap similar to Nevada $350,000.)
These States’ Supreme Courts banned such limitation based on the Separation of Powers Doctrine Embodied in the US Constitution. The crux of the argument is that the legislature can’t impose rules on those duties fundamentally outlined for the judiciary—here reducing verdicts. The principle behind the Courts’ rulings is likely to be challenged. Can a legislature make laws that affect the judiciary? It really depends on your legal philosophy. In some respects, it seems like a conflict of interest to have a Court decide whether they have the power over the legislature to interpret a law—in other respects, it does make sense that our Separation of Powers doctrine was implemented to serve the very issue of fairness over the legislature. With the new health insurance reform, time will tell how this may impact our Medical mal-practice laws. What do you think?
Car Accidents can be avoided if everyone uses proper care. The problem is that we are human and we err. Often we go beyond just making careless mistakes, but do things that personal injury attorneys love: reckless behavior. So what is the difference between reckless behavior and negligent? Under definition, negligence equates to just breaching a duty owed—in essence being stupid: day dreaming through a red light, grabbing that spilling coffee as you hit the yellow light that turned red, simply missing the big red stop sign, or playing with the radio as you crash into the rear end of the family wagon on the highway. These are the mistakes we make as drivers. The problem is when we do the next level of culpability: encountering a dangerous situation that you know to be dangerous, and do it anyway—that is recklessness. This is a very fine line to adjudicate. Is it reckless to drive a car after you have been drinking—many think so. In fact, public policy finds that we want to discourage this behavior so much we will assign punishing damages to those persons. Elements of punitive damages are designed to punish drivers or their employers for conduct that is “reprehensible.”
We find it reprehensible to get intoxicated and drive a deadly weapon. We find it reprehensible to shoot a gun into a crowd thinking we will miss. We find it reprehensible for a truck driver to do crystal methamphetamine and drive for 48 hours straight, or for airline pilot to cockpit the airplane after a few beers. So, the question begs: is it reprehensible to drive a vehicle using a cell phone? We know it is dangerous. We know it is distracting, but yet most of us do it. Cell phones while driving cause deaths. In California last year, the engineer on a train was “texting” on his cell phone when the train collided with another. Reprehensible? Yes. What do you think?
Employers also must be careful not to condone or encourage cell phone use for its employees on the road. The consequences are dire.
The Nevada Legislature has capped damages from Punitive damage awards limiting it to three times the amount of general damages per NRS 42.005. $300,000 cap for small verdicts (< $100K) and three times the verdict for those over $100K. These do not, however, apply to Product’s Liability cases, nor insurance bad faith cases. These are the most common cases a personal injury lawyer will deal with, except perhaps the DUI driver Defendant where the conduct is so reckless it may amount to crossing the line of intentional conduct.
Given this, the only cap on product’s liability (e.g. Ford Motor, or Tire cases where there was malice or knowledge of the defect and a jury feels compelled to punish the manufacturer) is the Governing Cap developed by our very own US Supreme Court. The US Supreme Court in a landmark decision BMW vs. Gore outlined specific notions of fairness in a platform analysis for State Judges. The platform looks at the following two prongs: Reprehensibility & Ratio. How bad was the conduct? Did the malicious conduct affect safety? = Reprehensible Conduct and Ratio: Are the two verdicts Compensatory and Punitive Damage awards have a common ratio so as to not deprive one of due process of law…property. The guideline was basically a 10:1 ratio that they could not exceed when awarding a punitive damages awards. Since this decision the Court has further narrowed the guidelines in decisions that we will not address here, but the point is clear that the Nevada Legislature has designed the guidelines for Product manufacturer’s to product safe products and do it with some integrity. Below is the statute on Punitive damage guidelines for Nevada Cases:
NRS 42.005 Exemplary and punitive damages: In general; limitations on amount of award; determination in subsequent proceeding.
