Console & Hollawell Blog

Ask the Attorney: You Can Still Sue If You’re Partly at Fault

By Richard Console on September 16, 2014 - Comments off

New Jersey and Pennsylvania personal injury attorney Richard P. Console, Jr.Asker: Am I at fault for my accident? The insurance company says I’m at fault even though I don’t agree. What should I do?

Attorney: Liability, or who’s at fault and legally responsible, is the basis of personal injury claims. Often, fault is complicated. As you begin the process of moving forward with your life, you might find that an insurance adjuster you have to deal with blames you, at least in part, for the accident. There’s such a thing as comparative negligence, which means both parties share some fault. In New Jersey and Pennsylvania, you can still seek compensation even if you are partially at fault, as long as you’re not more than half at fault for the accident.

Comparative negligence might sound complicated, but it doesn’t have to be – not if you have the right help on your side.

Understanding Comparative Negligence

It is inevitable that in our busy and sometimes dangerous world, some accidents will occur in which a single party – such as a driver or property owner – is not solely at fault. These are accidents in which the actions of two or more parties involved contribute to the accident happening. Typically, states have two ways of creating laws that establish what happens in these cases. In some states, a party that is partly at fault – even in the smallest way imaginable – cannot recover any compensation because of the part it played in the accident.

In theory, a system like this might sound sensible. After all, why should someone get money for the accident they caused? The problem is that the details matter in these cases. Say your accident was a case of premises liability – an incident of a safety hazard on a property that led to a slip-and-fall or other type of injury – in a commercial property, like a store. The insurance adjuster says you should have been watching where you were going instead of having your eyes on your cell phone, but you know that doesn’t excuse the property owner from leaving the floor in a wet and slippery condition. If the appropriate caution signs weren’t used and the slippery condition wasn’t visible from a distance, there’s no reason to suspect you would have seen the danger, anyway. The property owner had a legal responsibility to keep the premises safe – and that obligation doesn’t disappear just because you could’ve been a little more careful.

That’s why some states, including New Jersey and Pennsylvania, allow victims to seek compensation in circumstances of comparative negligence. In these states, both parties could be determined to be partially at fault, but the victim could seek compensation as long as he or she was less than half at fault for the accident. The victim wouldn’t get as much money as he or she might get if not determined to be partly at fault, but could still recover a percentage of the compensation he or she deserves.

Calculating Percentage of NegligenceIf you are considered partly at fault for your accident, expect your compensation amount to be reduced by the same percentage you are at fault. Photo Credit: Corbis Images.

The Challenges of Comparative Negligence

When a case involves comparative negligence, the question becomes, “To what degree is each party at fault?” If you are 49 percent at fault for the accident that caused your injuries, you will likely see a much smaller payout than a victim in a similar situation who is just 20 percent at fault, or just 10 percent. Determining fault in these cases is difficult. Your attorney, if you have one – and you should! – and the insurance adjuster may argue over what each believes the correct percentages are. It’s likely that the insurance adjuster will try to say you are more at fault than you believe and that your lawyer will have to use evidence to back up his or her argument that your percentage of fault should be lower.

It’s a frustrating situation when an insurance adjuster argues that you are at fault for your accident, especially if you believe the other party’s liability is pretty clear. If you’re starting to get exasperated, it’s a sign that you really do need a lawyer to handle the situation. Cases that involve comparative negligence can be especially complex. By trying to deal with the claim yourself, you’re practically inviting the insurance company to take advantage of your lack of legal knowledge. Don’t be surprised if an insurance adjuster seems unwilling to offer you more than a fraction of what you deserve. Instead, be proactive and get someone on your side that can convince the insurer that your negligence in causing the accident was minimal and that you deserve compensation.

 

Oral Arguments Held on September 9, 2014, in Supreme Court Bad Faith Case

By Richard Console on September 16, 2014 - Comments off

Last Tuesday, partner Richard J. Hollawell went before the highest court in the state, the New Jersey Supreme Court, to make oral arguments in the case of Augustine Badiali v. New Jersey Manufacturers Insurance Company over its wrongful and unfair treatment of its policyholder. The argument hinged on a concept we call “bad faith” or simply the breach of good faith in the handling of an insurance claim. Our client’s own auto insurance company refused to pay his uninsured motorist (UM) claim – without an appropriate legal basis for doing so, in our opinion – but proceeded to spend twice what the award amount would have cost just to fight against paying. Now, after five years of us persistently fighting this insurance company, the Supreme Court justices will have their say in the matter. Badiali v. New Jersey Manufacturers Insurance Company may be one case about one individual, but the Supreme Court’s decision could forever impact the way the state handles bad faith cases and the way New Jersey insurance companies treat policyholders.

