Frequently Asked Questions
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What is a traumatic brain injury and what do the different grades of severity mean?
A "traumatic brain injury" is an injury to the brain that disrupts its function. The Brain Injury Association of America defines it as "an alteration in brain function, or other evidence of brain pathology caused by an external force". A "mild" traumatic brain injury involves a brief or no loss of consciousness. The individual may seem dazed or confused at the time of the injury. Symptoms may include headache, irritability, sleep disturbance, fatigue, memory issues or depression. The symptoms may last for days or persist for extended periods. A "moderate" traumatic brain injury involves a loss of consciousness from a few minutes to a few hours. The individual may experience confusion which lasts for days to weeks. Impairments of behavior, cognition and physician abilities may last for months or become permanent. A "severe" traumatic brain injury typically involves extended periods of unconsciousness lasting days to weeks. Victims of severe traumatic brain injury may make some recovery, but they typically suffer significant permanent impairments.
If I'm injured while working for the railroad by a defective part of a locomotive or car, do I have to be able to prove the specific defect to have a case under the FELA, Locomotive Inspection Act or Safety Appliance Act?
The FELA is the general law which protects railroad workers who are hurt while working for a railroad. The Locomotive Inspection Act (LIA) and Safety Appliance Act (SAA) are amendments to the FELA. Those regulations provide generally a railroad is strictly liable to an employee injured by a defective part or condition on a locomotive or railcar. This means if an employee establishes that such a defect caused his or her injury, any contributory negligence or lack of reasonable care on the part of the railroad are not essential to the claim. The claim focuses solely on the defective part or condition. There are two methods for an employee to establish a part of a locomotive or railcar was "defective" for LIA or SAA coverage. The first is through evidence of the cause of the defect in the equipment, such as a missing pin in a coupler. The second is through evidence the equipment did not "operate as intended" at the time of the injury, such a brake wheel which unexpectedly catches or releases. The employee's description of the failure of equipment may be enough to establish a case under these circumstances, but the more supporting evidence the better, particularly testimony from eyewitnesses to the failure of the equipment.
Does the fact I was hurt while working for a railroad automatically qualify me for benefits under the Federal Employers Liability Act (FELA)?
The FELA is not a workers' compensation law which automatically covers employees that are injured while working for a railroad. It is a "negligence" based law which means the employee must prove some type of negligence on the part of the railroad contributed in any way, "even in the slightest", to the injury suffered by the employee. Although the FELA does not provide automatic coverage to employees injured while working for the railroad, the U.S. Supreme Court has directed courts handling FELA cases to keep in mind the Congressional intent of the stature, protection of railroad employees and to apply the protection of the laws liberally. With this direction in mind, courts have interpreted the FELA to require a railroad to provide employees with a reasonably safe place to work, reasonably safe and suitable tools, and well as adequate assistance. These general protections of railroad workers are in addition to safety regulations such as the Locomotive Inspection Act and Safety Appliance Act.
If I am hurt while working for the railroad do I need to file an accident/injury report with the company to have a case?
The short answer to this question is "No". A FELA case does not typically depend on whether an accident report was filed with the company, but failure to do so may have other consequences. Most railroads have internal rules that require the filing of an accident report by an injured employee (if they are physically able) prior to leaving duty on the day of the injury. Failure to comply with this rule may result in company-imposed discipline. Usually an accident report also helps in the investigation of a claim. It contains specific factual details about the injury such as the location and identity of the equipment involved in the incident. If any question arises whether such a report should be filed, it is a good idea to consult with union leaders to discuss the facts surrounding the specific incident. They are typically knowledgeable of the reporting requirements of the railroad. It is the rule of the particular railroad that require the filing of an accident report, not the FELA. So whether a case exists which we could provide help to an injured worker does not depend on the filing of an accident/injury report.
How does someone put a value on a nursing home neglect or abuse lawsuit?
The determination of value in a nursing home lawsuit is difficult to determine and there is no single answer to that question. The factors which are considered include the following:
(i) The effects on the health of the resident in question;
(ii) The age of the resident;
(iii) The actual injury suffered by the resident; and
(iv) If death occurred, how long the resident was actually at the nursing home,
and the relative health at the time of admission.
An experienced nursing home attorney will be able to advise a resident or family as to the guidelines or ranges of value, which again will ultimately be resolved through settlement or jury verdict should the case proceed to trial.
What steps should I take if I believe a loved one is being abused or neglected in a nursing home?
There are several measures that can be employed if a family member or a friend believes such neglect is occurring in a nursing home.
Step 1 involves making a complaint to the regulatory board or agency in the state where the nursing home is located. Such a complaint can trigger a review by the state to determine minimum compliance with state promulgated regulations governing the care of residents in the nursing home.
Step 2, a civil lawsuit can be filed on behalf of the family or resident if neglect is suspected, which will then be adjudicated and resolved through the civil court system.
Finally, if the abuse is of such a severe nature that criminal negligence may be at issue, a criminal complaint can be brought through contact with the local district attorney’s office.
How is nursing home neglect defined?
Generally speaking, nursing home neglect exists when a nursing home fails to provide the care, services and supervision necessary to adequately provide for the needs of its nursing home residents.
This care includes the provision of food, medicine and physical attention needed to prevent the onset of sickness.
A particularly common condition affecting nursing home patients is the onset of bedside sores, known as decubitus ulcers, which often result from the failure to properly turn nursing home residents.
If I am not satisfied with the results of my surgery or treatment, does that mean that I have a medical malpractice claim?
There are no guarantees about medical outcomes in any surgery or treatment provided to a patient. The question of whether there is medical malpractice is ultimately determined through evaluation by similar physicians or health care providers in the field at question. In other words, if you believe there was medical malpractice during an open heart surgery, a thoracic surgeon would give an opinion as to whether the actions of the surgeon who performed that surgery were appropriate.
Who actually testifies at a medical malpractice trial?
Typically, the parties to the case (the plaintiff and the defendant physician) will give their testimony (i.e., their side of the story as to what happened). In addition, the great majority of medical malpractice cases require the testimony of expert witnesses. These witnesses are physicians or other health care providers who will give testimony as to whether the health care provider being sued complied with what is known as the “standard of care.” The standard of care essentially is defined as what a reasonably prudent practitioner would do in similar circumstances. These expert witnesses are extremely critical in explaining to and educating a jury as to the medicine involved in the case and whether the defendant was negligent in providing the health care services at issue in the trial.
How long does it take for a medical malpractice case to come to trial?
Generally speaking, it will take 1½ - 2 years for your case to come to trial, measured from the date that the complaint (the actual paper filed with the court to start the case) is filed with the court. During that time period, the lawyers representing the plaintiff (the injured party) and the defendant(s) (the doctors/hospitals/or other healthcare providers) do discovery and prepare the case for trial. The possibility during that time period always exists that the parties will agree to settle the matter, therefore, eliminating the need to proceed to trial.