Medical Misdiagnosis FAQs
Surgical Errors Malpractice FAQs
Birth Injury FAQs
Emergency Room Malpractice FAQs
Personal Injury and Wrongful Death FAQs
Medical Misdiagnosis FAQs
Can you sue a doctor who misdiagnosed you in Florida?
Yes, you can sue a doctor for misdiagnosis in Florida. Florida’s medical malpractice laws allow patients to pursue legal action against healthcare providers in Florida who fail to meet the standard of care expected in diagnosing and treating medical conditions. To establish a valid claim, you must show that the misdiagnosis of the doctor or medical professional directly resulted in harm to you and was the result of negligence or failure to meet accepted medical standards.
Consider contacting a medical malpractice attorney at Haliczer Pettis & Schwamm who can provide you with a complimentary consultation to review your case and advise you on your legal options. But don’t delay! There is a statute of limitations in Florida for bringing your case which, in most cases, is only two years and that includes the time your attorney needs to gather evidence such as medical records, expert testimony, and other pertinent documents will be imperative to support your case.
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What do you do if you have a misdiagnosis?
If you believe a doctor in Florida has misdiagnosed you, there are several steps you can take:
The statute of limitations in Florida for medical malpractice is two years, with few exceptions. It is very important not to delay in taking the above steps if you believe you have been harmed by a misdiagnosis.
In addition to consulting with a medical malpractice attorney, you can file a complaint with the Florida Department of Health if you believe the doctor’s actions constituted medical negligence. Regardless of the misdiagnosis, prioritize your health and seek appropriate medical care to address your condition.
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How do you prove misdiagnosis?
Proving a misdiagnosis in Florida typically requires gathering evidence to establish several key elements:
- Doctor-Patient Relationship: You must first show that a doctor-patient relationship existed, demonstrating that the doctor owed you a duty of care.
- Breach of Standard of Care: You must demonstrate that the doctor breached the standard of care expected in diagnosing and treating your condition. This often involves expert testimony from other medical professionals.
- Causation: It’s necessary to establish a direct link between the misdiagnosis and the harm or injury you suffered. Expert medical testimony may also be necessary to prove causation.
- Damages: You must document the damages you incurred as a result of the misdiagnosis, such as your physical injury, emotional distress, or financial losses.
Collecting medical records, obtaining expert opinions, and consulting with an attorney experienced in Florida medical malpractice law can help you build a strong case to prove misdiagnosis and seek compensation for your losses. But these steps take time. You should consider contacting an experienced medical malpractice lawyer at Haliczer Pettis & Schwamm promptly if you think you may have suffered damages related to a misdiagnosis.
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Surgical Errors Malpractice FAQs
Can you sue a surgeon in Florida?
Yes, you can sue a Florida surgeon under certain circumstances. If you believe the surgeon acted negligently or breached the standard of care during a medical procedure, resulting in harm or injury to you, you may have grounds for a medical malpractice lawsuit. To sue, you typically need to demonstrate that the surgeon’s actions did not meet the accepted medical standard, directly causing your injury or harm. This may involve gathering evidence such as medical records, expert testimony, and documentation of your damages. It’s important to consult with a qualified attorney who specializes in medical malpractice cases in Florida to assess the strength of your case and guide you through the legal process. Consider contacting a medical malpractice attorney at Haliczer Pettis & Schwamm who can provide you with a complimentary consultation to explore your options. Florida has specific laws and procedures governing medical malpractice lawsuits, so hiring an experienced lawyer is important. And don’t delay, as the statute of limitations is two years in most cases.
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How long do you have to sue a doctor after surgery in Florida?
In Florida, the statute of limitations for filing a medical malpractice lawsuit against a doctor is generally two years from the date of the alleged malpractice or from the time when the malpractice was discovered or should have been discovered with reasonable diligence. This time period may be extended to four years in cases where the injury was not immediately discoverable. There are exceptions in the case of fraud or concealment. There are also very limited exceptions to these deadlines, such as cases involving minors or individuals who were incapacitated at the time of the malpractice.