New Jersey Supreme CourtOn September 9, 2014, we went before the New Jersey Supreme Court, housed in the Richard J. Hughes Justice Complex in Trenton, to fight for our client. Photo Credit: Wikipedia.

How the Case Began

Augustine Badiali has been a client of Console & Hollawell’s since 2006 collision with an uninsured driver in Maple Shade, New Jersey, left him injured. Mr. Badiali had purchased uninsured motorist coverage from New Jersey Manufacturers (NJM), his personal auto carrier, but since he was in his employer’s vehicle at the time of the accident, he was also covered under his employer’s policy with Harleysville Insurance Company. His case should have been finished years ago, when an arbitrator stated that both insurance companies would pay $14,574 for a total award amount of $29,148. Harleysville paid its share, but NJM refused, setting off this lengthy litigation. The company claimed that it didn’t have to pay on arbitration awards worth more than $15,000, despite that its legal responsibility to Mr. Badiali was $14,574, less than the $15,000 threshold. NJM hasn’t backed down on its stance. Neither have we.

Supreme Court Arguments

A crucial part of the case is whether the state of New Jersey will recognize the evidence of NJM’s bad faith in the dispute between Mr. Badiali and NJM. As Richard Hollawell told the Supreme Court justices, we feel that NJM intended not to pay the claim all along and did so because it currently has no fear of consequences under the current state of the law. In order to make a court force NJM to pay its portion of the award, Mr. Badiali was subject to years of delay and was forced to incur counsel fees far greater than the total arbitration award. Mr. Hollawell argued to the court that Badiali must be able to collect his consequential damages.

NJM isn’t the only insurer in the state that acts in bad faith, and Mr. Badiali isn’t the only policyholder in the state to be harmed by it. In fact, representatives from two organizations, United Policyholders and the New Jersey Association for Justice, appeared in the Supreme Court as well, sharing their opinions that the behavior displayed in Badiali v. New Jersey Manufacturers is unfortunately common throughout the insurance industry. New Jersey lawyers E. Drew Britcher and Donald Caminiti joined us in the courtroom, arguing a similar case of bad faith against NJM that involved their clients, Kwabena and Ofelia Wadeer.

Justices now have to take the time to render a detailed decision and write a legal opinion. This may take several months.

For more information about the oral arguments in the Supreme Court case, check out the New Jersey Law Journal and Law 360. You can watch the entire oral argument here or view the clip below. 

 

Does Pot Save Lives? Prescription Painkiller Deaths Decline in Medical Marijuana States

By Richard Console on September 10, 2014 - Comments off

Which drug is more dangerous, one that remains illegal in much of the country or one that’s prescribed by a doctor and taken as instructed? When the drugs in question are marijuana for medical purposes versus powerfully addictive opioid painkillers like hydrocodone and oxycodone, there’s evidence that one of these drugs is significantly less risky than the other. You might not often hear “saving lives” as an argument for legalizing medical marijuana – but new research indicates that could be exactly what’s happening in states that have already done so.

Prescription Painkiller Deaths Decline in Medical Marijuana States New Jersey is among the states that currently permit the use of medical marijuana. Photo Credit: Corbis Images.

Quantifying the Prescription Painkiller Epidemic

Prescription drug overdoses have become an epidemic, a public health crisis, and a massive problem that has the potential to affect any individual who has the misfortune to suffer chronic pain. Addiction to and overdose from prescription painkillers isn’t a problem limited to drug-seekers. Even patients with no history of substance abuse, who begin taking opioid painkillers on doctors’ orders to relieve the severe pain from a serious injury or illness, can find themselves trapped in the nightmare of prescription painkiller dependence – even if they only ever take the medication as directed. It really can happen to anyone. The number of people this has, in fact, happened to is nothing short of startling. Three times as many people now die from prescription painkiller overdoses compared to 20 years ago, the Centers for Disease Control and Prevention (CDC) reported. In 2009, for example, prescription drug overdoses killed 15,500 people. In the past couple of years, the situation has reached the point where more people now die from prescription painkillers than from heroin and cocaine combined. A huge factor in this problem is over-prescription. Doctors are supposed to know the risks of a medication. When they prescribe doses that are too high or taken too frequently or when they fail to minimize the risks of patients becoming addicted or overdosing, they put lives in danger. Over-prescription rates vary widely by state, but the problem exists everywhere, including right here in the South Jersey and Philadelphia area. How exactly does medical marijuana fit into this whole problem? In states that allow it, patients and their doctors can decide to use medical marijuana – a drug without the highly addictive and dangerous qualities of opioid and narcotic painkillers – to relieve their pain. They may be able to decrease or entirely stop their use of prescription pain pills. Now that some states have begun allowing marijuana use for medical purposes, researchers have compared prescription painkiller death rates before and after passing medical marijuana laws. Their findings might surprise you.