1. Except as otherwise provided in NRS 42.007, in an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud or malice, express or implied, the plaintiff, in addition to the compensatory damages, may recover damages for the sake of example and by way of punishing the defendant. Except as otherwise provided in this section or by specific statute, an award of exemplary or punitive damages made pursuant to this section may not exceed:
(a) Three times the amount of compensatory damages awarded to the plaintiff if the amount of compensatory damages is $100,000 or more; or
(b) Three hundred thousand dollars if the amount of compensatory damages awarded to the plaintiff is less than $100,000.
2. The limitations on the amount of an award of exemplary or punitive damages prescribed in subsection 1 do not apply to an action brought against:
(a) A manufacturer, distributor or seller of a defective product;
(b) An insurer who acts in bad faith regarding its obligations to provide insurance coverage;
(c) A person for violating a state or federal law prohibiting discriminatory housing practices, if the law provides for a remedy of exemplary or punitive damages in excess of the limitations prescribed in subsection 1;
(d) A person for damages or an injury caused by the emission, disposal or spilling of a toxic, radioactive or hazardous material or waste; or
(e) A person for defamation.
3. If punitive damages are claimed pursuant to this section, the trier of fact shall make a finding of whether such damages will be assessed. If such damages are to be assessed, a subsequent proceeding must be conducted before the same trier of fact to determine the amount of such damages to be assessed. The trier of fact shall make a finding of the amount to be assessed according to the provisions of this section. The findings required by this section, if made by a jury, must be made by special verdict along with any other required findings. The jury must not be instructed, or otherwise advised, of the limitations on the amount of an award of punitive damages prescribed in subsection 1.
4. Evidence of the financial condition of the defendant is not admissible for the purpose of determining the amount of punitive damages to be assessed until the commencement of the subsequent proceeding to determine the amount of exemplary or punitive damages to be assessed.
5. For the purposes of an action brought against an insurance company.
For Las Vegas personal injury lawyers and their counterparts, mediation has become a very useful tool in the world of ADR or alternate dispute resolution. Both sides voluntarily sit down and discuss the options of the case with a neutral 3rd party mediator. The mediator’s job is to review the case and point out to both sides the opposing arguments to access the risk at trial. Hopefully, this insight will encourage both to give more (the Defendant to up the money) and the (Plaintiff to lower the money) with hopes of settlement.
Mediation often occurs before a jury trial as a way of final resolution and to avoid not only trial, but also appeals. Mediations are excellent for personal injury attorneys who may have client control issues; they are also excellent for most cases. This article is to bring to light the real issue of compromising a claim that occurs in these realms when sometimes that case should be tried in front of a jury. Major settlements are rarely reached in mediation except perhaps in the appellate mediation arena where a high verdict has already been adjudicated and a negotiating threshold achieved.
Compromization, as this author has termed it, may in fact be a compromise given the right set of facts when everything is considered. Why should an injured party (if the facts are good), settle without a jury trial? Often they shouldn’t. Multi-million dollar verdicts must be earned—the mediated settlement of such a large sum, makes no sense in basic theory. Why would a Corporate Defendant settle for a large amount without making the other side at least earn it? Don’t compromise your case, Call Benson & Bingham for a no cost case evaluation.
In 2003, the Nevada Legislature created political campaign entitled, “Keep our doctors in Nevada.” The argument was that due to medical malpractice insurance premium increases local doctors could no longer practice affordable medicine due to the escalating costs. The Victim’s rights groups and Personal injury attorneys banned together to unsuccessfully fight this tort reform legislation. In essence the laws were reformed to:
1.) Limit the amount of pain and suffering a victim could collect to $350,000; therefore a person who dies or is paralyzed gets only $350,000!
2.) Limit the attorney fees to discourage attorneys from taking good cases from 40-50% to 15% on amounts over $600,000.
3.) Reducing the time Victims have to sue from 2 years to 1 year; aka, the statute of limitations.
4.) Medical expenses and Wage losses (economic damages) are not part of the pain and suffering cap and are unlimited, but truly these costs are just reimbursement of costs and wages the client/victim would have made or need to make.
