Foreseeability and the Sudden Medical Emergency Defense

car accident lawyerGenerally, when a driver causes an accident due their loss of consciousness while driving, they avail themselves of the sudden medical emergency as a defense as long as he can establish that he was in fact unconscious at the time of the accident, and that this loss of consciousness was unforeseen. See, e.g., Moore v. Presnell, 38 Md. App. 243,247 (1977);  Timothy E. Travers, Annotation, Liability for Automobile Accident Allegedly Caused by Driver’s Blackout, Sudden Unconsciousness, or the Like, 93 A.L.R.3d 326 (2005).

The courts differ as to what constitutes foreseeability, but they have used factors such as medical testimony that the driver could not have foreseen the loss of consciousness, whether or not the driver’s doctor had warned him not to drive, witness testimony that the driver lost consciousness suddenly, and the statements of the driver at the scene of the car accident. Id.

One of the most extensive foreseeability tests comes from Hawaii. In the case of Cruz v. United States, a postal worker lost control of his postal truck when he suddenly fainted at the wheel due to a heart blockage. Cruz, 987 F. Supp 1299, 1301 (1997). The test requires balancing among the following factors: 

  1. Extent of driver’s awareness or knowledge of that condition that caused the sudden incapacity
  2. Whether or not the driver sought medical advice or was under a physician’s care for the condition at the time of the accident
  3. Whether the driver has been prescribed, and has taken medication for the condition
  4. Whether or not a sudden incapacity had previously occurred when driving
  5. The number, frequency, extent, and duration of the incapacitating episodes prior to the accident while driving, and otherwise
  6. The temporal relationship of the prior incapacitating episodes to the accident
  7. A physician’s guidance or advice to the driver regarding his ability to drive, and
  8. Medical opinions regarding the nature of the driver’s condition, adherence to treatment, foreseeability of the incapacitation, and any potential advance warning which the driver would have experienced immediately prior to the accident.  

Id. at 1303 (citing to McCall v. Wilder, 913 S.W.2d 150, 156 (Tenn. 1995) in which the Supreme Court of Tennessee held that a driver who suffered a seizure and struck another vehicle as a result was not entitled to summary judgment as a matter of law, because a reasonable mind could differ as to whether the seizure was foreseeable).

Consequently, when facing a defendant invoking the sudden medical emergency defense, it is critical that plaintiff’s counsel obtain extensive discovery regarding the Defendant’s prior medical history, via both party discovery and subpoenas directed at identified medical facilities.  As the lawyers at the Law Offices of Ryan Quinn, PLLC, explain, generating evidence that the claimed emergency was not genuinely unforeseen is vital to prevailing once this defense is asserted. 




Negligence Lawyer Delray Beach, FL

Negligence Lawyer Delray Beach, FL

Negligence-Lawyer-Delray-Beach-FLEvery client deserves to have an attorney that they can trust to guide them through their case, the way a qualified negligence lawyer in the Delray Beach, FL community is capable of doing. However, there are times when lawyers have acted negligently with their case. If you have found that your lawyer has committed legal malpractice, it may be advisable to consult a legal malpractice lawyer about your options. The trusted Law Office of Eric H. Luckman, P.A. understands that this can be a difficult decision to make, so our team is committed to getting your existing case on the right path. 

Negligence lawyer Delray Beach, FL

It can be hard to decide what the best course of action is when you’re faced with the challenge of your lawyer acting negligently. Clients trust their lawyers to support them during an already stressful and exhausting time. It’s a unique situation that no client wants to find themselves, but fortunately there are ways to overcome the hurdle and prevent any threats to the success of an impacted case. 

What is Legal Malpractice? 

Legal malpractice occurs when your current lawyer fails to adhere to their legal responsibilities, or fails to conduct themselves in a manner that another lawyer would do in similar circumstances. This can lead to preventable economic damages and negatively affect the trajectory of a client’s case, introducing unnecessary complications. To prove malpractice, a skilled negligence lawyer trusted by the Delray Beach, Florida community will have the competence to show critical evidence of what a case’s outcome could have been if it was handled correctly initially.  

