Recently in Wrongful Death Category

March 20, 2015

Alabama Supreme Court Weighs Wrongful Death in Lemley v. Wilson

It is well-established under Alabama's workers' compensation law that the exclusive remedy workers have to pursue action against their employer is worker's compensation. That means employees in most cases can't sue their company for on-the-job injuries.
However, workers can pursue legal action against third parties who may be responsible for injuries arising from employment.

Such was the case in Lemley v. Wilson, wherein a city-employed worker was struck by a vehicle while directing traffic. He later died of his injuries. The worker's father pursued legal action against the driver who struck him.

The case went to trial, and jurors sided with defendant. However, trial court granted plaintiff's motion for a new trial. Defendant appealed, and the issue of the new trial was heard by the Alabama Supreme Court, which reversed and remanded. The high court ruled there was ample evidence to support jury's findings, even if there was also ample evidence to support plaintiff's assertions.

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March 10, 2015

Alabama v. Hendrix - Drunk Driver Who Caused Fatal Crash Will Not Be Charged

In the spring of 2005, a man who was heavily intoxicated barreled down U.S. Highway 278 shortly before Midnight in Double Springs. He slammed into another vehicle head-on, and the other driver was killed. The drunk driver was severely injured, suffering traumatic brain injury.
A year later, he was indicted by a grand jury on vehicular homicide for causing the death with criminal negligence by committing three traffic violations - driving drunk, speeding and driving on the wrong side of the road. However, before trial, defendant was deemed not competent to stand trial, and the criminal trial judge dismissed the charges with prejudice, meaning they couldn't be refiled. The state didn't appeal this order.

But then six years later, the state moved to indict again on these same charges, in spite of that order, on grounds defendant's condition had improved. Recently, the Alabama Court of Criminal Appeals affirmed the trial court's dismissal of the charges based on the new indictment, finding prosecutors never sought modification of that "with prejudice" order, and therefore had not covered all their procedural bases.

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February 28, 2015

Herland v. Izatt - Gun Owner Owed Duty to Impaired Guest

The case of Herland v. Izatt began when an intoxicated party guest picked up a loaded gun belonging to the host and accidentally shot herself in the head. firearm.jpg

Although the host/gunowner was not the subject of criminal charges for the horrific accident, the woman's family filed civil negligence action, alleging general negligence, premises liability and negligent entrustment.

While the trial court in the case granted summary judgment to defendant, finding he owed no duty of care to his guest, the Utah Supreme Court reversed. Specifically, the high court ruled that gun owners do have a duty to exercise reasonable care in supplying a firearm to an intoxicated individual.

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February 22, 2015

Rice v. Corasanti - Pre-Death Suffering a Factor in Wrongful Death Claim

When a loved one is killed as a result of someone else's negligence or criminal act, a civil wrongful death case can focus at least partially on whether or how much decedent suffered prior to death.
This is often an especially painful and difficult element to address because no one wants to think about those last moments in which someone for whom they cared experienced deep distress, severe pain or great fear. Still, it may be necessary to address because courts allow for greater compensation when a person was aware and suffered greatly before death, as opposed to if the person died suddenly or had no awareness.

This has become an issue in a recent hit-and-run DUI wrongful death case in New York, where the family of an 18-year-old pizzeria worker is suing a doctor alleged to be responsible for her death. In Rice v Corasanti, the question of the victim's pre-death pain and suffering has become central, and, unfortunately, hinges on a witness who has been inconsistent with her testimony.

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December 30, 2014

Grant v. Wiley Sanders Trucking Lines - Deciding Estate Representative for Alabama Wrongful Death Lawsuit

The trauma of losing a loved one as a result of negligence can be compounded when there is a dispute regarding who may be named personal representative of decedent's estate.
The question is a crucial one because while multiple people may be dependents or have standing to collect on a wrongful death claim, only one person can file claim - and that's the personal representative. This person must be named to this position before litigation can proceed.

Even then, it is not completely out of the ordinary for disputes to occur, as the recent case of Grant v. Wiley Sanders Trucking Lines, Inc., before the Alabama Supreme Court, reveals.

