Health complications and their associated treatment are, in most cases, the most stressful experience that an individual will face. The worst case scenario therefore would be where standards are not met in such treatment and things, inevitably, go wrong.
The law provides individuals with a route to make a claim against medical professionals where care standards are not met. Such a claim would be brought under the heading of clinical negligence. Claiming for negligence in such a scenario is somewhat complicated as there are a number of legal principles that must be considered.
Legal Principles
Medical professionals owe what is called a ‘duty of care’ to those individuals to whom they provide a service. This means that a minimum standard of care is expected of them and that they must not act negligently. A claim for clinical negligence will arise in circumstances where this duty of care has been breached. Such a breach may occur, for example, where an incorrect medication dosage is administered resulting in injury or death, or where a failed or delayed diagnosis has been given.
While it is easy to see that a duty of care exists between a medical professional and his or her patient, it is more difficult in clinical negligence claims to prove that this duty has been breached. The reason for this is due to the fact that the medical profession is a highly specialised field and, in order for a clinical negligence claim to be successful, you must prove that there were errors in the treatment you received and that those errors caused the injury for which you are seeking compensation.
Further to this, not only must you prove that there were errors in your treatment, you must also prove that these errors were of such a nature that no competent medical professional would have made the same errors in the same set of circumstances. This can be a stumbling block for a lot of claims as it relies on the use of experts in the relevant medical field who have to give evidence that, if faced with the same set of circumstances, they would not have administered the treatment complained of. In other words, to prove that there were errors in your treatment, you must get another similarly qualified expert to give evidence that he or she would not have administered the same treatment.
This difficulty is tempered somewhat by the fact that you only need to prove that it was more probable than not that no competent medical practitioner would have made the errors in your treatment.
You must also consider the fact that you have to prove that the errors materially contributed to your injury. While there have been great advances in the field of medicine and medical treatment, there are still numerous instances where our understanding of certain conditions is lacking. A historical example of this, although not related to a claim in clinical negligence, is the various asbestos-related illness claims brought since the 1930s. It took a while for the medical profession, and thus the courts, to recognise that, on the balance of probabilities, those workers exposed to asbestos and asbestos fibres suffered a greater risk of contracting asbestosis or mesothelioma.
It can be seen, therefore, that this area of law is ever-changing.
Claiming for negligence
If you are claiming for negligence, the first port of call for those considering a claim would be to consult a solicitor. There are specialised clinical negligence solicitors who are experienced at making initial assessments of the strength, or otherwise, of your claim. Clinical negligence solicitors can investigate your claim and, where necessary, obtain the expert evidence required to support your claim. It must be noted that in many cases, if you wish to pursue a claim for clinical negligence, you must do so within a period of three years from the date of the accident or treatment. An clinical negligence solicitor can, however, provide advice in relation to this are there are exceptions to the three year rule.
February 1, 2013—Tracy, California—A construction worker was killed when an 1,800 pound piece of concrete fell on him, pinning him beneath its weight and crushing him, according to KCRA News
. The worker was engaged in cleaning out a concrete truck at the time of the incident.
The 47-year-old victim from Whittier was working on contract for Express Chipping at the time of the tragedy which happened on Linne Road. He was removing concrete buildup inside a truck owned by A&A Concrete supply when he was pinned inside the truck by falling concrete. He was pronounced dead at the scene by rescue workers.
Cal-OSHA is conducting an investigation into the incident.
Construction Accidents Prove Fatal for Many Each Year
Construction is still one of the most dangerous occupations according to information compiled by the Bureau of Labor Statistics. In 2011, 759 people were killed in construction accidents in the United States, or more than two per day. Most construction accidents involve falls, objects falling onto workers, or vehicle-related crashes.
Owners of construction firms and the owners of the sites at which they work both have an obligation to create a safe work environment for employees and visitors to the site. If they fail to do so, they can be subject to government sanctions as well as liability for personal injury.
Who Is Responsible For This Man’s Injuries?
This case may be complicated from a legal perspective because the man was apparently working for one company on another company’s equipment. That means that the liability may stem from negligence on the part of the employer in allowing the man to work in dangerous conditions, from the owner of the truck for creating the dangerous conditions or both.
A personal injury lawyer must examine the facts of the case to make a determination as to who holds liability for the man’s death in this case. Once that is established, the family may be able to file a wrongful death suit against the person or company that is deemed responsible for the worker’s death. Wrongful death suits usually include damages for lost future earnings as well as loss of love and companionship.
What Should I Do If I am Involved in a Construction Accident?
If you are hurt in a construction accident, your first responsibility is to seek medical attention. You must be sure that your health is not in danger before considering any other possibilities. However, once you have ensured that your health is being taken care of, you should consider your rights to file a personal injury suit against the employer, the work site owner, or both.
A personal injury attorney can help you recover damages for your injuries including medical bills, sums for your mental anguish, pain and suffering, and lost wages while you recover. You may also be entitled to other types of compensation so that you can pay for increased living expenses or other costs. Talk to a personal injury attorney today to protect your rights.
Most people are not aware of the incredibly large number of motor vehicle accidents and fatalities that occur every year in the United States:
- According to the National Highway Traffic Safety Administration, in 2010 there were 32,885 motor vehicle traffic crash fatalities in the US.
