The Seattle Personal Injury Blog
Posted Thursday, October 12, 2017 by
Chris Thayer
A Washington judge recently ruled that she will not award punitive damages in a personal injury lawsuit involving a 2015 Ride the Ducks crash. On September 24, 2015, a Ride the Ducks amphibious vehicle crashed into a charter bus on Aurora Bridge, killing five North Seattle College international students and injuring dozens of other students and tourists. Multiple personal injury and wrongful death lawsuits were filed against the Ride the Ducks company and government officials, among other defendants.
The National Transportation Safety Board had determined that a defective axle on the Ducks vehicle caused the crash. In fact, the axles had been rebuilt in Missouri, where Ride the Ducks International is based. The plaintiffs tried arguing that because the rebuild happened in Missouri, that Missouri law should apply to their case. Superior Court Judge Catherine Shaffer held that Washington law, and not Missouri law, applied. Even though the rebuild occurred in Missouri, vehicle maintenance took place in Washington, as did the accident.
Shaffer also ruled that the crash did not meet the high bar set for awarding punitive damages in Washington.
Punitive Damages Law in Washington
Courts award punitive damages to punish wrongdoers for malicious, intentional, or reckless conduct. Punitive damages go beyond compensating the victim for his or her injuries and also seek to deter future wrongdoing. While most states permit punitive damages in personal injury cases, Washington generally does not. However, there are a few exceptions. For example, punitive damages may be awarded in malicious harassment lawsuits.
Compensatory Damages
Courts award compensatory damages to plaintiffs in personal injury lawsuits to compensate them for their injuries. In other words, compensatory damages are actual damages that pay for the plaintiff’s medical bills, lost wages, pain and suffering, and other related expenses. Here are a few things you should know about compensatory damages:
- Washington is a comparative fault state. If you are partially at fault for your injuries, then any damages awarded to you will be reduced by your percentage of fault. For example, if the jury determines that you are 20% at fault, then you will only recover 80% of the damages.
- However, Washington does not place a cap on the amount of damages that you can receive, including damages awarded for emotional distress (noneconomic damages).
- “Fault” can be a tricky thing to determine. Note that Washington’s legal definition of “fault” includes “unreasonable assumption of risk,” which means that certain parties cannot escape legal liability by claiming that a particular injury was not their fault because the injured person knew about the risk involved.
- State district courts handle personal injury cases seeking less than $50,000, and state superior courts handle personal injury cases seeking more than $50,000.
- The jury calculates the personal injury award. The judge will give them instructions to follow in calculating the award.
Contact Us Today
Contact one of our personal injury attorneys today for a free consultation if you or a loved one have been injured in an accident. Our experienced attorneys will help you recover compensation for your injuries.
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Posted Sunday, October 8, 2017 by
Chris Thayer
Have you been injured in an accident? Are you seeking damages from the wrongdoer in a personal injury lawsuit? If the answer to either of these questions is yes, it is important to understand all of your legal options.
While you might imagine pleading your case before a judge and jury, not every personal injury claim is resolved in a courtroom. In fact, it is often cheaper and less time-consuming to resolve claims through arbitration or mediation. Generally everyone involved in the dispute must agree to arbitration or mediation, but sometimes a contract or court will mandate the alternative resolution process.
What is Arbitration?
In arbitration, the parties present their arguments to a neutral third party outside of the court system. This third party is called an arbitrator. An arbitrator may be an attorney but does not have to be. Unlike judges, arbitrators handle cases in private and try to help the parties reach an agreement. Under Washington law, an arbitrator’s decision is final, binding, enforceable, and usually non-appealable.
Here is how the arbitration process typically works:
- The parties will agree to arbitration rules.
- The rules outline how the arbitrator will be selected and the arbitration process.
- The parties will sign a written contract that names the arbitrator and explains what the arbitrator will decide.
- There will be an arbitration hearing, where each side may present witnesses and evidence, as well as question the other side’s witnesses (similar to a courtroom proceeding).
- The arbitrator will render his or her decision.
What is Mediation?
In mediation, the parties involved in the dispute will meet with an impartial third person. This person is called the mediator, who will try to help the parties reach a settlement agreement. Unlike an arbitrator, mediators do not issue decisions or apportion fault. They also do not hear witness testimony or examine evidence. Their job is to help parties communicate and to set forth options. While mediators are often lawyers, they do not have to be.