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August 22, 2014

Force v. Am. Family Mut. Ins. - Pursuing a Wrongful Death Claim

In cases of wrongful death in Alabama, state legislators have limited the ability to file to the individual acting as the personal representative of the deceased person's estate. From there, any damages awarded will be distributed among legitimate claimants, which can include a spouse, minor children, adult children, parents and other dependents.
Disputes among family members regarding distribution of these funds is common, whether occurring with the personal representative of the estate or, in other states that allow individual family members to bring wrongful death claims, at the trial level. In either scenario, it's a matter for the courts to decide, and having an experienced Montgomery wrongful death attorney to help guide you through the process can be invaluable.

In the recent case of Force v. Am. Family Mut. Ins. Co., the Wisconsin Supreme Court was tasked with deciding whether the guardians of minor children of a deceased man were entitled to collect damages for wrongful death, even though his estranged spouse was not permitted to make a recovery under the law.

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July 17, 2014

Verdugo v. Target Corp. - Retail Store Had No Duty to Keep Medical Device on Hand

Per a new ruling by the California Supreme Court, large stores in California are not required to keep automatic defibrillators on hand to treat patrons and/or workers who suffer from cardiac arrest. puzzleheart3.jpg

The plaintiffs in the wrongful death lawsuit of Verdugo v. Target Corp. argued the retailer should have kept one of the devices on hand as part of its first-aid plan. Ultimately, however, the state's high court found that would be an unfair burden for the retailer to shoulder.

Still, our Montgomery personal injury attorneys understand the courts left it open for lawmakers to decide whether a requirement to keep the life-saving devices on the premises is necessary.

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June 30, 2014

Reducing Medication Errors in Alabama: Hospitals Try New Strategy

Dangerous drug interactions and medication errors account for some 7,000 deaths in hospital emergency rooms nationwide each year, according to the U.S. Food and Drug Administration.
Of course, such errors can occur in any type of health care facility, including nursing homes, long-term care facilities and dialysis centers. However, Montgomery wrongful death attorneys recognize emergency rooms as particularly risky because of the fast-paced nature of the environment. It's easy for a decimal in a prescription order to become misplaced or for a doctor's handwriting to be misunderstood by a harried nurse administering the drug.

It's exacerbated by the fact that in a doctor's office setting, a doctor may be counting on the fact that if there is a problem, a pharmacist will fact check him later. In an emergency room, it doesn't work like that. Or at least, it didn't used to work like that.

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April 10, 2014

Alabama Supreme Court: Damage Caps Not Applicable for City Worker Sued Individually

A young boy in Montgomery was electrocuted when he came in contact with a broken chain link fence that had become electrified due to improperly secured wiring at a commercial building next door to his great-grandmother's house.
Following his death, his mother filed a lawsuit against not only the owner of the property, but also the city inspector who had deemed the property to be in safe condition several months earlier. Recently, that case, Morrow v. Caldwell, was heard by the Alabama Supreme Court on the issue of state-agent immunity and damage caps.

When the mother filed the lawsuit against the city electrical inspector, she sued him in his official capacity. He responded by claiming state-agent immunity. She then amended her complaint to sue him in his individual capacity for "individual acts of negligence and wantonness that contributed to the death of (her son)." She alleged he hadn't followed proper protocol, and had either intentionally or in bad faith allowed the property to be cleared for electrical restoration (it had been off for eight months prior, which is why the inspection was required).

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March 24, 2014

Dangers of Delaying Civil Lawsuit for Car Accident Injuries Until End of Criminal Case

Sometimes in cases of Montgomery car accident injuries, at-fault parties may be facing criminal charges as well as the civil complaint. arrested.jpg

For example, a drunk driver causes serious injury or death to others on the road, and is now facing felony charges of DUI manslaughter and DUI property damage.

It's true that at the conclusion of some criminal cases, the judge may order the defendant to pay restitution to the victim, and this is achieved without the victim incurring the expenses that a civil case would necessitate. It's also true that some courts may order that a civil proceeding be halted until the conclusion of a criminal case. (This was what happened in the recent case of Hardiman v. Cozmanoff, reviewed by the Indiana Supreme Court.)

However, this does not mean that a civil personal injury case is not worth pursuing or that you should wait any length of time before consulting with a lawyer or filing the case. In fact, there are a number of reasons why you should at least initiate the civil action prior to the completion of the criminal case.