- Additionally, there were an estimated 2.24 million injuries as a result of these motor vehicle crashes.
- Every year in the past there have been at least 10 million auto accidents and in some years more than 13 million.
- According to projections, there will be at least 10 million more accidents every year.
With so many accidents occurring every year, it is quite likely that you have already witnessed one or more accidents already. And it is even more likely that you will witness one or more accidents in the future. The question is, if you witness a car accident, what are you supposed to do, if anything?
Practical Steps to Follow if You Witness a Car Accident:
- If you are in your car and you witness a serious motor vehicle accident, maintain a safe distance from the vehicle(s) – suggestions range from 100 ft. to 1000 ft. – and pull over to the side of the road.
- Turn on your emergency blinkers.
- If you have a phone, immediately call 911 and report the accident. If you don’t have a phone, ask another person to call 911.
- If you have road flares, you may choose to place them several hundred feet in front of and behind the vehicles. Make absolutely sure that the flares do not come into contact with leaking gasoline on the ground. If there is a risk of an explosion from leaking gas, do not light them.
- If there is an injured person in a vehicle who cannot get out, or if they are unconscious, many experts recommend not moving the person because of the possible harm that may result. It is usually recommended, if possible, to wait until professional emergency help arrives.
- However, if there is a fire and a very likely possibility of an explosion, or if there are other compelling reasons such as intense bleeding, this obviously raises other concerns.
- Most jurisdictions have “Good Samaritan Laws” that protect certain persons from liability if they render aid in emergency situations. In some jurisdictions, the Good Samaritan Law protects all persons. In other jurisdictions the Law protects only professionals such as emergency technicians and medical doctors.
- Some Good Samaritan Laws actually require a person to offer reasonable aid at the scene of an emergency situation. What is “reasonable aid?” In some circumstances, calling 911 is all that a person can do. Obviously not everyone is capable of offering physical assistance, nor should they.
You may choose to take photographs of the accident scene with your cellphone camera, as well as take notes of what you observed. Record the license plates, makes of cars, persons in the vehicles, and other important points. When help arrives, you may offer this information to the authorities. You may be issued a summons to testify as a witness if there is a future case in court. You also may be questioned by attorneys, insurance adjusters and/or other persons who have a legitimate interest in the accident. Your observations may be of extreme importance to the parties in the case and to law enforcement. Just be as clear and truthful as possible. If you or someone you love is involved in a car accident caused by the negligence of someone else, contact an experienced Dallas accident attorney for a free legal consultation.
Serious accidents can change a person’s life. Injuries suffered in accidents can eliminate one’s ability to walk, bend, or perform other basic functions. This can affect one’s ability to do their job. If the injured party was not at fault in the accident, he or she should consider discussing his or her options with local counsel.
Strict liability may be imposed for ultra-hazardous activities or in limited circumstances, but the usual cause of action for personal injury is negligence. In order to prove negligence, a plaintiff must prove that the defendant had a duty of care, that the defendant breached that duty of care, and that that care was the actual and proximate cause of his or her injuries. Every element is subject to contention in court.
Duty of Care
One can assume a duty of care or there can be a special relationship involved. Generally, individuals are expected to act reasonably when performing an act that may be reasonably foreseen as harmful.
Breach
Courts use a reasonable person test to determine whether an individual has violated his or her duty of care. According to the attorneys at www.miamiaccidentlawyers.net, reasonable behavior is subjective and the jury will decide whether the conduct comports with that test. If the defendant did not act with “caution such as a man of ordinary prudence would observe,” the defendant may have breached his or her duty.
Causation
Causation is actually split into two separate elements: actual cause and proximate cause. Proving actual cause is rarely not normally an issue. But for the defendant’s actions, the injury would not have occurred. In the event of a straightforward injury like a traffic accident, proving that the careless act was the actual cause is relatively simple.
Proximate cause is often more challenging. The test is whether the injury was reasonably foreseeable from the breach of the duty of care. Intervening events can greatly diminish the foreseeability of a particular consequence. For example, it is reasonably foreseeable that spilling water on a tile floor can lead to someone slipping and falling on it. It is probably not reasonably foreseeable that water spilled on the floor will lead to a severely hydrophobic person several feet away screaming and running out the door, knocking down another individual in the process. In that case, the panicked hydrophobic might be considered a superseding intervening factor, and the injured party may recover from that person but not the individual who spilled the water.
Proving causation gets easier as intervening factors decline.
Injury
The very injury itself is the final element of negligence and a possible point of contention. If an individual is clearly injured and the scope of that injury is known, then there will usually not be a dispute regarding this element.
However, there may be disputes as to whether there is an injury at all. In that case, hiring expert witnesses to testify that an injury has occurred will be necessary. Additionally, if an individual has a preexisting injury that becomes aggravated by a negligent act, he or she is only entitled to the difference between the existing injury and the new injury.
Injured parties should not suffer from other parties’ negligence. If you think you have a legitimate personal injury claim, contact an attorney for a consultation.
Author: Chris Bennett is a legal researcher and regular contributing author for www.miamicaraccidentlawyers.net. A personal injury claim is a serious issue and potentially a financial and physical nightmare. Miami Car Accident Lawyers will help you find an attorney that will provide defense for those involved in accidents, wrongful death, manslaughter, and robbery cases, to name a few.
