Accident and Malpractice
Q. What is a tort?
A. A tort is a "civil wrong" for which the law permits the victim to sue for damages. If you're injured in an automobile accident which occurred as a result of another's negligence, you are the victim of a tort, and may be able to sue the negligent party for money damages for personal injuries. Or if you sustain personal injuries as a result of a defective product (for example, tools, cars, boats, airplane, etc.) you're the victim of a tort, and may be able to sue the manufacturer or the seller of the product for damages for personal injuries. If someone slanders you, you may be able to sue as the victim of a tort, or if you are bitten by a dog, or fall on someone's property as a result of a defective condition, or if someone violates your right of privacy, or your civil rights, or you are falsely arrested, or if you suffer employment discrimination. And, of course, a professional's malpractice is a tort.
Q. If I'm injured in an automobile accident, can I sue for pain and suffering?
A. Yes, you can sue the person who caused the accident, but only if you suffer a "serious injury" within the meaning of the no-fault law. Death, dismemberment, significant disfigurement, and fractures, among others, are defined as serious injuries, thus permitting you to sue the negligent party.
Q. What is the no-fault law?
A. It provides compensation to automobile accident victims regardless of who was at fault. Generally speaking, under no-fault, your own insurance company compensates you for basic economic losses such as hospital and medical bills and certain lost earnings. There is no compensation for pain and suffering, or for any monetary amount in excess of your basic economic losses.
Q. Does the no-fault law apply to pedestrians who are accident victims?
Q. If I don't recover any money in a personal injury action, will legal fees be charged to me by my lawyer?
A. No, not if you entered into contingent fee agreement with the lawyer representing you. If you did, and there is no recovery, there is no fee. But you may be responsible for disbursements (out-of-pocket expenses) advanced by your attorney for medical reports, hospital charts, investigators, filing fees, and the like.
Q. What is a contingent fee?
A. It is a legal fee paid on a contingent basis, the contingency being the success of your lawsuit. If there is no recovery, there is no fee; if there is a recovery, your lawyer is paid a percentage (usually one-third) of that recovery.
Q. If I am partially at fault in causing an automobile accident, can I still sue?
A. Yes. Under previous law, if you were "contributorily negligent" you could not recover in a lawsuit. Under the present law, your degree of negligence will be "compared" to the other person's, and your recovery will be reduced by the degree of your "comparative negligence."
Q. What does "statute of limitations" mean?
A. It is a prescribed period of time within which a lawsuit must be commenced or it will be forever barred. The prescribed period varies, depending upon the nature of the claim, as, for example, the varying statutes of limitation in tort actions as compared to actions for breach of contract.
Q. Is there a difference between slander and libel?
A. Both constitute defamation, but, generally speaking, slander is defamation by the spoken word, and libel is defamation by the written word.
Q. I was wrongfully accused of shoplifting by a store's security guard, and held against my will until the store's representatives realized it was a mistake. May I sue?
A. If you were detained unlawfully, and without justification, you were the victim of a false imprisonment, and you may institute suit. The fact that the security guard "made a mistake" is no excuse.
Q. I own a tavern, and I've been told that if I sell alcoholic beverages to someone who becomes drunk and then injures someone else in an accident that I'm liable. Is that correct?
A. Yes, under the "Dram Shop Laws" the injured party may have a cause of action against the intoxicated person who caused the accident, and against you, by reason of having supplied the intoxicants.
Q. If I permit someone to use my car, but am not in it when that person causes an accident, am I liable?
A. Yes. The simple fact of ownership of the automobile creates your liability. It doesn't matter that were not an active participant of the accident itself.
Q. Can family members sue one another for the negligent use or operation of an automobile?
A. Yes, and that includes husbands and wives suing each other. What must be kept in mind, however, are certain laws that prohibit the payment of casualty insurance proceedings between the negligent and injured spouses.
Q. If I'm permitted to sue under the no-fault laws, can my demand for money damages extend beyond the negligent party's insurance coverage?
A. Yes. If the damages awarded by a jury exceed the negligent party's insurance coverage, the insurance company pays up to the limits of the coverage, and the "excess" amount may be collected by executing your judgment against the negligent party's income and/or assets.
Q. Am I always entitled to have my case heard by a jury?
A. In most tort actions, yes. Either side has the right to demand a jury when the case is placed on the trial calendar. If neither the plaintiff nor the defendant demands a jury, the right is deemed to be waived, and the case will be tried before a judge, alone.
Q. What is the specific function of a jury?
A. The jury has the final word on all issues of fact presented at the trial. The judge presiding has the final word on all issues of law and, indeed, instructs ("charges") the jury on the law and its application to the facts determined by the jury in your particular case.
Q. How much evidence will my lawyer have to present at a trial to prove my claim for personal injuries?
A. In most civil cases, the plaintiff's contentions must be proved by a "preponderance of the credible evidence." While it's difficult to define the "preponderance" rule, the best analogy is to envision the scales of justice, both evenly weighted and thus each in the same position. If the plaintiff's evidence tips one of the scales - ever so slightly - then the plaintiff's case has been proven by the requisite preponderance.
Q. What is medical malpractice?
A. Basically, as with all forms of professional malpractice, it's the commission of a tort in the course of the professional's practice. You may have a medical malpractice claim for example, if a doctor has negligently failed to cure a disease or an injury, or - again, if the doctor acted negligently - if there has been an aggravation of an existing condition, or if there is a new injury not logically related to the condition for which you are being treated. If, for example, a surgical sponge, or a surgical instrument, or some other foreign body is left in you following a surgical procedure, or if you negligently receive treatment intended for another patient, you may have a valid medical malpractice claim against the doctor or the hospital.
Q. Is there a fee for a consultation in an accident or a malpractice case?
A. With rare exception, we do not charge a fee for the initial consultation, a service which could proved to be the single most important step in your lawsuit. At the very least, you will be told at the conclusion whether your claim has merit.