It’s crucial to consult with a qualified medical malpractice attorney as soon as possible if you believe you have a claim against a Florida doctor, as failing to meet the statute of limitations deadline could bar you from pursuing legal action. Don’t delay! It’s more time-consuming than you may think to collect all the necessary documentation to start putting together a strong case. If you think you or your loved one is a victim of medical malpractice, contact Haliczer Pettis & Schwamm for a complimentary consultation.
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Is it difficult to sue a doctor in Florida?
Suing a Florida doctor, like in any state, can be complex and challenging. Medical malpractice lawsuits require evidence that establishes that the doctor’s actions or omissions deviated from the accepted standard of care, directly causing harm or injury. This often involves gathering extensive medical records, obtaining expert testimony, and navigating complex legal procedures. Florida also has specific laws governing medical malpractice lawsuits, including requirements for pre-suit investigations and notices. These legal requirements can add time and complexity to the process of suing a doctor in Florida. Additionally, doctors and healthcare facilities typically have insurance coverage and legal resources to defend against malpractice claims. As a result, pursuing a lawsuit against a doctor in Florida may involve facing well-funded, strong and persistent legal opposition.
It’s imperative to consult with a qualified and experienced attorney who is familiar with Florida medical malpractice laws as soon as you believe you may have a case. Haliczer Pettis & Schwamm (HPS) is consistently ranked as one of the best medical malpractice firms in both Fort Lauderdale and Orlando regions, and our attorneys have decades of prior experience working with hospitals and medical professionals, and we understand how sensitive and urgent medical malpractice cases are for the patient or patient’s family.
If you believe you or your loved one has been impacted by a medical mistake and believe a hospital, physician or nurse may be responsible for related injuries, contact us for a free and confidential legal consultation at 1-800-693-4465 or fill out our CONTACT FORM. One of our experienced medical malpractice attorneys can then evaluate your case and your options.
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Birth Injury FAQs
What is the statute of limitations on birth injuries in Florida?
Birth injuries are injuries that occur during the labor and delivery process. There are a number of common birth injuries, including cerebral palsy and traumatic brain injuries. To prevail in a lawsuit, the plaintiff must prove that the doctor was negligent in delivering the baby. In Florida, the statute of limitations for birth injury cases can vary depending on the circumstances.
Generally, the statute of limitations for medical malpractice cases, including birth injuries, allows for a lawsuit to be filed within two years from the date of the alleged malpractice or within two years from when the injury was or should have been discovered. However, this rule has exceptions and nuances, particularly in cases involving minors or situations where the injury is not immediately apparent. It’s crucial to consult immediately with a qualified attorney experienced in medical malpractice and birth injury cases to understand how the statute of limitations applies to your specific situation. Consider contacting a medical malpractice attorney at Haliczer Pettis & Schwamm who can provide you with a complimentary consultation to explore your options at 1-800-693-4465 or fill out our CONTACT FORM.
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What is medical negligence during childbirth?
In Florida, medical negligence in childbirth refers to instances where doctors and healthcare providers fail to adhere to the accepted standard of care, resulting in harm or injury to the mother or baby during labor, delivery, or postpartum care. Examples of medical negligence in childbirth can include failure to properly monitor fetal distress, delays in performing necessary interventions such as cesarean sections, improper use of medical instruments like forceps or vacuum extractors, medication errors, or inadequate postpartum care which can lead to complications for the mother or baby. To establish that there has been medical negligence in childbirth, it must be proven that the healthcare provider breached a duty of care, which directly caused harm or injury. If you think your medical provider was negligent, you may have legal recourse to pursue compensation for damages through a medical malpractice lawsuit. It’s important to promptly consult with an experienced medical malpractice lawyer if you think you have a case. Consider contacting HPS for a free and confidential legal consultation at 1-800-693-4465 or fill out our CONTACT FORM. One of our experienced medical malpractice attorneys will then evaluate your case.
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What is a traumatic birth injury?
