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Medical Malpractice and Inadequate Prenatal Screening

Doctor taking notesWhen you are pregnant, one of the most important steps you can take is to engage in regular testing and prenatal screening. If the tests indicate that your child may be prone to, or will have, a congenital disease or defect, you can either prepare yourself financially for the challenges to come, or you may elect to terminate the pregnancy. Of course, as a lay person, you’ll have to rely on medical advice to know what types of screening you need and when you need them. When your doctor fails to properly conduct appropriate prenatal screening, or when there are errors in detecting birth defects or other health problems, you may have a claim for “wrongful birth.”

The types of screening generally fall into two categories—invasive and non-invasive tests. Generally, you’ll start with non-invasive tests—an ultrasound, blood or genetic tests or what is known as a nuchal translucency test. If those tests indicate abnormalities or concerns, you may want to have one of the more demanding and conclusive procedures, such as an amniocentesis or a chorionic villi sampling. With the amniocentesis, a small puncture is made to your placenta, so that amniotic fluid (which surrounds and protects your child) can be withdrawn and tested. With the chorionic villi sampling, technicians will take a sample of your chorionic tissue for analysis.

As with most things, the earlier you can have prenatal screening or test, the better. The sooner you identify potential problems, the sooner doctors can take remedial measures or the sooner you can decide to end the pregnancy.

Contact the Law Office of Michael J. Hood

At the law office of Michael J. Hood, in Wilmington, we bring more than 30 years of experience to personal injury victims in Delaware and Pennsylvania. For a free initial consultation, contact us online or call our office at 302-777-1000 for an appointment.

Determining Financial Losses in a Medical Malpractice Case

Doctor reading notesWhen you seek medical treatment for an injury or illness, you may not expect a complete recovery. But you don’t anticipate that your condition will worsen because of the carelessness or negligence of medical professionals. When that happens, though, you have a right to seek compensation for your losses. But how do you determine exactly what your losses were?

In any type of personal injury claim, there are what are known as economic losses and what are called non-economic losses. Economic losses are generally those that are easy to identify and calculate, frequently limited to the loss of earning capacity or specific property. Non-economic losses cover less tangible injuries, including pain and suffering, loss of companionship or consortium, or infliction of emotional distress.

When looking at losses sustained because of medical malpractice, you have to break down your damages into three categories—those immediately caused by the negligence, those that will be long-term losses, and those that represent lost opportunities.

With medical malpractice, the immediate losses can include a wide range of effects. You may not be able to work because of your injury or illness. You may require special equipment, need in-home care, require drugs or medication, of have costs of transportation because you can’t drive.

Some of your longer term losses may look similar to immediate losses. Your injury may prevent you from ever returning to your job. You may require physical therapy, rehabilitation or some other long-term medical treatment. You may be forced into early retirement.

Finally, there’s the opportunity cost. You may no longer be able to engage in athletic activities or other things that have given you joy or pleasure. You may have to pass up a job promotion or change because of the consequences of the malpractice.

Contact the Law Office of Michael J. Hood

At the law office of Michael J. Hood, in Wilmington, we bring more than 30 years of experience to personal injury victims in Delaware and Pennsylvania. For a free initial consultation, contact us online or call our office at 302-777-1000 for an appointment.

Examples of Strong Medical Malpractice Cases

Sitting doctorAs personal injury cases go, medical malpractice can be one of the most difficult to prove and to win. Often, expert witness testimony is critical to the success or failure of a med mal claim. What are some of the key components of the best medical malpractice claims?

Let’s start by identify what types of cases are not strong ones:

  • Cases where there may be injury, but there are no losses—You may be able to show that a medical professional acted carelessly or negligently, but you won’t have a claim unless you can show some loss. For example, a doctor may have prescribed the wrong medication, but if you did not suffer any physical, emotional or financial loss because of the mistake, there’s little to be gained by filing a lawsuit.
  • Cases where the medical professional did not abide by the commonly accepted standard, but there was no injury. A doctor may have negligently failed to conduct prenatal testing or monitoring, but if your child is born healthy, there is no malpractice.

Conversely, a strong medical malpractice case starts with a clear injury (stemming from the malpractice), as well as specifically identifiable losses. If you can show that a doctor operated on the wrong body part, that’s a clear demonstration of an injury. In addition, though, you need to show that you suffered loss as a result. If you were unable to return to work, or if you had to pay out of your pocket for medication or other procedures, you would likely have a strong case—clear liability and identifiable losses.