Signs of Legal Malpractice

Lawyers can commit a number of acts that would be classified under legal malpractice. To file a legal malpractice claim, know some of the rule violations below:

  • Ignorance of laws
  • Poor planning
  • Improper evidence evaluation 
  • Conflict of interest
  • Failure to follow instructions
  • Clerical errors
  • Failure to attend appointments, meetings, and hearings
  • Libel or slander
  • Loss of files and inaccurate documentation

Your channel of communication with your lawyer should be open throughout the duration of your case. They should not withhold information from you that you have a right to know. Another violation is when a lawyer delegates work to another employee or person who shouldn’t have access to your case details.

Building a Strong Case for Your Legal Malpractice Claim

It’s best to meet with a negligence lawyer with your compiled evidence as early as you can. There are several ways an attorney can show elements of legal malpractice, such as proving that your lawyer had the duty of providing you with legal representation, violated that duty by committing specific negligent actions, and as a result of their actions caused emotional harm and economic damages. 

Consult an Experienced Negligence Lawyer 

Though proving legal malpractice claims can be challenging, having a qualified and competent lawyer you can trust by your side can ease the pain from the experience. If you want to start building your case, begin your free consultation with a reputable negligence lawyer in the Delray Beach, Florida area now.

How Non Payment of Child Support May Result in Criminal Charges

If your child’s other parent is delinquent in their payment of child support to you, no doubt you are experiencing frustration and a mix of other emotions. A priority concern may be how you will provide your child with what they need if the child support payments are not made in full and on time. If you have made attempts in the past to rectify the situation with the other parent to no avail, you may be at wit’s end. Because a child support agreement is a legally binding contract, you may be best served by hiring a family lawyer, like from Scroggins Law Group, PLLC. Having a legal advocate on your side may result in the other parent coming forward with the child support payments that they owe you. If they do not do this then your lawyer can assist you in petitioning the court to force the other parent to comply. That could result in them being charged with a criminal offense and possibly going to jail if they do not conform to the child support agreement that is in place.

Potential Penalties for Non Payment of Child Support

As mentioned, a child support agreement is a legally binding contract. As such, the failure by either party to adhere to the agreement may result in serious consequences, particularly for the parent who is not making their required child support payments. Should the issue be presented to the family law court judge, they may rule that the parent who is not making their payments on time and in full may face any or all of the following consequences:

  • Garnishment of their wages. Every time they are to be paid, a court authorized amount of money will be withdrawn from their wages before they receive their paycheck.
  • Withholding of funds from their income tax refund. The amount of money owed to the other parent may be withheld in part or in full from the refund.
  • The loss of driving privileges. They may lose their driver’s license indefinitely or permanently as decided by the judge.
  • The requirement to pay one or more fines.
  • Incarceration.

The Possibility of Criminal Charges

As a legally binding contract, the non-conformance to a child support agreement could result in jail time if the judge deems it is appropriate. Non-conformance of the agreement automatically puts the parent in contempt of court. Criminal charges must be instigated by the court; they cannot be brought by the custodial parent or their child support lawyer.

Turn to a Child Support Lawyer that Families Trust

A child support lawyer can assist you through this difficult time. They can guide you through the legal process, inform you of your rights and legal options, and help you to obtain the best possible outcome. If court action is necessary, they can assist you with this as well and provide you with the experience and insight that you need. Consider contacting a child support lawyer to help you and your child protect your best interests.

The Process of Filing a Personal Injury Lawsuit

If you are planning to file a personal injury lawsuit against another individual or entity, you probably have some questions. How does the process go? What do you need to do now to further your case? It may be best to get those answers from your lawyer, but the following should help you understand the basic process for filing a personal injury lawsuit.