Encouraging Stats in Medical Marijuana States

In states that passed laws allowing marijuana use for medical reasons, the number of deaths from prescription painkillers decreased by 25 percent compared to prescription overdose death rates before the law changes, CNN reported. With the epidemic that prescription painkiller overdose has become, a 25 percent decrease in deaths is a big deal. In 2010, states that had legalized medical marijuana saw 1,700 fewer overdose deaths from prescription painkillers than expected, according to CNN. This decrease is great news. Statistically speaking, it means that in a single year, 1,700 people who likely would have died didn’t have to. They were able to get the relief they needed from their chronic pain without exposing their bodies to highly addictive medications that are in the same drug family as heroin. They could treat their pain without developing an addiction, without the unfair stigma, and without the risk of overdosing and dying from their medication. Despite these promising findings, even the researchers involved in the study stated that “the link between medical marijuana laws and overdose deaths is not completely clear,” CNN reported. Further research is needed to determine how much of a role other possible explanations besides the legality of medical marijuana may play in the decreased death rates. Yet the research does, at least, provide a compelling possibility to explore in the struggle to counter the public health crisis of prescription medication addiction and overdose. So far, just under half the states in the country – 23 – permit the use of medical marijuana for chronic pain and other disorders, according to WebMD. Because 10 of these states only recently enacted medical marijuana laws, only the 13 states that had laws on the books prior were considered in the study. If further findings support this theory that legalizing medical marijuana provides patients with a safer, effective alternative to opioid painkillers, perhaps more states will follow suit and more lives will be saved.

 

Ask the Attorney: Pre-Existing Injuries Don’t Have to Hurt Your Claim

By Richard Console on September 9, 2014 - Comments off

New Jersey and Pennsylvania personal injury attorney Richard P. Console, Jr.Asker: Will prior injuries make a difference in getting a fair personal injury settlement? My doctor has indicated this is a new injury that shouldn’t be attributed to the previous injury or that this accident worsened the existing injury. What if I had surgery, physical therapy, or chiropractic care before?

Attorney: Unfortunately, there’s no limit on the amount of times you can find yourself in the wrong place at the wrong time. Bad luck is what often causes innocent people to get hurt in accidents. They have the misfortune of encountering a reckless driver, a careless physician, or an environment with a hidden safety hazard. Sometimes bad things happen to good people more than once, and that’s when you wind up with questions about pre-existing injuries. Having been injured in the past can hurt your claim, but it doesn’t have to – not if you handle the situation correctly from the start.

What Prior Injuries Mean for Your Claim

Having a prior injury doesn’t prevent you from pursuing a personal injury claim, but it is something that your doctor and lawyer need to know about immediately. To be able to diagnose and treat your injuries to the best of their abilities, medical providers must have accurate information about your health before the accident. Otherwise, your provider could be forced to waste valuable time and money – including yours – trying to understand inconsistencies between the information you are disclosing and his or her professional observations. You’ll get better care if you are truthful about all of your injuries, including old ones.

Failing to mention, or lying about, any previous injuries can also hurt your claim for compensation. When an insurance adjuster or defense attorney finds out about your previous injuries – and there’s a good chance he or she will – the fact that you tried to hide this information will hurt your credibility. Insurers routinely try to make claimants with legitimate damages look like they are just money-hungry, sue-happy fraudsters. You may be tempted to keep past injuries a secret, especially if you know that they’re distinct from your accident injuries or if they have already healed, but doing so could give ammunition to the insurer’s arguments (however unsubstantiated they may be) against paying you what you deserve. Be open and honest with your attorney about any past injuries or even accidents that didn’t involve injuries, and let your lawyer determine how much information needs to be shared with the insurer.

