Reflections on Medical Malpractice cases in North Carolina

A friend of mine recently asked me why medical malpractice cases are so challenging to litigate in North Carolina.  My response was that medical malpractice cases are some of my favorite and most rewarding cases to handle because of the close connections I’ve formed with my clients.  These clients, through no fault of their own, were all seriously injured because of a preventable medical mishap.  Like most relationships forged in trying circumstances, these bonds are meaningful, deep, and permanent.

Medical malpractice cases are difficult for many reasons.  Because they require expert witness testimony, they tend to be expensive.  It is often necessary to hire a number of medical doctors to review the case and testify, and these doctors typically charge for their time by the hour.  These cases are typically defended very aggressively by attorneys hired by medical malpractice insurance companies.  Therefore, there are usually many trips required to take and defend numerous depositions, each incurring the costs of travel, lodging, transportation, meals, etc., in addition to the costs of a court reporter and a written transcript.  Medical malpractice cases are also much more likely to be tried than ordinary negligence cases.  This means that additional costs are incurred to create exhibits, for witness travel and testimony, and for lodging, meals, and other incidental costs.  Plaintiffs in medical malpractice cases also face a number of legislative, procedural, and other rhetorical difficulties, including arbitrary legislative caps on damages, widespread (but unfounded) fears among potential jurors of frivolous lawsuits, and usually a lack of cooperation from subsequent treating physicians.

Because medical malpractice cases are so challenging in our State, it is vital that victims consult with an attorney with substantial experience in this specialized area of the law.  When considering counsel, inquire about the percentage of medical malpractice cases handled by the lawyer or firm, question whether and how often the lawyer or firm has tried medical malpractice trials, and ask about the challenges and potential costs of pursuing your case.  Finally, but just as importantly, seek an attorney with whom you will likely form a meaningful personal, in addition, to a professional bond.

 John Chilson is a partner at Comerford & Britt, LLP, in Winston-Salem where he focuses his practice on catastrophic personal injury and medical malpractice claims.  He, and all of the other experienced medical malpractice litigators at Comerford & Britt, LLP, will be glad to answer your questions and identify all available legal options.  Please visit www.comerfordbritt.com or call 877-631-8510.

Help for the Heroes

November 11th is Veteran’s Day.  It is a Day to honor our Nation’s bravest men and woman. Veterans Day, originally known as Armistice Day, was created to mark the anniversary of the end of World War I. In 1918, on the 11th hour of the 11th day of the 11th month, the guns fell silent over Europe.  In 1954 the United States decided to stop calling it Armistice Day and renamed it Veterans Day.  The selfless acts of Veterans bring an unspoken peace to our nation that some will never fully appreciate. Those selfless acts leave many Veterans with scars for life. Our Veterans’ sacrifices are met with little to no reward once they are discharged.  Many of those that have been deployed overseas have witnessed the unimaginable so what do they do when they return? Surely there are some residual effects of being at War even if you cannot physically see them. What kind of assistance is available to our Veterans when they return home to help them cope with what they have gone through? Sad to say, but there isn’t much.

At the conclusion of WWI, Congress had established a new system of benefits for Veterans that had been in place for only a year which included disability compensation, insurance, and vocational rehabilitation for the disabled. It was not until 1944 and World War II that the GI Bill was created. Currently, Veterans have the right to disability benefits, reemployment rights, proper medical care, housing, etc., when they return to the civilian world.  (http://www.vfw.org/assistance).  However, in most instances, information about and access to these benefits are not readily available.  Fortunately, there are attorneys willing to help and in some cases pro bono. Luckily, in this day and age, we are also privy to a plethora of information on the internet — with a little research Veterans can obtain the proper help they need in order to ensure they are getting all the benefits they are entitled to. (https://www.vetcompandpen.com/)

If you’re out on Veterans Day and happen to see a Service member, take the time to thank him or her for his/her service.  That’s the least we can do for the high price they pay to protect our freedom.

 Blog post author Kari Davenport works as a litigation paralegal at The Law Offices of James Scott Farrin. Headquartered in Durham, the firm has offices throughout the state and focuses on Workers’ Compensation, Personal Injury, Commercial Truck Accidents, Social Security Disability, Product Liability and Mass Torts, Intellectual Property, Civil Rights and Eminent Domain law.   