  1. Prepare and File the Complaint

The first thing you’ll do is prepare and file the complaint against the defendant. The complaint is a legal document that goes over all the facts you have to support your personal injury lawsuit. You’ll identify both parties in the case, including yourself and the defendant, and will list the court where you’re filing the lawsuit.

Next, you’ll list out explanations behind each allegation. These are typically in numbered paragraphs so it’s easy to understand each point. You should go into as much detail as you think is necessary to prove your case. You will also list what you’re seeking in damages from the defendant.

Finally, you will need to sign the document. After it is all complete, you will take it to the court and pay a filing fee.

  1. Service and Response

It’s essential the defendant receives your complaint. If not, the process will not be able to move forward. Most courts have someone you can pay to deliver the complaint to the defendant. When the documents are received, the individual or entity has a certain amount of time to respond to the complaint. If you have a hard time delivering the complaint, either because the individual is being difficult or you can’t physically find him or her, the court may grant you an extension of time to get the job done.

Once the defendant has read over the documents, he or she will need to respond. This might include filing a motion to dismiss the case altogether. It might also include an answer to the complaint. The answer would include a response to each of your numbered paragraphs.

  1. Negotiate and Settle

Through your lawyer, you might go back and forth a number of times while negotiating a settlement. There may be offers and counter offers, and your lawyer can help you understand what is fair and what should be negotiated. When a settlement is agreed upon, the case will be closed and you will receive compensation.

Contacting a Lawyer for Assistance

After a personal injury, the plaintiff might be unaware of how the process of filing a lawsuit works. If you’re in this situation, contact a personal injury lawyer, like The Law Offices of Konrad Sherinian, LLC to learn more about whether you have a case and to see what needs to be done to get started.

Can Heirs Recover Punitive Damages Against a Driver Who Causes Death?

Personal Injury Lawyer

When your loved one dies due to someone else’s negligence or misconduct, you have the right to sue that person for your loved one’s wrongful death. If the death resulted from injuries your loved one sustained in a motor vehicle accident, you would sue the driver of the vehicle that caused the accident.

Wrongful death is a civil action, meaning that money damages are the only thing you can recover from the defendant if you win your lawsuit. While no amount of money can make up for losing your loved one, many family members find that winning a wrongful death lawsuit gives them not only a sense of closure, but also a sense that the defendant received justice, at least financially.

Types of Damages

Generally, you can recover two types of damages in a wrongful death suit: economic and noneconomic. Your economic damages consist of such things as bills you actually paid on the decedent’s behalf, including ambulance bills, hospital bills, funeral bills, and more. Your noneconomic damages are more subjective, but no less real. For instance, noneconomic damages include such things as the following:

  • Your loss of your loved one’s support
  • Your loss of his or her companionship
  • Your loss of his or her advice and counsel
  • Your mental and emotional anguish over his or her death

Punitive Damages

In some situations, you may also be able to recover punitive damages. These are damages that a court awards you above and beyond your economic and noneconomic damages. Their purpose is to punish the defendant, not to compensate you for your losses. 

Courts don’t always award punitive damages. In fact, it’s the exception rather than the rule. To receive this type of an award, you will need to present clear and convincing evidence at trial that the defendant’s actions or failure to act that caused the accident were deliberate, willful, wanton, or reckless. In other words, was he or she driving drunk? Was he or she driving at an excessive speed? Was his or her behavior particularly egregious?

Why You Need an Attorney

Each state has its own laws regarding wrongful death lawsuits. This is why you need to consult with a lawyer, like a wrongful death lawyer from Kamper & Estrada, PLLC. He or she will know the specific laws that apply to your state, such as which family members can file such a suit, how long you have after the death to file, and whether or not it sets limits on the amount of damages you can recover.