The Bad News

You’re right to have some concerns about pursuing a claim with pre-existing injuries. After all, insurance companies aren’t on your side after an accident. They want to pay out as little as possible, even if that means the claimant – in some cases, their own policyholder – gets the short end of the stick. Insurance adjusters are likely to fixate on your prior medical complaints and try to say that these old injuries, and not the accident, caused the medical problems you’re currently experiencing. For that matter, we’ve even seen insurance adjusters try to argue an injury was pre-existing even when they have the patient’s complete medical records in front of them and there is clearly no indication of such a prior condition. Yes, an insurance adjuster might try to stop you from getting the money you deserve because you have prior injuries – but that doesn’t mean the insurer will be successful.

The Good News

The biggest challenge in handling a case with prior injuries is being able to prove either that this new injury is distinct from your old injury, or that the accident worsened the existing injury. This can be done. Your medical records hold all the information we need. Suppose the insurance adjuster argues that the herniated disc you sustained in the accident was from a work injury years ago. Comparing MRI films and doctor’s notes from them to current films can show that the damaged disc isn’t in the same area, or that the injury had healed long before this accident. Even if you had surgery, chiropractic care, or physical therapy, the records that illustrate your progress toward recovery can help us show that your current injuries are either distinct from the pre-existing injuries or that the old injuries had healed prior to the accident.

When accident victims ask about prior injuries, what they’re really asking is whether they will suffer yet another misfortune – this time, being denied the compensation they deserve. Yes, your old injuries can impact your claim, but by dealing with the issue early on instead of trying to sweep it under the rug, you can put your side in control of the situation. I urge clients to always talk honestly with their doctors and lawyers when it comes to pre-existing injuries. Otherwise, both your health and the value of your claim could face the negative consequences.

 

Taking This Antibiotic Could Raise Your Risk of Cardiac Death by 76 Percent

By Richard Console on September 3, 2014 - Comments off

You’ve probably heard that antibiotics are widely overprescribed. What you might not know is that there’s a far more imminent potential risk when taking these drugs than medication-resistant superbugs – things like heart failure and death, according to new research.

Antibiotic clarithromycin could raise cardiac death riskIf you’ve had a common bacterial infection – or if you were prescribed an antibiotic even without having a bacterial infection – there’s a chance that you’ve taken this medication. Photo Credit: Wikimedia Commons.

What the New Study Says

Each year, millions of patients take clarithromycin to treat bronchitis, ear infections, pneumonia, sinus infections, throat infections, skin infections, and even stomach ulcers. Clarithromycin’s uses are comparable to that of other antibiotics, like penicillin V. However, clarithromycin and belongs to the macrolide class of antibiotics, along with the medication roxithromycin. Previous research has suggested that this class of antibiotics is associated with an increased risk of experiencing heart rhythm problems, some serious enough to kill patients, according to MSN. This concern prompted a group of Danish researchers to compare the heart risks of clarithromycin with roxithromycin and penicillin V – and what they found is pretty disturbing.

Compared with penicillin V, which CBS News reported has no known cardiac risk, clarithromycin increased patients’ likelihood of suffering cardiac death – that is, heart-related death – by as much as 76 percent. That’s right, 76 percent. Interestingly, roxithromycin didn’t seem to raise heart death risk, even though it belongs to the same group of antibiotics as clarithromycin. The data raises an urgent question. If one antibiotic can treat the same bacterial infections with similar effectiveness and no cardiac death risk, why is another antibiotic associated with this 76 percent increase in risk being prescribed to millions of patients – patients who could potentially die from the medication?

Rethinking Antibiotics

I don’t want to incite panic or discourage patients currently taking clarithromycin to from following their doctor’s orders. After all, even though a 76 percent increase in cardiac death risk sounds alarming, it translates to about 37 deaths per every 1,000,000 patients – certainly a concern, but not necessarily one of epidemic proportions. And the increase in heart death risk isn’t permanent. Once patients discontinue or finish taking the antibiotic, their risks return to normal rates.

However, this research should remind us all how flawed and potentially dangerous our perception of antibiotics is, generally speaking. We tend to forget that even these common medications have side effects, and that some of them can be serious. Clarithromycin isn’t even the first antibiotic to raise the risk of cardiac death. Azithromycin, better known as Zithromax or the “Z-Pak,” has also been linked to heart problems and death, and the drug can be especially dangerous if patients receive incorrect dosages. Yet many patients still demand antibiotics when they don’t need them, and many doctors are willing to oblige.