New Resource for Miller Cases

Earlier this year, the Supreme Court of the United States issued its opinion in Montgomery v. Louisiana, 193 L. Ed. 2d 599, 622 (2016), which made the holding of Miller v. Alabama, 183 L. Ed. 2d 407, 424 (2012), retroactive. Miller, of course, held that mandatory life without parole sentences for juvenile defendants violate the Eighth Amendment ban on cruel and unusual punishment. However, Miller also laid the groundwork for the Court’s determination in Montgomery that a discretionary life without parole sentence also violates the Eighth Amendment “for a child whose crime reflects ‘unfortunate yet transient immaturity.’” Montgomery, 193 L. Ed. 2d at 619 (quoting Miller, 567 U.S. at ___, 183 L. Ed. 2d at 424).

The decisions in Miller and Montgomery have already affected North Carolina and will continue to influence juvenile delinquency and criminal cases in this state for years to come. Soon after the decision in Miller was issued, the North Carolina General Assembly enacted a statutory scheme for sentencing juvenile defendants convicted of first-degree murder. Under the new statutory scheme, trial judges retain the ability to impose discretionary life without parole sentences for those defendants. North Carolina is also one of only two states in which 16- and 17-year-olds charged with crimes are prosecuted in adult criminal court. Under a separate law, cases in which a juvenile court judge finds probable cause to believe that a 13-, 14-, and 15-year-old committed first-degree murder are also automatically transferred to adult criminal court. In light of the Supreme Court’s ruling that Miller is retroactive, as well as unique aspects of North Carolina law that funnel juveniles to superior court, there will be many cases across the state that will result in sentencing hearings to determine whether defendants who were juveniles at the time of a murder should receive sentences of life in prison with or without parole.

To help attorneys prepare for these hearings, a working group of attorneys from the Office of the Juvenile Defender, the Office of the Capital Defender, the Office of the Appellate Defender, and North Carolina Prisoner Legal Services has developed a handout entitled, “Strategies for Litigating Miller Cases.” The handout provides advice for obtaining mitigating evidence, a description of the research that influenced Miller and Montgomery, a discussion of constitutional arguments against life without parole sentences, and much more. The handout also provides hyperlinks to sample motions and other resources that will aid attorneys as they defend their clients in these cases.

If you are retained or appointed to handle a retroactive sentencing hearing or a case involving a new first-degree murder charge against a juvenile client, please be sure to review the handout, which is available on the Appellate Defender website. In addition, if you are interested in joining a listserv about Miller issues, please send an email to David Andrews, Assistant Appellate Defender, at David.W.Andrews@nccourts.org. The listserv will enable attorneys in the working group to post new appellate court decisions on Miller issues and provide a forum for questions on Miller cases. Finally, please stay tuned for announcements on training events for Miller cases. Over the next several months, the working group will develop presentations on Miller issues and will work to share those presentations to attorneys across the state.

David Andrews is an Assistant Appellate Defender in the North Carolina Office of the Appellate Defender (OAD), a division of the Office of Indigent Defense Services.  OAD staff attorneys represent indigent clients in criminal, juvenile delinquency, and involuntary commitment appeals to the Court of Appeals of North Carolina and the Supreme Court of North Carolina.

Why the Sexual Harassment Scandal at Fox News Should Frighten Employees in North Carolina

If you need a North Carolina employment attorney, you probably aren’t thinking about the story of  Gretchen Carlson’s firing by Fox News and her lawsuit against the CEO. The story is well known by now: a news anchor in New York City says she was dismissed because she was sexually harassed by her boss, Roger Ailes, and she refused to go along with it. As many as 20 other women at FOX News tell of harassment by Ailes, including a woman who reported nearly 20 years of forced sex and “psychological torture” from Mr. Ailes.  No one would disagree that the harassment was terrible for the women involved.

North Carolina employees should take note, however: Gretchen Carlson’s firing and the reasons for it could easily have been swept under the rug. Ms. Carlson had an employment contract that allowed all disputes to be settled by forced arbitration. And North Carolina employees can be subject to forced arbitration too.

What is Forced Arbitration? Forced arbitration is a way to keep employees (and consumers) out of court. Some call it mandatory arbitration rather than forced, but arbitration is only mandatory because it is forced on an employee. Sometimes big companies stick the part of the contract that requires arbitration in the agreements that are signed at the beginning of employment. The requirement also could be written in a separate contract after the employment has begun. But the effect is the same:  forced arbitration is chosen by companies so that the legal process is changed if employees claim that they are discriminated against or harassed.