How To Handle a Divorce in Different States

Divorce Attorney

Not everyone is still living in the same household when they decide to get divorced. Some couples don’t even live in the same state anymore! If that’s the situation you’re in, you might wonder how to handle the divorce being in different states. As a divorce attorney in Collin County, TX, from a law firm like Scroggins Law Group can explain, there are some complications to consider, so you should speak with a lawyer about the specifics.

Residency Requirements

Getting a divorce when you and your spouse live in different states will require a look at the residency requirements for the state of at least the spouse who is filing the paperwork. Residency requirements are different by state, but they must be met in order to file. For example, if you live in a state with a six month requirement, it means you have to live in that state for at least six months before you can file for divorce. If you and your spouse both moved out of your home state and are both living in new states, it may take a little longer to get divorced.

Jurisdiction Over the Case

Generally, the state where a spouse files for divorce has jurisdiction over the case. If you end up going to court, you will go to court in the state where the divorce was filed. Keep this in mind if you and your spouse are trying to decide who will file. If your spouse files in another state, you’ll either have to hire a lawyer in that state, or you’ll have to hire a lawyer near you and pay for him or her to travel for legal proceedings. You will also have to pay for your own travel. For these reasons, it might be better to file in your own state.

State Laws

Because the state where the divorce is filed will have jurisdiction over the case, you have to realize those state laws will apply to your divorce. You may want to look at the differences between the two states and how they handle divorce. For example, some states divide property with a 50/50 mindset. Everything is split evenly. In other states, property is divided with a standard of “equitable distribution.” The circumstances of the couple, how they acquired the property and other issues would be considered.

Child custody is also handled differently between states. You should understand how both yours and your spouse’s states handle this situation, as it may be the most important aspect of your divorce.

Contact Your Divorce Lawyer Today

Getting a divorce when you and your spouse live in different states doesn’t have to be difficult, but you should be smart about it. Contact a divorce lawyer today to learn more about it.

What NOT to Do After A Car Accident

Car Accident Lawyer

If you’ve been involved in a car accident, it is extremely important to know what steps to take immediately after the accident. However, few people realize that it is just as important to know what NOT to do. Read on to learn what you should NOT do after a car accident.

Don’t Leave The Scene

Legally, you are obligated to stop if you have been in an accident. Failure to stay at the scene could lead to serious criminal charges if anyone was injured. Besides, you will need to exchange insurance information with all parties involved, take photos of the scene, and speak with the police officer that is making the accident report.

Don’t Forget to Call the Police

This goes for both minor fender benders and 10 car pile-ups. If there has been any sort of accident, you will want the police to come and make a report. In some states, not reporting an accident can be considered an offense. Plus, the police officer wasn’t in the accident and isn’t experiencing the same intense emotions as you, so they are more able to document any details that you might have forgotten, like the weather, road conditions, witnesses, etc. In this way, a police report can help strengthen property damage or a personal injury claim.

Don’t Admit Fault

Even if it was obviously your fault, do not admit so and do not profusely apologize. Remain calm, help others in need, and wait for the authorities to arrive and make a report. Do be honest when giving a statement to the police but avoid phrases like, “it was all my fault.” Such statements may damage any potential insurance claim.

Don’t Lose Your Temper

When someone puts you and your family in harm’s way, it is easy to let your emotions get the best of you. But getting angry is not productive or helpful in the aftermath of an accident. Do not be aggressive or confront any of the other parties involved.

Don’t Refuse Medical Treatment

Get examined by a medical professional right away, whether that is a paramedic on the scene, your primary care doctor, or a trip to the hospital in an ambulance. The most important thing is your health and well-being.

Don’t Forget to Collect Evidence

Make sure to get, at a minimum, the following information from the other driver(s) involved: name, phone number, license plate number, and insurance card information. Also, make sure to try and get photos and/or videos of the cars involved, the weather conditions, the road conditions, even a bank sign that might indicate date and time.

Did any bystanders witness the accident? Ask if the witnesses would be willing to provide their contact information and give statements to the police.