In the state of Florida, traumatic birth injuries refer to physical harm or damage sustained by a newborn during the labor and delivery process. These injuries can result from various factors, including prolonged or difficult labor, improper use of delivery instruments such as forceps or vacuum extractors, failure to monitor fetal distress, or improper medical interventions. Traumatic birth injuries can range from minor bruises and lacerations to more severe conditions such as fractures, brain injuries, nerve damage, or oxygen deprivation, leading to conditions like cerebral palsy. When a traumatic birth injury occurs due to medical negligence or malpractice, you may have legal options to seek compensation for the harm suffered by your child. This typically involves filing a medical malpractice lawsuit against the doctor, healthcare providers or facility responsible for the negligent care, with the assistance of experienced legal counsel knowledgeable about Florida’s laws governing birth injury cases. In Florida, the statute of limitations for birth injury cases can vary depending on the circumstances, so it is important that you look into your situation with an attorney immediately. If you think you or your loved one has been a victim of this type of medical malpractice, contact Haliczer Pettis & Schwamm for a complimentary consultation.
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Which types of birth injuries are common?
In Florida, as in many other states, one of the most common birth injuries is cerebral palsy. Cerebral palsy is a group of disorders affecting movement, muscle tone, and posture. It often results from brain damage which can occur before, during, or shortly after birth. In some cases, cerebral palsy may be caused by factors such as oxygen deprivation during labor and delivery, trauma during childbirth, or infections affecting the developing fetus. Due to its significant and negative impact on the affected individual’s life and the potential for lifelong disabilities, cerebral palsy cases resulting from birth injuries are often the subject of medical malpractice lawsuits in Florida. Other major birth injuries include facial paralysis, brachial plexus, fractured collarbones, and spinal cord injuries. Families affected by cerebral palsy or other birth injuries may be able to seek legal assistance to pursue compensation for medical expenses, ongoing care, and other related damages. But it is important that you act quickly. Consider contacting HPS for a free and confidential legal consultation immediately at 1-800-693-4465 or fill out our CONTACT FORM. One of our experienced medical malpractice attorneys will then evaluate your case.
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Is a birth injury the same as a birth trauma?
While the terms “birth injury” and “birth trauma” are often used interchangeably, there can be subtle differences in their meanings depending on context. Generally, a “birth injury” refers to any physical harm or damage sustained by a newborn during the labor and delivery process. This can include conditions such as cerebral palsy, fractures, nerve damage, or oxygen deprivation. Birth injuries are different from birth defects or malformations.
On the other hand, “birth trauma” is a term often used to refer to the emotional or psychological impact experienced by the mother or baby during labor and delivery. This can encompass feelings of distress, fear, or anxiety resulting from complications, difficult or prolonged labor, or unexpected outcomes during childbirth. Birth trauma also sometimes refers to a category of birth injury involving mechanical forces or lack of oxygen related to the failure of the baby to progress in the birth canal. Due to the increased sophistication of medical techniques and more frequent caesarian sections, the rate of birth trauma has decreased in the past several decades.
Victims of birth injuries or birth trauma and their families may be able to seek legal assistance to pursue compensation for medical expenses, ongoing care, and other related damages. Time is of the essence, so it’s imperative to consult with a qualified and experienced attorney who is familiar with Florida medical malpractice laws as soon as you believe you may have a case. Haliczer Pettis & Schwamm (HPS) is consistently ranked as one of the best medical malpractice firms in both the Fort Lauderdale and Orlando regions, and our attorneys have decades of prior experience working with hospitals and medical professionals, and we understand how sensitive and urgent medical malpractice cases are for the victim and the victim’s family.
Consider contacting HPS for a free and confidential legal consultation immediately at 1-800-693-4465 or fill out our CONTACT FORM.
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Emergency Room Malpractice
How Do You Prove Negligence by an Emergency Room in Florida?
Specifically, you must show that:
The provider did not meet the standard of care required by comparable healthcare practitioners;
The failure to meet the standard of care resulted in your or your loved one’s injuries; and
The injuries are compensable, meaning you are entitled to damages.
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What are Some Common ER Malpractice Claims?
Misdiagnosis
Misdiagnoses can happen for any number of reasons. ED staff are often crammed for time and operate under significant pressure. With everything moving quickly, EPs may fail to consider all the possible options, forget to order tests, or simply skip over valuable information. Unfortunately, this type of emergency room error can cause serious injury to the patient. Ninety percent of emergency room malpractice claims associated with misdiagnosis are related to failures in decision-making, reasoning, or clinical assessment.