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January 25, 2014

Feeding Tubes, Elder Care & Wrongful Death Claims in Montgomery

There are some critical care situations in which feeding tubes are ordered by doctors as a short-term solution to get nutrition to patients who are unable to eat.
It's a relatively simple surgery, but is generally only recommended for extreme or complex conditions. However, for elderly patients and particularly those with dementia who struggle to swallow, feeding tubes have a tendency to become a longer-term answer to malnutrition.

Inserted through the abdominal wall and into the stomach, common complications of feeding tubes include diarrhea (which can in turn cause bed sores), as well as distress from having some type of foreign object in the body.

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June 6, 2013

Summer Brings Drowning Risk to Alabama

Another devastating case of Alabama accidental drowning was reported recently, this time in Birmingham and involving a 3-year-old child.
Deputies are still investigating but report that the child was visiting his grandparents when he somehow managed to get out of the house and made his way to a nearby pool without anyone noticing. Upon discovery, the child was rushed to the hospital, where he was pronounced dead.

Our Montgomery wrongful death attorneys can think of almost nothing more absolutely heart-wrenching than these types of cases. While this incident is still being investigated, it's rare that anyone will face criminal charges in these situations. However, that does not mean that someone was not negligent in the actions leading up to the incident.

Accidental drownings are never purposeful, but they are 100 percent preventable.

As we enter the summer season, we'll sadly see more of these cases because, inevitably, more people will be in and around the pool. Children under the age of 5 represent 75 percent of all pool and spa deaths, according to the Consumer Product Safety Commission. In fact, drowning is the No. 1 cause of injury and death for children between the ages of 1 and 4, and accounts for nearly 400 deaths annually.

These incidents are non-boating related, and often occur not far from parents or guardians.

Populations that are particularly vulnerable are African American and Hispanic children, the majority of whom cannot swim, according tot he CPSC.

Also, about 80 percent of all those who die in drowning are male.

In working to do all we can to raise awareness and prevent these tragedies, it's important for people to understand that drowning doesn't look like what you think it would look like. Many of us have this picture in our minds from television shows that it's somehow a frantic thrashing and splashing and desperate call for help. In fact, it's deceptively silent. In most cases, victims are unable to call or wave for help and instead simply slip beneath the surface.

In many instances of child drowning, adults are nearby, but they may have no idea what's happening. Here are some telltale signs that a swimmer is in distress:

  • The head is low in the water and the mouth is at water level;

  • The head is tilted back with the mouth open;

  • Eyes appear to be glassy, unable to focus, even empty;

  • Eyes are closed;

  • The hair is over the eyes or forehead;

  • The individual is not using his or her legs; rather, they appear vertical;

  • Gasping or hyperventilation;

  • Attempting to swim in a certain direction but not making any progress;

  • Attempting to roll over onto the back;

  • Appearing to be climbing an invisible ladder.

In preventing these scenarios from occurring in the first place, consider the following:

  • Enroll your child in formal swimming lessons;

  • Erect barriers around swimming pools and spas that would prevent your child from gaining access to these areas without the caregiver's knowledge;

  • Remember that drowning can happen anywhere - swimming pool, bathtub, bucket. Close supervision is essential;

  • If your children are boating, have them where life jackets - no exceptions.

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May 29, 2013

Alabama Malpractice Watch: When Hospitals Profit from Medical Errors

General logic might tell us that hospital doctors and staff would want to do everything they could to avoid a surgical error potentially leading to a personal injury or wrongful death. surgeon1.jpg

Civil litigation can be costly, and it may ultimately reflect badly on the institution or individual practitioner.

In reality, our Montgomery wrongful death attorneys understand these entities may have incentive NOT to correct problems or procedures that could lead to a serious injury or death following a surgery.

The reason, according to a new study published in the Journal of the American Medical Association, is that hospitals actually triple their profits when surgical errors are made, compared to when things go smoothly.

On average, researchers found that hospitals were raking in approximately $31,000 more when a patient had developed at least one preventable surgical complication.


Because these complications mean that the patient is going to require longer, more intensive treatment than would have originally been required.

Ultimately, the effect is that hospitals are being rewarded, at least financially, for failing to ensure proper care of patients. The study, conducted by doctors with the Boston Consulting Group at Harvard, analyzed the outcome of some 35,000 inpatient procedures at a Texas-based hospital system covering 12 regions during 2010. It's believed to be the first such study to delve into the effects of complications from surgery when compared to the profit margins of the hospital.