The scientists involved in this research have already said that further study is needed to confirm their findings, but even they acknowledge that the matter is urgent. With millions of people taking this antibiotic, it could mean that dozens of patients are dying needlessly from cardiac problems caused by the medication. Scientific research takes time, so in the meantime, make sure you always discuss all medication concerns with your doctor. If you’re at risk for heart disease, talk to your doctor about whether the antibiotic is necessary or whether one medication, like penicillin, might be better than another based on your medical history. If you already suffered a heart attack or other cardiac event while taking clarithromycin, make sure you get any help you need to get your life back on track – both medical and legal help. You don’t have to go through this alone.

 

Ask the Attorney: You Might Have a Med Mal Claim If…

By Richard Console on September 2, 2014 - Comments off

New Jersey and Pennsylvania personal injury attorney Richard P. Console, Jr.Asker: Can I sue a medical professional for malpractice? What about suing a doctor for withholding information that caused a delay in treatment?

Attorney: Medical malpractice is a common focus of questions from clients and prospective clients. “Med mal” claims are notoriously complicated, even for those of us in the legal industry – and these cases are extremely confusing for people with no legal background. Most people don’t understand what constitutes medical malpractice or who they can sue and under what circumstances – just as they may not know about obstacles to their claims until it’s too late.

Understanding Medical Malpractice

What is medical malpractice? It’s not as simple as an unfavorable outcome. Medical malpractice can be committing an act of recklessness, like performing surgery on the wrong patient or the wrong body part, but it can also mean a failure to perform an expected action, like delaying a necessary procedure or missing what should be a clear diagnosis. The simplest definition of what constitutes medical malpractice is behavior that falls below an accepted standard of care. The standard of care means the standards that other members of the medical community would expect given the circumstances.

Let’s talk about what that phrase “standard of care” means. Different doctors may not always make the same diagnostic or treatment decisions. They may choose one medication, procedure, or test over another. It’s when a doctor who chooses to act in a way that is out of line with the practices considered acceptable by the larger community that the behavior is malpractice.

Obviously, when a doctor operates on the wrong patient or the wrong body part, there is negligence in the medical professional’s failure to check patient records. Other instances of malpractice are more subtle, and patients and their families may unfortunately never realize that they have the right to pursue a claim. For example, when a patient is diagnosed with cancer, doctors may choose from several treatment options, like radiation, chemotherapy, and surgery. Depending on the circumstances, all of these options might be within the acceptable standard of care. What’s not acceptable is neglecting to ever tell the patient that the cancer exists, allowing the disease to become more severe and less treatable over time.

Some of the medical malpractice issues that people most commonly ask about include:

  • A medical professional acting carelessly and causing you harm. For example, say a surgeon left a surgical instrument inside your body during a surgery. If this circumstance further damaged your health, you might have a med mal claim.
  • A doctor delaying a diagnosis or procedure to your detriment. This can range from obstetricians who delay necessary C-sections, leading to birth defects, to medical professionals who fail to diagnose cancer in patients and delay potentially life-saving treatments. It may take getting a second opinion or, unfortunately, the development of a more serious health problem to determine that the doctor’s actions actually caused harm.
  • Over-prescription of potentially dangerous medications, like opioid painkillers. When doctors are careless with prescribing these drugs, addictions and fatal overdoses can happen through no fault of the patient.

Medical malpractice comes in many forms, so even if your situation isn’t on this list, it’s still worth consulting an attorney to see if you have a case.

Who You Can Sue

Naturally, people associate medical malpractice with doctors, but any medical professional who fails to provide patients with the accepted standard of care can be sued for medical malpractice. Nurses, chiropractors, and medical specialists can all be responsible for negligence that causes harm to a patient. I once had a client, a little girl with a health condition that kept her dependent on a ventilator, who suffered a serious brain injury because a home healthcare nurse disobeyed procedures for cleaning and changing ventilator tubes and caused the child to be without oxygen for several minutes. This nurse had neglected to provide the standard of care this little girl deserved, so she could be held accountable in a med mal claim.