Here is how the mediation process works:
- The parties will meet with the mediator to explain their views of the dispute. Mediation sessions are held outside the courtroom.
- The mediator then might meet with each party separately to discuss the dispute and possible resolutions.
- The mediator may go back and forth between the parties multiple times until they can reach an agreement. Other joint mediation sessions may also be held.
- Once the parties reach an agreement they can sign a written settlement agreement, which is a binding and enforceable contract.
- All the parties must agree to the resolution – otherwise the dispute is left unresolved.
Anything you say at a mediation session is confidential and cannot be used against you later in a legal proceeding if the dispute is not settled.
Contact Us Today
Contact one of our personal injury attorneys today for a free consultation if you or a loved one have been injured in an accident. Our experienced attorneys will discuss your legal options – including arbitration, mediation and litigation – and help you recover compensation for your injuries.
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Posted Saturday, September 30, 2017 by
Chris Thayer
Washington law recognizes that certain people are not capable of making decisions for themselves. In those situations, courts may appoint legal guardians.
What is a Legal Guardian?
A legal guardian is a person or entity appointed by a court to manage another person’s personal and/or financial affairs. There are usually three instances in which a person needs a legal guardian:
- The person is a minor (under 18 years old),
- The person is an incapacitated elder, or
- The person is an adult with developmental disabilities (physical or mental).
Depending on any limitations imposed by the court, a guardian might make financial and medical decisions, file lawsuits on the person’s behalf, and decide where the person will live. For example, an elderly woman who was injured when a Florida nursing home lost power during Hurricane Irma recently sued the facility for negligence. A guardian filed the lawsuit on her behalf.
Who May Serve as a Legal Guardian?
Guardians must be at least 18 years old and of sound mind. Convicted felons may not serve as guardians. Oftentimes a relative will act as guardian, but there are also professional guardians who charge fees for their services. There is a Certified Professional Guardianship Board that issue certifications to people who act as guardians to three or more people.
How is a Legal Guardian Appointed?
A court will appoint a guardian after a petition has been filed requesting such appointment. Before the court appoints a guardian, it must determine whether the person is incapacitated. Here are the steps in the petition process:
- The guardianship petition is filed.
- The person named in the petition must be notified that the petition has been filed. That notice must be delivered in person.
- The court will designate someone to investigate the situation (a guardian ad litem) and report their findings to the court, including a statement from the person’s physician.
- The court will hold a hearing and then issue its decision.
What are the Types of Guardianships?
There are two types of guardianships - partial (limited) and full (plenary). In a partial guardianship, the guardian will only assume decisionmaking authority for the rights specifically named in the court order. For example, the court may give the guardian decisionmaking authority over the person’s financial affairs, while the person retains decisionmaking authority over all other aspects of his or her life.
In a full guardianship the guardian assumes decisionmaking authority over the rights specified in Washington law, including filing a personal care plan and an annual status report on the incapacitated person.
Is There a Guardianship Alternative?
There are many legal alternatives to guardianships. For example, you can establish a power of attorney, giving someone else authority to act on your behalf. This often involves giving something authority to make medical decisions for you, like whether to artificially prolong your life. An experienced attorney can help you determine what option is best for you or your loved one.
Contact Us Today
Contact one of our personal injury attorneys today for a free consultation if you or a loved one have been injured because of someone else’s negligence. Our experienced attorneys will help you recover compensation for your injuries. We can also walk you through the legal guardianship process if that is a factor in your case.
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Posted Monday, September 25, 2017 by
Chris Thayer
Drug overdose deaths increased by 19% between 2015 and 2016, according to data compiled by The New York Times. This problem does not appear to be improving. In fact, drug overdoses are the leading cause of death of Americans under the age of 50.
While much of the blame falls on recreational drug use and addiction, medication errors and accidental overdoses in hospitals are another contributing factor. A 2016 study found that medical errors in hospitals and other health care facilities could be the third-leading cause of death in United States, causing 251,000 deaths every year.
*Medication Error and Medical Malpractice Lawsuit in North Carolina*In 2012, a 40-year-old veteran went to the Asheville VA Medical Center for what he thought was the flu. Doctors diagnosed him with diverticulitis and a small perforation in his bowel, and he was admitted to the hospital.