- stroke
- spinal cord compression/injury
- myocardial infarction
- venous thromboembolism
- aortic aneurysm/dissection
Misdiagnoses can happen for any number of reasons. ED staff are often crammed for time and operate under significant pressure. With everything moving quickly, EPs may fail to consider all the possible options, forget to order tests, or simply skip over valuable information. Unfortunately, this type of emergency room error can cause serious injury to the patient.
Ninety percent of emergency room malpractice claims associated with misdiagnosis are related to failures in decision-making, reasoning, or clinical assessment.
Improper Performance of a Procedure
The emergency department is unpredictable. Doctors, nurses, and other ED staff are expected to handle any and every medical situation that comes through the door. However, EPs may not be experts in every procedure they are tasked with. With little to no experience in some areas of practice, mistakes are much more likely to happen.
These types of emergency room errors can include:
- wrong-site surgery
- incorrectly administered stitches
- incorrect surgical procedure
- poorly executed surgical procedure
- improper handling of medical devices
Delayed Treatment
Delayed treatment in emergency rooms can have severe consequences for patients, potentially leading to worsened conditions and even fatalities. The busy nature of emergency rooms often contributes to these delays, as medical staff may struggle to attend to patients promptly. This issue is particularly concerning for certain types of injuries or medical emergencies where time is of the essence. When treatment is delayed, there is an increased risk of complications, progression of the underlying condition, and a higher likelihood of adverse outcomes. Healthcare facilities must address this issue by implementing strategies to reduce wait times and ensure timely access to care.
Medication Errors
Another common emergency room error is when doctors or nurses mistakenly prescribe the wrong medication. Medication errors can include:
- administering the wrong drug
- failing to provide any medication at all.
- administering or prescribing an improper dosage
These types of emergency room errors can also happen if a doctor’s handwriting is illegible or there was a communication error that resulted from the chaos of the ED. A medication error in the emergency room is only considered malpractice if a doctor-patient relationship was established, it caused injury or harm, and the medical professional did not meet the standard of care.
Improper Discharge
A common problem EDs face is not having enough room for every patient. As a result, there may be pressure to discharge patients as soon as possible to free up space for other patients in need of medical care. However, the consequences of this can be catastrophic if a patient is improperly discharged.
A patient can be improperly discharged if:
- they were sent home before receiving the care they need
- they were not given the proper information to get better or continue treatment at home.
- they were discharged before they could be properly diagnosed
- An improper discharge can result in the worsening of a patient’s condition and even death.
These are just some of the errors and types of negligence that may occur in the emergency room setting.
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Who Do I Sue – the Hospital or the Healthcare Provider?
This will be a question of fact that your attorney can help you figure out. In many cases, the hospital will be the responsible party if the nurses, technicians, and other medical professionals are employees of the hospital. But often, the doctor who treated you at the facility may be an independent contractor, not an employee, and therefore he or she may be the responsible party. Our medical malpractice legal team knows the questions to ask in order to understand who is responsible for your injury.
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How to Protect Yourself from Emergency Room Errors
Experts say that there are several steps that you or your family can take to safeguard against malpractice in the emergency room:
Call 911 if the emergency is life-threatening. If you are brought to the emergency room by an emergency medical transporter, you will likely receive faster care than if you come through other methods. And calling 911 can save precious time in the event of extremely time-sensitive medical situations, such as heart attacks or strokes.
When you arrive at the emergency room, you or someone advocating for you should call your primary care doctor, especially if your medical situation is complicated. Your doctor can talk to the medical professionals in the emergency room and explain your diagnosis in detail.
Bring a support person if possible – a family member, friend or neighbor – who can listen to the medical professionals and advocate for you.
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Personal Injury and Wrongful Death FAQs
If a dog bites a person, is the owner liable for doctor’s bills?
In general, the answer to this question is “yes.” An owner of a dog or any animal may be held liable for the injuries that his or her animal causes to others. However, the ease with which a plaintiff can win a “dog-bite” lawsuit differs from jurisdiction to jurisdiction depends on the legal theory of recovery in the plaintiff’s location. Some jurisdictions require plaintiffs to show that the animal owner knew, or should have known, that the animal was inclined to attack or bite. In other jurisdictions, the plaintiff may only need to show negligence on the part of the owner in order to recover money for injuries. If a wild animal, such as a lion, bear or monkey, injures the plaintiff, the animal’s owner may be held accountable under a theory of strict liability for plaintiff’s injuries regardless of the plaintiff’s conduct.