Reasons Why You Might Not Be Able to Sue

The biggest reasons why you might not be able to sue a doctor for medical malpractice include:

  • Timing: In civil claims, there’s a deadline, called the statute of limitations, that determines how much time you have to file a lawsuit before your right to pursue compensation effectively disappears. Usually that statute is two years from the date of the incident, but the time may be longer for minors (two years from the date they turn 18) or if time passed before it became apparent that medical malpractice was a factor (called the discovery rule, this means the deadline is two years from the date the patient knew or should have known malpractice occurred). Your time is limited, so don’t wait!
  • Damages and expense: Pursuing a med mal claim is incredibly expensive. Lawyers need to secure on your behalf expert witnesses– medical professionals who can testify that the care you received fell below the standard of reasonable, acceptable care for the circumstances. Because it costs so much money to pursue these claims, it will only be worthwhile to you if the damages and potential for financial recovery are substantial. If you’re not sure if your damages are worth pursuing a claim, you can always take advantage of a free consultation with a law firm.
  • Trying to do it alone: Med mal claims are complex and technical. They are among the more difficult and expensive to pursue claims even for experienced attorneys. For people without a legal background, winning such a claim alone is pretty much impossible. You’re not going to get the money you deserve, and you would have to sink a lot of money into pursuing the claim to begin with. If you take just one insight from this answer, it’s this: don’t try to handle a med mal claim on your own. You need a lawyer.

 

Ford Vehicle Sees Recalls in the Double Digits

By Richard Console on August 28, 2014 - Comments off

It seems one 2013 Ford vehicle just can’t escape its bad luck – pun intended. Despite being on the road for just a couple of years, the relatively new 2013 Ford Escape SUV has been recalled 11 times as of mid-August 2014 – and that means plenty of frustration for its owners.

Ford recallThe 2013 Ford Escape is considered a compact crossover SUV. A recall announced in August 2014 was the vehicle’s 11th so far. Photo Credit: Wikimedia Commons.

Recalling Recent History

The 2013 Ford Escape has had numerous problems. (Granted, it’s hard to say which would be worse, 11 failings to fix the same problem or 11 unique problems.) Among those issues are air bags that didn’t deploy on time, doors that flew open while the car was in motion, and the potential for oil to leak inside the engine and start a fire, according to Consumerist. Now the newest issue, announced in mid-August, is one that affects close to 160,000 vehicles – both Escape models and Focus ST models – in North America, Reuters reported. A faulty wiring harness could affect the power going to your engine. Although no crashes have been reported as of yet, the wiring problem poses a serious safety hazard.

How to Handle a Recall

Without question, recalls are frustrating. If you happen to drive a 2013 Ford Escape or another vehicle that’s been the subject of recalls, you need to know what to do next. First, don’t panic. A safety recall is something to take seriously, but don’t let yourself get so worried that it distracts you from driving safely or using caution in your other activities. Remember that just because you own a certain make and model doesn’t necessarily mean that your car is one of the recalled vehicles. Often, recalls involve only cars manufactured at a specific place or during a certain set of dates. If you don’t get a recall notice about your vehicle from the manufacturer or dealer, you can take matters into your own hands and check SaferCar.gov to see if your car is among the recalled vehicles. Make sure you have your vehicle identification number (VIN).

On the other hand, if your car is subject to a safety recall, don’t dismiss it. Doing so could cost you your life or the lives of the people you love. Contact your local dealership to find out when it will have the parts necessary for the repairs, and make your appointment as soon as possible. Remember, you don’t have to pay for the safety defect to be fixed, so there really is no good reason to wait.

For the sake of those drivers getting fed up with multiple recalls, let’s hope the 11th time is the charm for the 2013 Ford Escape. In a year overshadowed by large-scale recalls from seemingly every major automaker, I guess we shouldn’t be surprised to find the same models in need of repairs more than once. Hopefully the massive numbers of recalls are a step in the right direction – a step toward making cars properly and catching potential safety defects before they ever make it out onto the road.

 

Parents’ Roles in Teens Texting and Driving

By Richard Console on August 27, 2014 - Comments off

Pop quiz for parents: When your teenagers are talking on cell phones or texting while driving, who are they talking to?

Question MarkPhoto Credit: Corbis Images.

You’d probably guess that friends rank pretty high on the list. You might make the same assumption about boyfriends or girlfriends. What might surprise you is more than half of teen’s phone calls behind the wheel involve you – parents. And that’s not all.