It was a busy time for Jason Powell and his family, who had literally just moved to Asheville. His wife left him overnight at the hospital so that she could wait for the moving truck. When she returned the next evening she learned that he had been moved unexpectedly to the intensive care unit.
Powell had been prescribed 1 milligram of a powerful opiate every four hours, but his medical records show that twice he was given 4 milligrams. Doctors found him unresponsive after the overdose, and he later died.
Jason Powell’s wife remembered that the ICU attending doctor admitted the error. “He said, ‘Mrs. Powell, I have to tell you, morally and ethically, I need you to know that there was an error in your husband’s care. There was a medication error. Not just once but twice,’ Jennifer Powell recalled.”
She filed a medical malpractice lawsuit in federal court in 2013, which settled out of court in 2015. The hospital did not have to admit liability as part of the settlement.
*Filing a Medical Malpractice Lawsuit in Washington*What happened to Jason Powell can happen in any hospital, in any state. That is why it is important that you know your rights and responsibilities.
Washington law sets a three-year statute of limitations for filing medical malpractice claims. That means you have three years from the date of the injury, or the date of your loved one’s passing, to file a medical malpractice or wrongful death lawsuit. If the injury is not readily apparent, you have one year from the date the injury is discovered to file a lawsuit.
If the victim is a minor (someone under the age of 18), a parent or legal guardian can file on his or her behalf. The child can also wait until his or her 18th birthday, no matter when the injury occurred (i.e., even if the injury happened more than three years ago). But the child must file the lawsuit within one year of his or her 18th birthday.
You may sue for medical expenses, lost wages, emotional distress, and other related damages. Note that there is no cap on the amount of noneconomic damages (emotional distress) that you can receive.
*Contact Us Today*Contact one of our personal injury attorneys today for a free consultation if you or a loved one have been injured by any type of medical malpractice. Our experienced attorneys will help you recover compensation for your injuries.
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Posted Sunday, September 17, 2017 by
Chris Thayer
A federal government audit recently found that more than one in four cases of possible physical and sexual abuse against nursing home patients goes unreported. Investigators from the Department of Health and Human Services say that Medicare is responsible for reporting such incidents to the police and other government agencies. The audit is not yet complete, but the inspector general’s office issued this “early alert” so that Medicare can correct its practices.
The Centers for Medicare and Medicaid Services issued a statement saying it does require nursing homes to immediately report abuse and neglect to state officials and that it will formally respond to Health and Human Services once the audit is complete.
Nursing Home Abuse Laws in Washington
Washington has several laws designed to protect elderly individuals from abuse. State law also spells out certain rights guaranteed to residents living in long-term care facilities, like nursing homes. These rights include:
- The facility must care for its residents in a manner and environment that respects each resident’s dignity and individuality.
- Residents have a right (within reasonable facility rules) to choose their own activities, schedules and health care treatment.
- Residents may wear their own clothing and make their own choices about certain aspects of their lives.
- Unless a resident has been adjudged incompetent or found legally incapacitated, he or she may participate in planning his or her own care and treatment.
- Residents may organize and participate in resident groups at the facility. Similarly, residents have the right to participate in social, religious and community activities as long as they do not interfere with another resident’s rights.
- Residents must be notified before any changes to their room or roommate.
- A resident has the right to share a double room with a spouse or domestic partner.
- Residents have the right to reside and receive services in the facility with reasonable accommodation of their individual needs and preference, except when health and safety are a concern.
A violation of any of these rights might be evidence of elder abuse.
Types of Elder Abuse
In addition to the rights listed above, nursing home and other long-term care facility residents have a right to be protected from physical, emotional, and financial harm. Common types of abuse include:
- Physical abuse. As found by the government audit, nursing home patients might be sexually or physically abused.
- Emotional abuse. Examples include name calling and belittling a patient’s self-worth. Such emotional abuse can cause depression, anxiety, and other mental health issues.
- Financial abuse. Staff members sometimes steal money and other personal property from residents.
- Neglect. This often results in physical harm to the senior. For example, a caregiver who deprives a senior of a basic need, like food, is guilty of neglect.
If you suspect that your loved one is being abused, contact the police and an experienced attorney immediately.
Contact Us Today
Contact one of our personal injury attorneys today for a free consultation if you or a loved one have suffered nursing home abuse. Our experienced attorneys will help you recover compensation for your injuries, including medical expenses, and pain and suffering.
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