Some states have “dog-bite” statutes designed to address these matters. In addition, some municipalities may have their own statutes to address the responsibility of pet owners to answer for the actions of their pets.
If the plaintiff is an adult, the owner of an animal may offer as a defense to the plaintiff’s claim that the injured party provoked the animal. Where the plaintiff has been given clear warning that an animal should not be approached, petted or talked to, and still proceeds with that action, the owner may be able to avoid responsibility if the animal thereafter attacks the plaintiff. This defense is not available, however, if the plaintiff is a child.
When the plaintiff has established that the animal owner is liable for his or her injuries, the plaintiff must also establish the amount of his or her damages. The plaintiff should introduce evidence, such as doctor and hospital bills, showing the costs to treat the injury. In addition, the plaintiff may be able to recover lost wages if the injury kept the plaintiff out of work. The plaintiff is entitled to compensation for any permanent disability caused by the injury, as well as compensation for pain and suffering.
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Is an owner of property liable for using deadly force to defend their property?
Generally speaking, an owner of a property may not use deadly force to defend his or her property. Society values human life and bodily integrity much higher than property. Therefore, the life, health, and safety of an individual, even an intruder, is considered to be more valuable than the china or stereo that the individual is trying to steal.
An owner is not prohibited, however, from invoking self-help methods in defending property. An owner of property is entitled to use reasonable force to prevent someone, or something, from entering his or her property or to remove something from the property. What, under normal circumstances, may constitute a battery, assault, or other intentional tort, will not be considered unlawful in situations where it is performed as a reasonable use of self-help in defense of property. However, the use of force calculated to do great bodily harm, or cause death, is not permitted.
One narrow limitation upon the use of deadly force is authorized. Where an intruder threatens personal safety, as well as a threat to property, or where the intruder is committing a forcible felony, deadly force may be appropriate. For example, if a robber enters a home and, while stealing items, attempts to rape the homeowner, the owner may be justified in shooting the robber. However, an owner who witnesses a neighborhood child stealing a bicycle from the owner’s garage, without any threat of bodily harm, is not justified in shooting that child.
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Can a person recover damages for injuries sustained on someone else’s property?
Property owners have a duty to protect members of the public from injury that may occur on their property. An injured person may be able to recover money for those injuries if he or she can prove that the property owner failed to meet that duty. The hurdle plaintiffs face is that the nature and extent of the property owner’s duty will vary depending upon the facts of the situation and the jurisdiction in question.
Some states focus solely upon the status of the injured visitor to the property and whether the visitor was an invitee, licensee or a trespasser. An invitee is someone who has been invited onto the land because that person will confer some advantage to the property owner, such as a store patron. An owner of property is required to exercise reasonable care for the safety of the invitee. A licensee is someone who enters for his or her own purpose, and is present at the consent, but not the invitation, of the owner. For example, a door-to-door salesman who enters the property and stays to chat with the owner about the products he is selling is a licensee. The owner’s duty to a licensee is only to warn of hidden dangers. For example, if the owner knew the front step was rotten and did not warn the salesman, the salesman may be able to recover if he falls through the step and injures himself. Finally, a trespasser is an individual who enters the property without the knowledge or consent of the owner and who remains there without any right or permission. Trespassers have difficulty suing property owners because property owners’ duty towards trespassers is not to place traps and hazards on their property. In some cases, the owner must also warn trespassers of the hazards if they are unlikely to be discovered by the trespassers and could cause serious injury or death.
Other states focus upon the condition of the property and the activities of both the visitor and owner, rather than considering only the status of the visitor. In these states, a uniform standard that requires the owner of the property to exercise reasonable care to ensure the safety of invitees and licensees is generally applied. The plaintiff must prove that the duty of care has not been met through an examination of the circumstances surrounding the entry on the property, the use to which the property is put, the foreseeability of the plaintiff’s injury, and the reasonableness of placing a warning or repairing the condition. Obviously, whether reasonable care has been rendered depends greatly upon the particular circumstances.