No Judge or Jury.  There is no judge and there is no jury when arbitration is forced on an employee. Arbitration can keep all evidence out of the public eye, because the employer can require that everything be kept secret that happens in the arbitration. Contrast that with a lawsuit, where every paper filed with the court is on view. The arbitrator who decides the case is often selected by the same company that is accused of doing something wrong and harmful.  The deck is stacked in favor of the employer.

Why is Forced Arbitration a bad thing?

  • Evidence and discovery can be limited: employees cannot find out about other employees who have suffered the same way they have
  • Companies can still choose to go to court – it is the employee that cannot
  • Employees’ awards after discrimination or harassment are often less than after court trials
  • Employees’ chances of winning are smaller than with a lawsuit
  • Sometimes employers have bad patterns of conduct that are kept secret by arbitration
  • Costs can be high when the employee has to pay a share of the arbitrator’s fee

The Seventh Amendment to the United States Constitution gives the right to trial by jury. But courts have often said that people and companies can decide to go to arbitration and the court will recognize the contract. When challenged, sometimes courts have decided to make arbitrations public, even if they are meant to be confidential in the contract.

Tia’s Story.  Think it is only news anchors and celebrities who have to worry about forced arbitration? Think again!  Take the story of an employee of Circuit City, the old electronics retailer.  Tia was harassed by her boss when she was in training to be a manager. The harassment was disgusting, including when the boss exposed his genitals to Tia. Some of the harassment was caught on tape. It was not until then when Circuit City fired him.

Tia filed a lawsuit. But even though the Equal Opportunity Employment Commission found in her favor, Tia’s case was thrown out of court because of the arbitration clause that was buried in her employment agreement.

Tia then went to arbitration because she had no choice. But as we know, Circuit City went out of business.   Tia’s case was over.

Gretchen Carlson’s lawsuit is against Roger Ailes, and not her employer FOX News.  This may allow her to get into court. But it may not:  Ailes lawyers filed a motion to force Ms. Carlson back into arbitration.   You should be allowed to take your case to a judge and jury.  Your right to a jury trial ought to be fought for, just like any other constitutional right.

If you need an employment discrimination attorney or an employment rights attorney in North Carolina, call us.  Valerie Johnson and Leto Copeley are here to help.

Copeley Johnson & Groninger PLLC is a law firm focused on representing individuals and their family members who find themselves in circumstances that they never expected.  Their clients include those who have been injured on the job, on the road, and on the premises of businesses and public facilities.  They also help those whose employers have violated their legal rights.  For more on this firm, visit http://www.cjglawfirm.com.

Road Rage and Aggressive Driving Remains a Serious Safety Hazard for North Carolina Drivers

Across North Carolina, car accidents linked to reckless driving continues to increase. With 80% of U.S. drivers experiencing road rage while behind the wheel, it is safe to say measures must be taken in order to prevent and minimize injuries linked to aggressive drivers. Far too many preventable car accidents occur each year due to distracted, aggressive and negligent driving behaviors while behind the wheel.

According to the AAA Foundation for Traffic Safety, accidents linked to aggressive driving and road rage are on the rise:

  • Between 2011 and 2015, there were a reported total of 55,000 car accidents in North Carolina as a result of careless driving.
  • Accidents related to careless driving resulted in 1,401 fatalities in North Carolina between 2011 and 2015.
  • The AAA Carolina’s Foundation for Traffic Safety reports that 8 million U.S drivers experience extreme road rage.

Unfortunately, North Carolina is not the only state that deals with this issue. 78% of U.S drivers reported to being involved in at least one aggressive driving behavior in the past year. The most common aggressive driving behaviors include: abusing the car horn, knowingly tailgating other vehicles and yelling at other motorists.

Tiffany Wright, President of The AAA Carolina’s Foundation for Traffic Safety, reminds North Carolina drivers to always remain calm behind the wheel. Frustrations and aggressive driving can dramatically increase a motorist’s risk of being involved in a car accident.

At Daggett Shuler Law, Winston-Salem and Greensboro, North Carolina Personal Injury lawyers, we care about the safety of all North Carolina drivers. Please remember to remain calm on the roads at all times. Do not allow frustration to put yourself and others in a dangerous position on the road.

If you or a loved one is injured in an accident involving an aggressive driver, call Daggett Shuler Law right away at 336-724-1234. When you call, you will speak with an experienced Winston-Salem and Greensboro, North Carolina Car Accident Attorney absolutely FREE. We will review every detail of your accident at no cost and fight hard to protect your rights.