If you’ve been injured in a car accident, give Kamper & Estrada, PLLC a call. Our experienced personal injury attorneys can help you navigate what to do, and what not to do.

Defining a Wrongful Death Action

Wrongful Death Lawyer

Dealing with the trauma of the unexpected death of a loved one is already a difficult thing to deal with on its own. It’s even harder when that loved one was someone you depended on for financial support. Many people currently live in two-income households, which means the sudden loss of one of those incomes equates to significant financial hardship. Unfortunately, this leaves you now dealing with a slew of emotional and monetary challenges, and having a hard time understanding what you should do next if you believe there was a wrongful death.

A wrongful death typically results from the negligence of another party. The negligent party can be an individual, corporation, or government entity, but they must be at fault for the untimely passing of a loved one to permit legal action.

When preparing a wrongful death action or lawsuit, you must understand the liability rules in your state. A wrongful death lawyer can help you understand such specifics and how they impact your potential claim. Keep in mind that when filing, you want your damages to be as specific as possible because the defendant will do everything in their power to limit their perceived responsibility.

Filing Damages

When determining the damages that you will file in your case, think about the emotional and tangible losses. You can file for pain and suffering or loss of companionship. You can also file for lost future income and to recover medical expenses.

However, while it is crucial to be careful and specific in determining damages, do not delay your decisions too long. Many states have a statute of limitations on wrongful death actions, typically two years. It is vital to file within the appropriate timeframe or risk the opportunity to recover financially.

Seeking Experienced Counsel

A wrongful death lawyer is not the same as a personal injury lawyer. Yes, the damages are similar, but that is because both cases are considered civil actions. When discussing wrongful death, you want to find an attorney with experience in estate law and negligence.

You will want to find a lawyer who advertises their expertise in wrongful death actions and does not shy away from providing references or statistics. It is also imperative that you find a lawyer who can speak on your level. 

You need to understand the strategy for your claim and the reasoning behind specific decisions. If you interview an attorney and they seem frustrated with having to explain their process, then find someone else to work with.

If you’ve been considering speaking with a professional, you might want to contact a wrongful death attorney from a law firm like Johnston Martineau, LLP to discuss your claim’s specifics and the potential for success. Figuring out how to move forward in life without your loved one is challenging enough without the added financial hardship.

How to Prepare Your Children for Divorce

Getting a divorce is never easy, but for some couples, this may be the best option they have. Separating from a spouse is already difficult enough on its own as it is, and when children are factored into the equation, things can often go south quickly. However, there are ways to prepare your children for the separation so things can run as smoothly as possible, not only during the separation but afterward as well. For each child’s sake, it’s imperative to keep the peace between you and your spouse, talk to your children honestly, and make a plan for the aftermath.

First in foremost, keeping the peace with your current spouse is extremely important. No matter what might be the reason for the divorce when children are involved you must remember your spouse is still the other parent. Arguments and fights will only stress the children out, which could result in them blaming themselves for the split. During the divorce process, it is important to ensure that things between you and your spouse remain calm. There are some steps you can take that can beneficial to both you and your child during this hectic time.

These steps include respecting your spouse, being open and honest about the situation, and not arguing in front of the child. Although initially, it may not seem like it, the way you act towards your spouse in front of your children will and does have a direct correlation with the child’s relationship to that specific parent and you as well. It is never wise to put the children in a situation where they feel that they must choose sides between their two parents. Another reason you should be honest with your children is that they will most likely have questions and they will probably be confused. Keeping an open mind and listening to how your children feel and what they have to say can make all the difference. And don’t forget to take into account that children seeing arguments will impact how they feel about the situation in a negative way. 

Moreover, not arguing in front of any children should be a priority. You should talk to your children honestly about the divorce but fighting with your spouse will only do more damage than good. You and your spouse are still the adults in the situation so you must act as such. Before talking to your kids about anything talk to your spouse first. Make sure the two of you are on the same page so when you talk with your children about the situation, they won’t feel the need to pick a side since you and your spouse are already in agreement. By no means does this mean you and your spouse have to agree on everything, but when it comes to discussing matters with your children you must do your best to work together. 