The property owner’s duty of care toward children is greater than the duty owed to adults. Even if the children are trespassers or engage in dangerous behavior, the property owner must still take precautions to prevent foreseeable harm to children. The classic example of a property owner’s greater duty of care to children arises in the context of backyard swimming pools. Owners must fence, gate, and lock their pools in a manner that keeps children out and if they fail to do so, they will be found liable for injuries to children, even if the children were trespassers that were warned to stay off the property.
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Learn More: Plaintiff’s Personal Injury Law
Personal injury actions require, by their nature, that someone be injured. The requisite injury can either by physical or, in some cases, emotional. The general goal of personal injury actions is to place the blame for the injury on the party who caused it and to require that party to compensate the injured for the losses sustained.
Not every injured plaintiff is entitled to recover damages for the injury he or she sustains. Besides an injury, the plaintiff must establish, through evidence, that the defendant is legally liable for his or her injuries. This requires proof of causation both in terms of actual, factual causation and proximate, or legal causation. Whether legal causation is established depends on the facts and circumstances of the particular matter in question. The defendant can be held liable as a result of either the actions that are taken or the actions that are not taken.
Some personal injury actions involve legal causation derived from a concept of intentional conduct, whereby it is generally held that if one intentionally harms another, or knows that one’s conduct causes a substantial likelihood that harm will result, liability for the resulting harm will in fact attach. Other personal injury actions have as their legal causation a looser concept of fault called negligence. Under a negligence theory, in comparison, one is liable for the results of actions, or inaction, where an ordinary person in the same position should have foreseen that the conduct would create an unreasonable risk of harm to others. Still other types of personal injury actions are based on strict liability, a no-fault system where liability may attach regardless of the fault of the various parties, including the plaintiff.
In some situations, the defendant’s conduct, while questionable, does not rise to a level that entitles the plaintiff to a recovery. For example, if a plaintiff knowingly and willfully chooses to encounter a known hazard, the law holds that he or she has “assumed the risk of injury” and therefore the defendant is not liable. This theory applies for instance in a case where the plaintiff walks on an obvious build up of snow and ice caused by the defendant property owner’s failure to shovel his or her sidewalk, falls and breaks his or her hip, and is unable to recover for the injuries because he or she knew of the hazardous condition and willingly chose to encounter it. Plaintiffs are denied recovery in other cases if their subjective belief about a situation does not match an objective “reasonable person” standard. For instance, where the defendant approaches the plaintiff and states “I might poke you in the eye if you wear that red sweater again,” it is likely that no actionable assault occurred due to the fact that there was no immediate threat of harm that caused reasonable apprehension on the part of the plaintiff.
Personal injury law can involve many different types of claims, theories, and principles. Some of the more common types of personal injury actions include:
Animal bites can result in the animal owner’s liability to the person who is bitten or who is injured while trying to avoid a bite.
Assault and battery are two intentional torts that involve improper contact with another, without permission or consent, or the threat of such contact.
Aviation accidents quite often result in either serious injury or death. When these accidents occur, serious questions regarding the liability of the airline, its employees, or the government may arise.
Defamation and privacy are two separate causes of action that concern the rights of individuals to have their names and reputations protected, and also to have their privacy preserved.
Motor vehicle accidents raise numerous questions as to the liability of one participant to another and also raise interesting questions regarding who should be responsible for covering the losses.
Premises liability concerns the responsibilities of owners and possessors of property to safeguard others from dangerous conditions or hazards on the property and to prevent others from being injured while on the property.
Property damage causes of action concern the rights of owners or possessors of property to protect their property from damage, theft or intrusion.
Railroad accidents may result in personal injury or death and subject the railroad to liability.
Slip and fall cases are very common causes of action and relate closely to the duty of an owner or possessor of land to maintain the property in a safe manner for the benefit of others lawfully entering upon the land.
Wrongful death actions may be brought by the dependents or beneficiaries of a deceased individual against the party whose action or inaction was causally related to the death.
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Does the average member of the public have any privacy rights?
Yes. The average member of the public is entitled to privacy protections, although the strength of those protections will vary depending upon the particular factual circumstances.
Generally, there are four different actions that an injured plaintiff can allege to recover for an unlawful invasion of his or her privacy. The first concerns the unlawful appropriation of another’s image. The plaintiff could make this claim, for example, if the defendant, an owner of a car dealership, uses the plaintiff’s picture in a commercial or advertisement without permission.