Contact the Law Office of Michael J. Hood

At the law office of Michael J. Hood, in Wilmington, we bring more than 30 years of experience to personal injury victims in Delaware and Pennsylvania. For a free initial consultation, contact us online or call our office at 302-777-1000 for an appointment.

The Types of Damages Available in a Personal Injury Claim

The Different Types of Damages You Can Pursue in a Personal Injury Case

Accident victim in gurneyWhen you have been hurt because of someone else’s carelessness or negligence, it can have an impact on every aspect of your life. Even if your injuries are not life-threatening or don’t seem that serious, they can limit your daily activities, leave you in constant pain, or force you to stop doing things you enjoy. It’s important to know the full range of damages you can seek in a personal injury lawsuit.

Compensatory Damages

The vast majority of damages in a personal injury action are designed to “compensate” you for a loss. Generally, though, compensatory damages fall into two categories: economic damages and non-economic damages.

Economic damages are those that represent a specific, easily quantifiable, loss. For example, any lost wages or income suffered because the injury prevents you from working would be an economic loss, as would all medical expenses incurred. You are entitled to compensation for any medical expenses already received, as well as any treatment subsequently required because of the accident. However, if medical expenses are paid by your insurance company, you won’t be able to personally recover those costs, as you did not incur them.

Other economic damages can include any property loss, or any other out-of-pocket expense incurred because of the accident

Non-economic damages are those losses that are more difficult to quantify, but nonetheless a result of the wrongful act. Non-economic damages include compensation for pain and suffering, for loss of companionship or consortium, for emotional distress, and for the loss of enjoyment of activities in which you can no longer participate.

Punitive Damages

A separate type of damages seeks to punish the wrongdoer or to act as a deterrent to others who might engage in similar conduct. As a general rule, these damages are referred to as punitive damages. Punitive damages are seldom awarded, and typically require that the defendant engaged in egregious, outrageous, or wantonly negligent behavior.

Contact the Law Office of Michael J. Hood

At the law office of Michael J. Hood, in Wilmington, we bring more than 30 years of experience to personal injury victims in Delaware. For a free initial consultation, contact us online or call our office at 302-777-1000 for an appointment.

The Standard of Care in a Medical Malpractice Claim

Close-up of gloved hands passing the surgical scissors

A Medical Professional’s Standard of Care with Respect to Patient Injury

As a general principle in personal injury claims based on negligence, an injured party must show:

  • The defendant breached an accepted duty to use a reasonable standard of care in whatever activity caused the injury—driving a car, building a house, manufacturing a product, providing a service.
  • The failure to use the accepted standard of care actually caused an injury
  • The injured party suffered a loss because of the accident

In general negligence actions, the standard of care is that of a reasonable person, typically defined as an average person of ordinary prudence. However, in claims involving allegations of medical negligence or malpractice, though, the standard of care is significantly different. Because of the risks associated with receiving inappropriate medical care, doctors and nurses are generally held to a higher standard of care than others.

In a medical malpractice claim, therefore, to determine whether a doctor or nurse acted properly, the jury must consider the following:

  • Was the care provided similar to that which would be given by a reasonably competent and skilled health professional (not an ordinary person), with a similar background (education and experience), in the same medical community (standards may vary from one medical community to the next).

In most lawsuits alleging medical negligence or malpractice, the accepted standard by which the medical professional will be judged is established through expert testimony. Frequently, both sides will offer witnesses who testify regarding the practices and procedures that are considered reasonable within the profession and the community. Certain states have enacted legislation requiring that anyone seeking damages for alleged medical negligence retain an expert in the same field and from the same community.

Contact the Law Office of Michael J. Hood

At the law office of Michael J. Hood, in Wilmington, we bring more than 30 years of experience to personal injury victims in Delaware. For a free initial consultation, contact us online or call our office at 302-777-1000 for an appointment.

Mass Transit Accidents – An Overview

City BusMany residents of the greater Wilmington areas rely on mass transit to get to and from work, social activities and to conduct most of the other business of their lives. For many, a primary consideration is the sense of enhanced safety—that they don’t have to incur the risks of taking an automobile on the busy roads in the area. Unfortunately, though, far too many people suffer needless injury on commuter trains, buses and other types of mass transit.