Another factor to take into consideration is the age of your child or children. If they are younger (4-9 years old), then the explanation process will be different than if you had a 10-13-year-old, or a 14-17-year-old. When explaining the divorce to younger children try and keep things in simple terms. The reason why the divorce is taking place may not be a pivotal talking point during the conversation if the children are younger. On the other hand, if the children are already in their teens then the reason why may be more of a talking point. However, no matter the age of the children, you should make sure to tell them it is in no way their fault and that you will still be there to love and support them no matter the circumstance.  

Furthermore, working with your spouse even when the divorce is over is an absolute must. It won’t be easy but when children are involved you cannot simply take your children and leave. Even in the most extreme situations (unless physical harm to you or the children is a possibility). An effort must be made to keep the children in contact with both parents. Kids need to have a relationship with both of their parents, and if one of those relationships suddenly gets severed because of a parental argument during the split the damage done to the children will always be apparent. Things such as trust or abandonment issues can occur, so taking things slow and steady without making rash decisions has to be done. Making a plan with your spouse about meet up times, living situations, and shared visitation are all essential when deciding how things will go on after the divorce. Not only for you and your spouse but again for your children as well. Meeting with a divorce attorney from a law firm like Brandy Austin Law Firm, PLLC could help you and your spouse put these types of arrangements and schedules into place to ensure your child or children have a sense of stability.

Despite any reasons for getting a divorce your children’s happiness and well-being should be your top priority. If done properly children can make it through a parental divorce without being hurt. But this is all up to the parents and the decisions they make. Whether they decide to fight or to work together for the betterment of their children. This is why parents must keep the peace, talk honestly with their children, and make a plan when deciding to split.

How To Receive Pain and Suffering Compensation After a Workplace Injury

Construction Accident Lawyer

When you are injured at work, you are typically entitled to workers’ compensation as workers compensation lawyers, like from Hickey & Turim, SC, can explain. While there are some exceptions, most workers in the United States have this benefit. If you are an independent contractor, maritime worker, domestic worker or agricultural worker, you may not have coverage. You also may not have coverage if you are your employer’s only employee, as businesses with a certain minimum of employees are not required to purchase workers’ compensation.

When one receives workers’ compensation, there are certain benefits he or she is entitled to. This includes coverage for medical costs, lost wages, ongoing care, illnesses and other similar expenses. It does not cover pain and suffering, however, so how can you receive this compensation if you feel you deserve it?

Suing Your Employer

In most cases, when you receive workers’ compensation, you lose the opportunity to sue your employer. There are some instances in which this does not apply. For example, if your employer was breaking a workplace rule, and that resulted in your injury, you might be able to receive workers’ compensation and sue the employer. You might also be able to sue the employer if he or she allowed the horseplay that caused your injury, or if the employer intentionally hurt you.

Suing a Coworker

You might have a chance to sue a coworker for your injury. If the individual was upset with you and decided to attack you, resulting in injury, you might be able to receive workers’ compensation and sue the individual as well. If he or she intentionally broke a rule at work, and that’s what resulted in your injury, you might have a chance to sue him or her for that.

Suing a Third Party

If a third party was somehow involved in your accident, you might be able to sue him or her for pain and suffering. For example, perhaps your injury included a piece of equipment that malfunctioned while you were performing your work duties correctly. You might discover the equipment manufacturer knew about the malfunction, but failed to inform your employer. You could sue that manufacturer for pain and suffering, as well as other damages.

Calling a Lawyer

You may not know where to turn when you are injured on the job, but a workers’ compensation lawyer can help you find some avenues where you can seek compensation. Call a workers’ compensation lawyer today to learn more and to get started with your case.