The second type of wrongful invasion of privacy is in the nature of intrusion. If the plaintiff can prove that the defendant intruded into his or her solitude, seclusion, or private life in a manner that would be considered highly offensive to a reasonable person, the plaintiff is entitled to recover damages from the defendant. The issue of what actions are considered highly offensive depends greatly upon the factual circumstances under examination.
The third type of a privacy claim is the public disclosure of private facts. This cause of action requires that the defendant have disseminated facts that are not linked to a legitimate public concern and cause embarrassment, humiliation or offense to the plaintiff. Whether the public has a legitimate concern in otherwise private facts about the plaintiff is always dependent upon the particular circumstances. For example, the public may have a legitimate interest in knowing that a local surgeon has the AIDS virus, which is an otherwise private matter, due to the potential health risks involved with that condition. In comparison, however, the public may not have a valid interest in knowing the HIV status of the local cabdriver, as there is no threat to the public health or safety in that situation.
A fourth type of privacy right is the right to be free from being placed in a false light in the public eye. This cause of action is very similar to a defamation action. In short, the plaintiff alleges that the defendant made an untrue communication to the public about the plaintiff. The main difference between this cause of action and defamation is that for the invasion of privacy tort, the communication does not have to be defamatory but, rather, it need only be false and highly offensive to a reasonable person.
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What must a plaintiff prove to recover for an assault or battery?
The terms “assault” and “battery” are often erroneously used interchangeably. However, they do not mean the same thing. An assault can be defined as the threat to use unlawful force to inflict bodily injury upon another person. The threat, which must be believed to be imminent, must cause reasonable apprehension in the plaintiff. Therefore, if the defendant’s threatened use of force creates an apprehension in the plaintiff, an assault has occurred. The focus, for the purpose of determining whether a particular act is an assault, must be upon the reasonableness of the plaintiff’s reaction.
If the defendant threatens to use force against the plaintiff, but clearly states that the use of force will not be imminent and will instead occur in the future, then the plaintiff is unlikely to prevail on a claim of assault. If the threat is imminent, and the defendant appears capable and intent on carrying it out, the plaintiff will likely succeed in proving an assault occurred. For example, a plaintiff may have difficulty proving an assault in cases where an individual such as a former spouse threatens him or her over the phone and thus is not present and capable of immediately carrying out the threat.
Battery is the intentional and unpermitted physical contact with another person. A battery, for practical purposes, is the end-product of an assault. A plaintiff in a battery claim does not need to prove an actual injury as long as the plaintiff proves unlawful and unpermitted contact with his or her person or property. For example, plaintiffs have successfully proven a battery where the defendant grabbed the plaintiff’s coat. In addition, it is not necessary for the contact to be with an object in the possession of the plaintiff or the plaintiff’s body. An unpermitted contact with property of the plaintiff, located within the plaintiff’s proximity, may also constitute a battery.
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What does a person have to prove to win a slander or libel claim?
Defamation is a term that includes both slander and libel. Generally, slander occurs when a person’s reputation or good name is damaged as a result of false statements that are made orally. Libel, on the other hand, occurs when false statements regarding another are put in writing.
Whether a particular oral or written statement constitutes defamation in the nature of slander or libel will depend upon the particular circumstances in question and the identity of the parties. To prevail in a defamation lawsuit, a plaintiff must prove that the defendant made a false and defamatory statement about the plaintiff that was communicated to a third party. Thus, a false and objectionable statement sent in an e-mail to the plaintiff’s co-worker may be libelous. The plaintiff can usually succeed by showing the communication was either intentional or at least negligent. Finally, it is also possible for the plaintiff to bring a libel suit where the plaintiff himself repeats the alleged defamatory statement. This is called self-publication. This can occur, for example, when an individual applies for a job and has to tell the prospective employer about false statements made by a previous employer.
Before beginning a libel or slander lawsuit, the plaintiff must determine whether or not the objectionable statement is true. No matter how damaging, insensitive, rude or inappropriate a statement may be, the plaintiff will lose if the statement is true.