The Common Causes of Mass Transit Accidents

Far and away, most injuries suffered on buses, light rails, subways and commuter trains result from collisions with other objects, including automobiles, guardrails and bridge abutments. These collisions may cause passengers to be thrown to the floor, or even from the car or bus. The accidents are often the result of operator error or negligence, such as speeding, but may also stem from dangerous or defective vehicle components, from poorly maintained tracks or roadways, or from other negligence by owners or operators.

In the Wilmington-Philadelphia area, weather can often contribute to unsafe conditions on mass transit. Patrons can slip on icy or wet steps or floors, and bus operators may experience more difficulty controlling or stopping a vehicle.

The Responsibility of Mass Transit Operators

Buses, trains and light rails are generally referred to as “common carriers,” and have specific duties under law, including:

  • Reasonable care in hiring people who are qualified to operate the bus, train or other vehicle
  • Routine maintenance of vehicles, engines and other parts
  • Regular monitoring to determine any design flaws
  • Ensuring that access and exit points are safe, with appropriate lighting and free from obstructions
  • Providing security, if necessary, to ensure safety of passengers

Contact the Law Office of Michael J. Hood

At the law office of Michael J. Hood, in Wilmington, we bring more than 30 years of experience to personal injury victims in Delaware. For a free initial consultation, contact us online or call our office at 302-777-1000 for an appointment.

The Common Types of Surgical Errors

The Most Frequent Types of Surgical Mistakes

Doctors operatingUndergoing a surgical procedure can be a nerve-wracking process. It can be unsettling to know that a doctor will cut into your body, so you want to know that the professional you have chosen has the requisite skill, as well as the history for using appropriate caution to minimize the risk of side-effects or unanticipated consequences. Even though modern medicine can do some amazing things, there are still far too many situations where lack of standards or lack of attention result in surgical error. Here are the most common types of surgical errors:

  • Failure to use due care—In some situations, the surgeon can try to move too quickly, or without requisite concern for surrounding organs or potential injury to other parts of the body. For example, the surgeon may not take the time to verify where certain nerves are, or may nick a spleen or other vital organ out of simple carelessness.
  • Operating on the wrong body part—Most hospitals work extremely hard to ensure that the surgery is performed on the correct body part. Nurses or doctors may use bright colored tape to designate the correct limb or body part, or may put a big black X on the wrong limb. Nonetheless, too many patients still have surgical procedures on the wrong body part.
  • Cutting at the wrong spot—A surgeon may make an incision in the wrong place, complicating the procedure or even making it impossible to perform the surgery
  • Leaving a surgical tool or implement in a body cavity—The surgeon may have a sponge, scalpel or other item that needs to be used inside a patient’s body, and forget to take it out before the wound is sewn up.
  • Medications errors, including anesthesia mistakes—These can result from the failure to conduct a proper work-up, from the administration of too much or too little anesthesia, or from the use of the wrong medication
  • Operating on the wrong patient—This typically happens when patient charts get mixed up

Contact the Law Office of Michael J. Hood

At the law office of Michael J. Hood, in Wilmington, we bring more than 30 years of experience to personal injury victims in Delaware. For a free initial consultation, contact us online or call our office at (302) 777-1000 for an appointment.

Getting Workers’ Compensation Benefits for an Occupational Disease

Workers’ Compensation Claims Involving Job-Related Illness

Factory workerUnder the laws of Delaware, if you have been hurt on the job, you can pursue benefits under the states’ workers’ compensation programs. Work comp is designed to be a compromise for workers and employers. Workers are generally able to secure benefits in a more timely fashion, without the time and expense of a trial. Employers avoid the potential for unlimited personal injury judgments for a workplace injury.

Workers’ compensation benefits are available for more than injuries suffered on the job. Though any injury sustained in a traumatic accident will likely entitle the victim to some level of payment, workers may also seek compensation for repetitive stress or motion injury, mental or emotional distress caused by the work environment, and any illness or disease contracted because of the work environment.

The Common Types of Workplace Illnesses

A sick worker can generally obtain workers’ compensation benefits for any illness caused by some factor in the work environment. Some of the most frequent workplace illnesses that have allowed employees to recover workers’ compensation include:

  • Cancer caused by exposure to toxic or carcinogenic substances
  • Lung disease, including asthma and Mesothelioma stemming from working in dusty air or in a factory that creates or uses particulates, silicates or plastics
  • Skin disease from exposure to gases or other substances
  • Heart disease

Proving an Occupational Illness

Though workers have a right to seek workers’ compensation benefits for an occupational disease, the biggest challenge to obtaining an award can be proving that the disease was caused by your work environment. If others in your job or at your workplace have suffered the same illness, that can be important evidence to support your claim. In addition, your attorney may introduce expert testimony to show the causal relationship between your workplace and your disease.