When you call Daggett Shuler, you will speak with an experienced Winston-Salem and Greensboro attorney at no cost to you. We will investigate every detail of your situation and fight hard to protect your rights. At Daggett Shuler Law, you will never pay an attorney’s fee up front and you owe us nothing unless we recover for you.

 

Daggett Shuler is a law firm dedicated to protecting the rights of victims injured in accidents, workers hurt on the job and of people in need of Social Security Disability benefits.   For more information or for contact information for their Winston-Salem or Greensboro offices, visit www.daggettshulerlaw.com. 

How much insurance must business vehicles carry?

People in Cary, North Carolina, and the surrounding Raleigh metro area will probably know that, if they want to drive a car, they have to carry a minimum amount of insurance that will cover all or part of another person’s injuries. The minimum insurance requirement protects North Carolina citizens from negligent motorists by making sure that all drivers have some means of paying compensation should they cause an accident.

Unfortunately, these minimum limits are rarely enough to actually cover all losses in the event of a serious accident. Usually, a victim is left having to pursue the negligent driver directly or may be able to recover from his or her own insurance company if he or she purchased uninsured or underinsured motorist coverage.

It may come as a surprise to people that commercial vehicles, including large dump trucks, delivery trucks, vans, and others are, generally speaking, subject to the exact same minimum limits as are North Carolina residents who use their private vehicles only for personal reasons.

There are some exceptions to this general rule. One of the most common exceptions is that haulers of certain types of materials and just about any commercial vehicle that transports goods across state lines will effectively need at least $750,000 in coverage, if not more. The federal government requires the extra coverage as a condition for receiving permission to transport materials subject to the regulation of the federal government.

After getting over the immediate aftermath of a commercial vehicle accident, a victim who needs to receive compensation for lost income and medical expenses should be made aware of the type and amount of insurance that the responsible commercial driver carries. The information could impact the victim’s overall case strategy.

This post was authored by The Law Offices of John M. McCabe, P.A. in Cary, North Carolina ~  Dependable & Aggressive Lawyers Serving All Of North Carolina.   Since 1994, injury victims in the Raleigh area have been able to count on The Law Offices of John M. McCabe, P.A. to pursue the compensation and benefits they deserve in personal injury and workers’ compensation cases.  Whether you were injured in a car accident, on-the-job accident, dog bite, or as a result of a defective product, they will go to bat for the outcome you deserve. To schedule a free initial consultation with an attorney from their firm, please call  919-899-9852 or toll free at 877-320-1851. Their firm has been given the highest ratings for their legal skills and ethics, including being named a Super Lawyer, one of the Best Lawyers in America and one of the top trial lawyers in North Carolina.

OSHA reminds employers of summer temperature risks

Outdoor workers in North Carolina who do not have regular access to drinking water and shaded areas are at risk for heat exhaustion or heat stroke. This is the message being pushed heavily by the Occupational Safety and Health Administration in a campaign designed to cut down on the 2,630 American workers who developed a heat-related illness in 2014.

While workers who develop heat related illnesses are sometimes able to rejoin the workforce after a short period of rest, the consequences of heat stroke can be fatal. OSHA is urging employers to review their orientation and training programs and use resources like animated videos and illustrations to make improvements. The safety agency’s focus on training is a result of their investigations into heat-related incidents that have often involved workers with only a few days of experience.

Another potential hazard for outdoor workers during summer months comes from lightning. OSHA and the National Oceanic and Atmospheric Administration released a joint fact sheet detailing the risks posed by lightning during the summer months. Lightning kills about 50 people each year in the United States, and employers are urged to monitor weather conditions and forecasts frequently when their workers are exposed to the elements. The safety campaign highlights the unpredictable nature of lightning by pointing out that it can strike as far as 10 miles away from rainfall.

Filing a workers’ compensation claim and dealing with the claims process can sometimes be a frustrating experience for injured workers. This may be especially true if a claim is challenged by an employer or delayed for some reason. Attorneys with experience of workplace accident cases may assist injured workers with their claims, answer their questions about the potential benefits and advocate on their behalf during workers’ compensation hearings.

At the Law Offices of Lyndon R. Helton, PLLC, each of their attorneys brings nearly 20 years of legal experience to people throughout Western North Carolina.  They focus their representation on the needs of people with problems involving Personal Injury, Workers’ Compensation Claims, Social Security Disability, Criminal Defense, Traffic Violations and Family Law matters.  For more information, visit www.heltonlaw.com.