The “public” plaintiff has additional hurdles to overcome to recover for libel or slander. An example of a public figure is a politician. Along with establishing all of the regular elements of the tort, a plaintiff who is a public figure must also show that the defendant knew the false statement was false, or at least acted with reckless disregard as to its truthfulness. Newspapers may escape liability for libel when they merely report false statements as long as the paper had no particular reason to doubt the statement at the time it was printed.
Finally, the plaintiff often has to prove economic harm in order to recover on a defamation suit. Therefore, the plaintiff may need to be able to demonstrate a loss of business as a result of the defamation in order to establish a right to the recovery of money. However, some types of statements are so damaging that the plaintiff does not have to prove any economic loss. These statements tend to be those that accuse the plaintiff of sexual impropriety or criminal conduct.
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What remedies does a railroad worker, who is injured while working, have?
Most individuals injured at work are prohibited from filing ordinary personal injury lawsuits against their employers. Instead, injured workers are generally required to file a claim under the state’s workers compensation procedure. An injured railroad worker must bring a claim for benefits under the Federal Employer’s Liability Act (FELA) for compensation for his or her injuries. FELA is similar to many state workers’ compensation systems with the exception that a railroad employee must be able to prove some level of employer negligence in order to make a recovery. In comparison, most state systems are based upon no-fault theories of recovery where neither the negligence of the employer or the employee is examined. In practice, it is generally not difficult for an injured railroad employee to prove that the employer was, at least to some degree, negligent.
Laws, rules, and regulations require a railroad to furnish a reasonably safe workplace for the benefit and protection of its employees. In keeping with this requirement, a railroad has a duty to inspect and discover defects that may result in injury. In some circumstances, this may include the duty to uncover defects that should be obvious to a railroad employee. A railroad also has a duty to warn its employees of any hazardous or unsafe conditions of which it is aware, or should be aware.
A railroad is also required to take other steps to ensure the safety of its workers, including providing adequate training and supervision, appropriate tools and safe equipment, and enforcing only reasonable work quotas. The FELA claimant can usually show that at least one of the required regulations has not been met, thereby establishing the employer’s negligence.
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What is a slip and fall action?
A slip and fall action is a type of personal injury lawsuit filed by a plaintiff who has been injured by a slip and fall, usually on the defendant’s property. Examples of very common slip and fall plaintiffs include the grocery store patron who slips on a spill or a piece of food on the floor, and falls, causing injury to himself or herself; and a hotel guest who slips in the shower and injures his or her back in the process.
The plaintiff in slip and fall cases must usually show that the owner of the property had notice or knowledge of the condition but failed to clean it up and rectify it within a reasonable amount of time. If the plaintiff slipped on a grape that had been lying on the floor for two hours, and the manager of the store had walked past it and inspected it five times before asking someone to clean it up, liability is likely.
If the plaintiff has knowingly encountered a hazard, then he or she may have trouble holding the defendant liable. For example, if a hotel guest squirts baby oil onto the floor of the shower; steps into the shower and attempts to do the jitterbug; and then falls and breaks an ankle, liability on the part of the hotel is highly questionable. However, if the cleaning staff in the hotel repeatedly tells management that the non-skid treads in the bathtub for room 212 are missing and the hotel fails to replace them, the hotel will probably be liable for damages to a guest who is injured.
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Can anyone bring a wrongful death claim?
No. Generally, most states that recognize a wrongful death cause of action limit the pool of potential plaintiffs. Some states limit this group to the deceased’s primary beneficiaries, defined as the surviving spouse and the deceased’s children. Other states allow the parents of the deceased individual to bring a wrongful death claim. In addition to these individuals, some states recognize the rights of any dependent, whether closely related or not, to bring a wrongful death claim provided the person actually a depended on the deceased for economic support. To those jurisdictions, it apparently makes little to no sense to allow the second cousin once removed of the deceased, who saw him once every five years at a family reunion, to recover for the loss of the deceased’s future earning potential.
Some states require any recovery gained in a wrongful death action to be divided amongst the deceased’s heirs at law or to be distributed to the deceased’s heirs at law as it would in any normal probate proceeding. In these situations, distant relatives may receive some “trickle down” of damages, although they were not financially dependent upon the deceased during his life.
If more than one plaintiff is entitled to recover, all plaintiffs will share in the award. The manner in which the award is divided can be confusing and will depend upon the laws in the particular jurisdiction where the matter is brought.
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