Contact the Law Office of Michael J. Hood

At the law office of Michael J. Hood, in Wilmington, we bring more than 30 years of experience to personal injury victims in Delaware. For a free initial consultation, contact us online [link to Contact Us page] or call our office at (302) 777-1000 for an appointment.

Use of Health Insurance, Medicaid, or Medicare

If you are involved in any type of motor vehicle accident, you need to initially file any loss claims through your own auto insurance provider. But what if you are injured because of someone else’s carelessness or negligence, but it’s not in a motor vehicle accident. If you have Medicaid, Medicare or private or employer-sponsored health insurance, you should promptly go to your doctor or the hospital, if necessary, to get the treatment you need, and file a claim for any medical expenses through your health insurance provider.

It’s important to understand, though, that if you file a lawsuit for injuries received, if you recover financial compensation for medical expenses, any insurance benefits you received prior to the judgment or settlement in the lawsuit will have to be repaid, under a legal concept known as “subrogation.” Essentially, the insurance company has advanced you the money to pay for medical care, and is entitled to reimbursement, if you recover any amount in a lawsuit.

The rights of Medicare and Medicaid to recover funds paid to you are set forth in federal and state law. Both Medicare and Medicaid will almost always accept 1/3 less of what is owed, because your attorney is generally taking 1/3 of your recovery from the person, or business that caused your injury.

With private or employer-sponsored health insurance, there is typically a subrogation clause in your policy, entitling the insurance company to some level of reimbursement if you recover money pursuant to legal action. Some insurance companies will accept 1/3 less, and others will ask for full reimbursement of any amounts paid. It is up to your attorney to try to negotiate it as best as possible to get them paid.

From my perspective, the most important thing you need to do after an accident is get healthy. Money is going to come and go, but your health is something that you want to maintain as best as possible throughout your life. You do not go to the doctor to make money. You go to the doctor or doctors to get healthy.

You never want to stop going to a doctor because of fears about money, and end up with a problem that could have been resolved by going to the doctor, therapy, or whatever else the doctor prescribed for you to do.

Contact Our Office

To arrange a free initial consultation, contact us online or call our office at (302) 777-1000. Evening and weekend meetings can be arranged upon request. We will come to your home or the hospital, if necessary.

Dangerous or Defective Equipment on a Jobsite – Your Remedies

Seeking Compensation for Injuries Caused by Dangerous or Defective Equipment on a Jobsite

Cement truck at construction siteIn today’s world, many workers face daily risk of injury because of exposure to inherently dangerous machines and equipment, or because of the potential for breakdown of heavy machinery. Here are important things you need to know about a workplace injury involving a defective or poorly designed workplace machine, tool or product.

  • You can seek workers’ compensation benefits for any injuries sustained—Workers’ compensation is designed, in Delaware and Pennsylvania, to be your exclusive remedy for injuries caused by the negligence or wrongful acts of an employer or co-employee. Your employer has a duty to ensure that the equipment or machinery used on a jobsite does not pose an unreasonable risk of injury to you. This may include assessing the design or manufacture of a tool, machine or piece of equipment. If you can make any argument that your employer failed to use reasonable care in using or bringing in a tool, machine or piece of equipment, you can seek benefits through the state’s workers’ compensation program.
  • In many instances, you can also file a lawsuit against the manufacturer, designer or distributor of the machine, tool, product or piece of equipment—In most instances, the machines or tools you use at work are obtained from a source other than your employer. Because workers’ compensation benefits only cover losses for which your employer has responsibility, you can circumvent the workers’ compensation system for any injuries caused by the negligence or wrongful act of someone other than your employer or a co-employee. This is known as a “third party” action, because you are allowed to file a lawsuit against a “third party”—someone other than you or your employer.
  • While you cannot typically recover twice for the same injury, you can simultaneously seek damages from your employer in a workers’ compensation claim, and from others in a “third party claim.” The amount recovered from workers’ compensation will relieve your employer of any additional liability, and the amount received in a lawsuit must be specifically for losses caused by the third party.

Contact the Law Office of Michael J. Hood

At the law office of Michael J. Hood, in Wilmington, we bring more than 30 years of experience to personal injury victims in Delaware. For a free initial consultation, contact us online or call our office at (302) 777-1000 for an appointment.