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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.

Your Ability to Get PIP Payments for Lost Wages, and Short Term Disability

Arm injuryIn Delaware and Pennsylvania, you can purchase PIP (personal injury protection) coverage through your automobile policy. If you are injured in a motor vehicle accident, you can recover for lost wages under your PIP policy. But what if you already have short term disability coverage from your employer? Can you recover from both sources at the same time? The answer—sometimes yes and sometimes no. In certain situations, you are eligible to receive lost wage benefits through your insurance company under the PIP coverage on your auto policy, and simultaneously receive short term disability through an employer-sponsored plan. But there are some restrictions.

In Delaware, if you pay any part of the premium for your short term disability insurance, you are eligible to receive both PIP and short term disability payments. If, however, the short term disability is fully funded or paid for by your employer, any recovery under a PIP policy will prevent you from recovering under the short term disability policy. However, if the short term disability only pays 40% of your wages, you can go after your own insurance company for an additional 40%. PIP pays 80% of your gross pay. It is considered to be net of taxes.

Don’t be surprised if your employer or the disability insurance company delay or try to deny your claim. This is fairly typical with any insurance company, in any situation. Often, they will examine your medical records or require you to visit a doctor of their choosing, and will contend that you are not hurt enough to be out of work. If that happens, you need go to your doctor and request that your doctor write a strong letter reflecting why you should not be working.

It’s also important to remember that, if you file suit for damages after a motor vehicle accident, any money you receive will be offset by the amount you received in disability payments. This is pursuant to a “subrogation” right that the disability insurer has, which essentially says that they have a right to reimbursement of any benefits they paid you if you recover compensation through legal action.

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.

The Common Types of Construction Site Accidents

Construction workersConstruction sites are commonly considered to be among the most dangerous places in the world to work. Even when you take the highest level of personal precaution, paying close attention to your actions and the actions of those with whom you are working, a mishap can occur in an instant. Here are the most frequent types of accidents causing injury on a construction site:

  • Falls from heights—Even with a single story home, you can be at risk of fall from a ladder or roof. On high-rise construction sites, you may fall from scaffolding or a ladder, but there are also risks associated with construction elevators, with higher levels that don’t have proper guardrails, and with buckets or cranes.
  • Falling objects—There are many potential falling objects on a construction site, from cranes, ladders and scaffolding to tools or machinery, from jobsite materials to trash or debris.
  • Dangerous or defective machinery, equipment or tools—The power and pneumatic tools used on most construction sites can be highly dangerous if poorly designed, improperly manufactured or maintained, or incorrectly used.
  • Negligence in hiring, training and supervising—Contractors and owners often take short cuts in hiring in order to put more labor into a jobsite. Workers may not have the necessary experience to operate a complex power tool or piece of heavy machinery. Some workers with minimal training may not get the additional training they need to safely operate a machine. Furthermore, contractors and subcontractors may simply delegate tasks without ensuring that those performing them have the requisite skill or experience.
  • Job-related motor vehicle accidents—With regular deliveries and the removal of waste, trash or earth, there can be a lot of traffic on a construction site. In addition, workers may be required to drive distances to obtain materials or perform other tasks.

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.

Insurance Benefits—Available for a Personal Injury?

Hurt in An Accident? Can You Get Insurance Coverage?

Distressed manWhen you have been injured in any kind of an accident, you will naturally look to the at-fault party to compensate you for your losses. If the losses are significant, or if the at-fault party (like many) does not have the resources to cover your losses, you’ll want to see if there is insurance that will provide coverage for your injuries. Depending on the type of accident, you’ll want to look at different policies to determine if you are eligible for benefits.

Most claims for insurance benefits after a personal injury stem from motor vehicle accidents, and are filed under an automobile insurance policy. The process for recovering insurance benefits varies, based on whether you are filing a no-fault claim or a third-party claim. Under no-fault laws, you must seek compensation for your losses from your own insurance provider. Your insurer may then seek reimbursement of payments under a legal process known as subrogation. Typically, no-fault rules only apply to injuries that are not serious.

It’s customary, when you have suffered physical injury, to seek medical attention and file a claim for benefits with your own health insurance provider. For example, if you are injured in a slip and fall accident on someone else’s property, you can go to the hospital, an urgent care facility or your doctor and have the costs initially covered under your own health insurance policy. Your insurer will typically then pursue reimbursement from the at-fault party or their insurance company. Reimbursement may be sought under auto, homeowners’, malpractice or comprehensive general liability policies.

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.

The Need to Call Your Own Insurance Company Immediately After a Motor Vehicle Collision

Calling insurance agentWhen you purchase auto insurance, make certain that you have what is known as PIP, or personal injury protection. PIP is typically no-fault, so it will provide coverage regardless of who is at fault in the accident. PIP will cover medical expenses and/or lost wages for a specific period of time after the accident. In Delaware, PIP generally runs for two years from the date of the collision, but in Pennsylvania, it can be two years from the date of your last treatment.

It’s important to understand, though that you need to contact your insurance company immediately and notify them of your accident. They will send you the forms that you need to complete to get reimbursement or payment for medical bills paid, as well as lost wages.

There are often delays in obtaining reimbursement of lost wages, as the insurance company must send the form to your employer, and can’t reimburse you until the forms are returned by the employer. Unfortunately, employers are frequently slow in providing the required information, for a variety of reasons. To expedite your claim, you should continue to follow up with your employer to make sure wage information is provided to the insurance company. Though the insurance company may also contact your employer to move the process along, it’s in your best interests to initiate your claim as soon as possible, and to regularly communicate with your employer about the need to provide the information. You can often encounter delays and stalling strategies, but,with an attorney’s help, you can get your wages as quickly as possible.

If there are any unpaid bills arising out of the collision, and you are not yet represented an attorney, forward those bills to your insurance company immediately. If you don’t, you may run the risk that the service provider will report you as delinquent, which will have a detrimental impact on your credit score.

If you have an attorney, give any bills related to the accident to your lawyer as soon as possible. Your attorney will immediately forward those bills to the insurance adjustor handling your PIP/no-fault claim. If you continue to receive the same bills, keep giving them to your lawyer. Many times things fall through the cracks and a good attorney will follow up with the adjustor to get the bills paid.

It may seem strange that your own insurance picks up the medical bills and/or lost wages. But that is how it works in both Delaware and Pennsylvania, and it’s a good law. Without PIP/no fault, you would have to wait for the other party’s insurance company to pay for your medical bills and/or lost wages, and you could wait a long time.

Contact Us

For 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.