We’re all quick to blame the younger generation for bad driving behaviors, but new studies are showing that parents may be – unintentionally – playing a role in their teens’ use of cell phones behind the wheel.

The dangers of texting and drivingYou hope your teen knows better than to text behind the wheel – but what if the person he or she is sending a message to is you? Photo Credit: Corbis Images.

Quantifying Parents’ Role in Teen Distraction

Let’s look at the numbers. A shocking 53 percent of teenaged multitaskers who admitted to talking on a cell phone while driving were on the phone with their mothers or fathers, Today reported. Then – perhaps even more troubling, given the level of distraction – there’s the problem of texting while driving. Among all drivers aged 18 – remember, that’s all drivers this age, not only the ones that confessed to texting and driving – 18 percent admitted to texting mom and dad behind the wheel. That’s nearly one-fifth of the entire age group.

Are you texting back?

Having the Distracted Driving Talk

There are ways to prevent the problem of texting and driving, or talking and driving. If you want to know where your teen is – which is understandable – you and your child could work out a system where the young driver sends you a text message before putting the car in motion. Or you could reach an understanding that if you ever call or text your teen while he or she’s behind the wheel, he or she knows not to respond and you know to wait patiently for a response until it’s safe for your teen to call or text you back.

Then there’s the option of putting your phone to work on the problem, too. Smartphone apps that let you track whether your teen is texting behind the wheel are an option, but I prefer the ones that disable the phone temporarily while driving. This way, there’s no temptation to answer a call or text – from mom and dad or anyone else – while driving, because all alerts and notifications are silenced. Alternatively, some phones have a special “driving mode” that will read out information like who’s calling or sending a text message. This way, the young driver doesn’t have to fumble for the phone to see if the call or message is important, and he or she can wait until there’s a safe place to pull over before responding.

Another way to encourage your teen not to drive distracted is by setting the right example. Unfortunately, it’s not only kids who are looking at the phone when they should be looking at the road. Simply saying, “I’m a more experienced driver” doesn’t cut it. Experience doesn’t matter if you’re driving the length of a football field blind – and that’s essentially what you’re doing every time you look at the phone for even a few seconds. Putting an end to distracted driving is everyone’s responsibility – and I say that not only as a car accident lawyer who’s seen too many tragedies, but also as a parent myself.

 

Ask the Attorney: Injured Passengers Can Sue Drivers without Ruining Friendships

By Richard Console on August 26, 2014 - Comments off

New Jersey and Pennsylvania personal injury attorney Richard P. Console, Jr.Asker: I was a passenger in my friend’s car when I was hurt in an accident. Is it somehow dishonest to sue my friend? Will I be a bad friend if I try? Will this harm my friend in any way?

Attorney: Just because you weren’t driving the vehicle doesn’t mean that your injuries are any less severe or the damages you have suffered are any less worthy of compensation. But your passenger status may mean you don’t know where to go from here or who to seek compensation from – and how getting the money you deserve could affect the driver.

It’s no surprise that passengers are often friends of their drivers. Friends go places together. They pick each other up or drop each other off. But sometimes during joy rides or errands, they have the misfortune of being part of a collision – and while that can change everything, it shouldn’t have to end a friendship.

Understanding the Claims Process

In a typical accident, the person who is not at fault will seek compensation from the negligent party, the one that caused the accident. This may or may not mean a lawsuit. A personal injury attorney will submit a claim to the at-fault party’s insurance company on behalf of the injured victim. Sometimes the lawyer and the insurance adjuster can reach a settlement before a lawsuit is ever even filed. If a lawsuit is necessary, the driver is personally named in the suit, but his or her insurance company has a legal obligation to defend him or her and cover the settlement, arbitration award, or jury verdict up to the individual’s policy limits.

Figuring Out Fault

A car accident is virtually never the fault of the passengers. Assuming you didn’t forcibly cover the driver’s eyes while the car was in motion, the accident simply isn’t your fault. But is it the other driver’s fault? Your friend’s fault? A combination?

When a passenger pursues a claim, it’s possible that both drivers involved will be named as defendants to make sure that the victim isn’t missing out on the compensation he or she is entitled to pursue. Sometimes only the other driver’s insurance company ends up paying anything. Other times, the friend is found negligent. If the claim can be settled early on in the process, it’s possible that the passenger will never have to actually sue his or her friend at all. Still other times, the passenger can seek compensation from any uninsured/underinsured motorist’s (UM/UIM) coverage on the friend’s policy even if the other driver was at fault.

