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Articles Tagged with law

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By Kyle Roby
English, Lucas, Priest and Owsley

emergency-room-photo-300x199When you are injured in an accident, you may sue to recover the costs of reasonable and necessary medical treatment following the incident. How do you determine what those costs are and the reasonableness of them? Is it the medical bill itself? Is it what your health insurance paid? Is the other side entitled to a credit or set-off if the cost of your medical bills are reduced by insurance payments or the hospital charges a different rate for your health insurance? These are some of the questions you may have when trying to determine what is the reasonable cost of medical treatment in a personal injury case.

In most states, Courts will follow what is known as the collateral source rule. The collateral source rule is a rule of evidence that prohibits the admission of evidence that the plaintiff or victim has received compensation form other than the damages sought against the defendant. Typical examples of a collateral source are medical bills paid by health insurance or payments made by workers compensation.

Recently, the Tennessee Supreme Court was faced with the question of what was the reasonable cost for medical services in personal injury cases. This case, Dedmon vs. Steelman, is an important win for Tennessee patients and personal injury victims. The Tennessee Supreme Court heard the case in April and issued a ruling on November 17, 2017.

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Scooter

Most personal injury lawsuits settle out of court, but some do proceed to trial. Most often, this happens because the parties disagree as to who was at fault, the amount of damages to which the plaintiff is entitled, or both.

When one party is displeased with the jury’s decision, he or she has the right to appeal the trial court’s entry of judgment on the verdict to a higher court. However, much deference is afforded to the jury’s verdict, and the burden is on the appealing party to convince the appellate court that a legally reversible error was made in the lower court.

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tractor trailerLawsuits arising from 18-wheeler accidents can be very complex. One reason for this is that the tractor and trailer may be owned by or insured by different entities. This greatly complicates the path to recovery of a fair settlement or judgment for a person injured in a semi-truck wreck.

In a recent case, a rather unique issue arose. The owner of a certain tractor-trailer requested liability insurance on both the tractor and the trailer, but the insurance agent accidentally left the tractor off of the list of the trucking company’s vehicles when she sent the application to the insurance company.

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iphone calendar in handSince there are so many variables and complexities involved in a motor vehicle accident case, it is always best for those who are injured in car crashes to consult with an attorney as early in the process as possible. Issues such as the statute of limitations, notice requirements, and other matters concerning timeliness must be dealt with promptly.

The courts do not favor those who don’t exercise their rights to sue in a timely manner. Recently, a Tennessee appellate court was called upon to decide whether an insurance company (which stood in for its insured, to which it had paid damages arising from a motor vehicle accident) had forfeited its right to recover from the responsible party because it failed to file their case after the defendant appealed a verdict for the plaintiff to circuit court.

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motorcycle tailpipe

How much do you know about your insurance coverage? For instance, if you have two cars insured under separate uninsured/underinsured motorist policies, do you assume that you are covered under both policies for an accident in either vehicle? Or do you know that there may be an insurance exclusion that applies?

This issue was the subject of a recent Kentucky Supreme Court case in which the justices strongly disagreed about whether an “average American” could understand certain exclusions in two insurance policies issued to a man who was later hurt by an underinsured driver.

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Risperdal drug injuryEarlier this month, a jury in Pennsylvania delivered the largest verdict yet against the maker of Risperdal, an antipsychotic medication. A jury awarded a family $70 million as compensation for devastating drug side effects suffered by their son. According to media reports, this is the fifth such lawsuit in Philadelphia, but by far the largest verdict, against Janssen, the manufacturer of Risperdal.

The plaintiff in the lawsuit, a boy who lived in Tennessee, grew large breasts as a result of taking the drug. The condition he suffered from is called gynecomastia, which is a known possible side effect of Risperdal. In marketing the drug and in Janssen’s defense in court, the manufacturer downplayed this side effect – but as this family can tell you, it is an incredibly difficult ordeal for those who develop it.

Risperdal is used in some patients to treat psychiatric disorders. In 2002, the U.S. Food and Drug Administration approved it for use for those who suffered from schizophrenia. In 2003, the FDA approved Risperdal for treatment of manic episodes of bipolar disorder. Since those are limited uses confined to small populations, the company began seeking more ways to market the drug.

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product liability lawsuit

Where do you file a product liability lawsuit?

Most of the time, the answer is simple. You file it where the actionable issue occurred. If you live in Kentucky and that’s where the accident happened, it’s easy to determine you file your lawsuit in Kentucky.

Sometimes, there are multiple possibilities for where to file a suit. If the opposing party doesn’t like the plaintiff’s choice of court, the opposing party can ask for a dismissal of the case or, in some situations, a transfer. If the plaintiff disagrees with the trial court’s order regarding jurisdiction or choice of forum, the plaintiff can file an appeal.

Once the proper court has been decided, another possible issue is that of choice of law. Typically, this question arises when an issue could possibly be resolved according to the law of two or more states. However, sometimes, the choice of law question involves the law of differing nations.

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A negligence case has four components:  duty, breach of duty, causation, and damages. Sometimes, a particular situation – such as a slip and fall injury, an act of medical malpractice, or a defective product – turns a simple negligence case into a more complex inquiry.
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Sometimes, however, the opposite is true. A recent case from the Kentucky Court of Appeals illustrates this point.

Facts of the Case

In Campbell v. Pro Video Audio Productions, Inc., the plaintiff was working as a professional stagehand at a concert in Louisville in 2012 when his foot became entangled in a tarp placed on the stage. He fell approximately seven feet, hurting his arm, leg, face, and hand. He sued the defendant, who was in the business of providing stage construction and sound system services, alleging that it had created an unreasonably dangerous condition by failing to place handrails around the stage.

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bumperBy Kyle Roby, Attorney
English, Lucas, Priest and Owsley, LLP

Car accidents, truck wrecks, and other motor vehicle crashes fall under the general law of negligence. In order to prove a negligence case, a plaintiff has to prove four separate elements:  duty, breach of duty, causation, and damages. Each element must be proven by a preponderance of the evidence, which is when the jury finds that the plaintiff’s version of the facts is more likely true than not. It does not require the injured person to prove beyond a reasonable doubt these elements, as in the criminal justice system, but rather only that it is more likely than not that there was a breach in a duty owed to the injured person that caused damages.

Once the plaintiff has presented his or her case at trial, and the judge has determined that he or she has made a prima facie case of negligence, the defendant has the right to offer evidence that contradicts the plaintiff’s version of the facts or impeaches the plaintiff’s testimony. The jury is the ultimate trier of fact, taxed with the duty of deciding which witness to believe when the testimony is conflicting.

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Kentucky slip and fallWorkers’ compensation was designed as a compromise. An injured worker does not have to prove that his or her employer was negligent (as is required in most personal injury cases), but the worker’s monetary recovery is typically less than it would be in a negligence case. Whether or not this is a fair trade-off is a controversial subject.

The good news for an injured worker is that he or she can receive medical care and payment of temporary and, if applicable, permanent disability benefits, even if he or she cannot show that the employer did anything to cause the injury complained of. The bad news is that, even if the employer was at fault, the payout to the worker remains the same, with no compensation for pain and suffering or loss of consortium to the injured person’s spouse.

Sometimes, the parties disagree as to whether an injury was sustained during the course and scope of employment. For instance, an employee may be away from the business premises at the time of an accident (such as a car crash) but still arguably engaged in work for the employer.

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