What these rules have done is effectively stopped good lawyers from taking good cases. Unless a person understands why, they may disagree with this author. We need to fight for just and fairer laws. A laymen’s perspective may ask, “attorney fees seem like a lot for $15% over $600,000?” Not true. When personal injury lawyers decide whether they want to take a case they ask themselves: Does the case have merit? Is the case Just? Can we prove it? Is the case worth it from a business standpoint? The official rule for attorney fees is: Forty percent of the first $50,000 awarded; 33 and one-third percent of the next $50,000; 25 percent of the next $500,000 awarded; and a cap of 15 percent for awards of $600,000 or more.
The first question is usually easy: we simply ask another medical expert their opinion on the facts of the case and whether the doctor deviated from the standard of care. Often, this is even easier if the facts indicate an obvious error. The next question is whether the case is Just? This is simply a balancing test on whether the victim was so injured as to justify the need of litigation over the need to sue a caregiver. Some cases are so minor that they don’t warrant a lawsuit. The third question is a matter of proof. Cancer victims often cry fowl that the doctor misdiagnosed the disease leading to a death. These can be tough to prove: would you have survived if they had diagnosed properly? –Tough question that borders on speculation, which is a fundamental basis, the law does not allow. Can you prove that the doctor accidentally cut your bowels during the stomach operation leading to your infection, or was that an appendicitis issue?
THE BUSINESS DECISION: RISK VS. REWARD
Also, a legal practitioner will always ask, “Does this case make economic sense?” Most people don’t understand the personal injury lawyers take the case and front all the expenses necessary to perform a jury trial. This is very, very expensive. Each doctor that testifies, as an expert must be paid. The victim usually can’t afford this, so the attorney’s front these costs. Why would an attorney represent a victim that has suffered immensely, but the case is too expensive and the risk of losing is great. They won’t. Remember that law firms are businesses that employ many persons. A firm can’t take too many losses or they wont operate; hence the art of case selection. These laws create public policy; in essence, reducing the number of attorneys taking cases, which in turn, means they only take the most horrific, easy to prove, profitable cases. The rest of the maimed public is stuck.
THE ULTIMATE RECOVERY
I don’t think anyone besides doctors will argue that $350,000 cap is fair. There are just too many horrific injuries that justify more compensation. This is just an idiotic law. Forget attorneys, forget doctors, this is about injured victims—people who have been harmed and in essence are tortured for life.
THE TIME FRAME: 1 YEAR
This is also a horrible law. One year is not enough time to realize you are injured due to malpractice, you must interview possible attorneys, collect all the necessary medical records which are normally stored in other states, hire an expert (which will also be located out of state), and finally, allow for a party to grieve. If you lose a loved one, litigation and suing is not on the forefront of someone’s mind. One year is simply too soon to be the cut-off.
THE OTHER TIME FRAME: NOT MORE THAN THREE YEARS
If you have a sponge left in your abdomen after surgery, but it is not recognized for five years, you can’t sue! Is that fair? No. Enough said.
Our law firm handles mal-practice cases because we believe the system needs experience attorneys to protect the public from harmful doctors and to encourage proper medical treatment. No one is above the law. Contact Benson and Bingham if you have been injured through no fault of your own.
Never let your attorney make vital decisions without your knowledge. Often this occurs when the clients are not available or have moved for whatever reason. The difficulty is realizing this rule is the reality that some clients truly do disappear and the lawyer must make some decision to do the right thing.
OPINION 35 - 12/11/06 It is unethical pursuant to RPC 1.2(a) for an attorney to include in a fee agreement a provision granting the attorney full and absolute discretion and authority to settle the case upon terms decided by the attorney. Naturally, this rule does protect the client.
OPINION 36 – 01/08/07 An attorney may ethically borrow funds from a third-party lending institution for the purpose of obtaining funds for use in paying litigation costs. The attorney must agree to be responsible for the repayment of the loan, interest, and associated reasonable fees irrespective of the outcome of the litigation. Repayment of the loan may not be contingent on the success of the litigation for which the loan is obtained. This now allows small firms to finance larger litigation cases without the need for in house capital. Is this a correct rule?