The research team concluded that the findings should be an impetus for payment reform among health care providers.

It's especially important as we consider that the number of Americans who die each year continues to climb. Back in 1999, the Institute of Medicine released statistics indicating that some 100,000 Americans were victims of lethal hospital errors. That would be as if we had four large jets crashing every single week.

And yet, in the last 10 years, despite numerous medical advances, that number is actually on the rise. A 2011 study released by the journal Health Affairs revealed that approximately one-third of all patients admitted to the hospital suffer some complication arising from an error. Even worse, our knowledge of these incidents is fractional, with many of the adverse events stemming from surgical mistakes failing to be properly reported under current reporting methods.

One medical researcher and author was recently quoted as saying that if medical mistakes were collectively a single disease, it would be the No. 1 cause of death in this country.

The Institute for Health Care Improvement reported that out of more than 40 million patients who are admitted to hospitals every year, about 15 million suffer some type of medical harm.

Almost every time there is a hospital error, a patient is going to require additional services to recover (if they do recover), be that in the form of medicine or an extended stay or possibly even additional surgery. Hospitals in turn get paid for every individual service they provide. So outrageously, more mistakes mean more money.

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October 15, 2012

Alabama Supreme Court Reaffirms $4M Wrongful Death Verdict in Boudreaux v. Pettaway

Doctors, hospitals, insurance companies and their attorneys have all of the resources necessary to mount a vigorous defense. And, when all else fails, "delay, delay, delay" is an apt motto for the prevailing legal strategy among large corporations and the law firms making millions to protect them.

Montgomery wrongful death attorneys
note this Alabama Supreme Court decision last month reaffirming a $4 million award in a Mobile wrongful death case is a perfect example of the lengths to which the opposition will go to avoid accepting responsibility. In Boudreaux v. Pettaway the state Supreme Court upheld a $4 million award to the family of a 32-year-old mobile woman who died at Springhill Memorial Hospital in Mobile. 1207445_courtroom_2.jpg

The jury, having listened to all the facts, had originally awarded $20 million to the estate of Paulett Pettaway Hall. The family had sued Dr. Randall Boudreaux and other defendant's including his employer, Coastal Anesthesia. Hall presented at the hospital with abdominal pain and vomiting after having previously undergone gastric bypass surgery. Trial testimony revealed she was given anesthesia via routine induction, despite the risk of aspiration given her medical history.

Post verdict, defendants appealed, requesting a remittitur of the damage award and a new trial. A remittitur is a request of the judge to lower the damage awarded by the jury in a civil suit, typically because it's greater than even the amount requested by the plaintiff. In cases in which it is granted, the victim's family may either accept the reduced award or request a new trial.

In this case, the plaintiff's agreed to the reduced $4 million reward. However, instead of paying just one-fifth of the amount awarded by a jury of the victim's peers, the defendants again appealed, claiming the court should have granted a new trial. And, in the alternative, that it was entitled to a further reduction of the jury award!

A total of $1 million in insurance coverage had already been deposited with the clerk-of-court's office. Court records indicate the anesthesiology practice paid 7 physicians more than $11 million during a recent four-year time span and was generating annual profits in excess of $5 million.

"Given the defendant's income and the strength of their bad-faith claim, as evaluated by the trial court, there is no evidence demonstrating that the current award will financially devastate the defendants," the court wrote in denying both requests.

The court cited Mutual Assurance, Inc. v Madden, 627 So. 2d 865 (Ala. 1993) as it related to settling bad faith claims. In this case, the court notes the victim's family attempted to settle the case within the $1 million policy limits before trial. The insurer refused but then attempted to settle for less than the limits during trial.

"[The adjuster] did indeed put MAG Mutual's insureds at risk for an excess verdict when, during the course of the trial, after hearing all the evidence from all the expert witnesses establishing that there were breaches of the standards of care, [the adjuster] elected instead to try to save his employer money while exposing its insureds to the likelihood of an explosive verdict that would far exceed the $1 million coverage limits."

Unfortunately, this case is far from unusual. In fact, it's typical. When choosing an Alabama personal injury or wrongful death law firm, it's important to select a firm with the knowledge, experience and resources to properly litigate your case.

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