Suing a Friend

You have the legal right to sue a friend, but it can be hard to feel comfortable doing so. You don’t want to harm your friend or lose your friendship, but not suing may not be an option if your injuries are severe.

Let me ease your conscience, and maybe your friend’s worries, too. There is nothing unethical about you pursuing a claim against someone you care about, and doing so doesn’t make you a “bad friend.” It just makes you a person who needs compensation for the very real damages you have suffered. Depending on the situation (if you’re going through UM/UIM coverage, for example), you may not even be accusing your friend of causing the accident. Even if your friend was at fault, you’re not saying that he or she is a bad person because of the mistake.

Further, even though your friend is personally named in the lawsuit, it’s not like you’re literally taking money from his or her wallet or bank account. Your friend has auto insurance for a reason, to protect their family from the financial repercussions of an accident. In the instance of a covered event, the insurance company has a duty to pay claims up to the agreed-upon coverage limits. Law firms like ours never go after individuals, so you don’t have to worry. The worst that will happen to your friend is the possibility of insurance rates increasing – and that could happen whether or not you pursue a claim if the collision was considered a chargeable accident or if your friend got a ticket for a traffic violation.

Just because it’s called a personal injury claim doesn’t mean that suing a driver who is your friend is a personal attack. In fact, we often hear this question from the opposite point of view – that of the driver, concerned about making sure his or her friend is able to get the compensation they need, asking, “Should my friend sue me?” Friends don’t want each other to make the choice between living with chronic pain and drowning in medical bills just to afford treatment. They don’t want to see someone they care about choose between preserving their friendship and putting food on the table for their family. Sometimes suing a friend and collecting compensation from that friend’s insurance company is the only way to get the compensation you deserve after an accident.

 

As Lipitor Lawsuits Multiply, It’s Not Too Late to Get Help

By Richard Console on August 25, 2014 - Comments off

If taking Lipitor hurt you more than it helped, you’re obviously not alone – and the swell of lawsuits against pharmaceutical manufacturer Pfizer proves it. This isn’t the first time I’ve written about Lipitor, but with the number of lawsuits over the Lipitor- diabetes link nearing 1,000 as of earlier this month, I thought it was worth another mention. Many victims of dangerous medications don’t realize that the prescription drug they took could have caused the serious medical condition they subsequently developed. This means there could be far more affected Lipitor patients out there, unaware that they are leaving money on the table even as they begin their own costly battles against diabetes.

Lipitor lawsuitsApproximately 29,000,000 patients across the nation have been prescribed Lipitor to decrease cholesterol, but the widely used drug could have serious negative health effects for some patients. Photo Credit: Wikimedia Commons.

The Progression of Lipitor Lawsuits

When most of us think about medications’ side effects, we tend to imagine inconvenient and temporary conditions like nausea and drowsiness – not the development a chronic disease that could shorten patients’ lifespans by a full decade. Yet that’s exactly what can happen when Lipitor patients, particularly to women past the age of menopause, develop diabetes from taking the cholesterol-fighting drug.

The trouble for Pfizer started in 2012, when the United States Food and Drug Administration (FDA) first announced what they called a “small increased risk” in developing diabetes, MSN reported. Yet until about five months ago, just 56 patients had filed lawsuits against the makers of Lipitor. One factor that may have contributed to the massive upswing of lawsuits in recent months is a decision by a federal judicial panel to try all of the lawsuits in one federal courtroom, MSN reported. The first trial is set to begin in July 2015. Pfizer has denied liability at this time.

“Side Effects” Sounds Like an Understatement

By now, we’re all aware that virtually every drug has side effects. Lipitor, the best-selling prescription medication in history, is no different. Yet it’s not okay for a drug to expose patients to numerous and potentially deadly complications like those that accompany type two diabetes just because that medication happens to rake in more than $10,000,000,000 per year. In the case of all drugs, the expected benefits must outweigh the risks – but in women, and particularly the postmenopausal women involved in these legal actions, that may not happen. Plaintiffs’ lawyers have argued that women actually see fewer benefits from taking drugs like Lipitor than men do, and they face greater risks of developing diabetes, Reuters reported.

If you, too, took Lipitor and were subsequently diagnosed with type two diabetes, don’t assume it’s too late for you to get what you deserve. A thousand patients are fighting back. So can you.

 

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