Archive for the 'Personal Injury' Category

Veterans Affairs Faces Lawsuit From Veteran Over Scalpel Left in Body After Surgery

How much is a scalpel in the abdomen worth? Glenford Turner of Birdgeport is suing the Veterans Affairs Administration after a scalpel was discovered in his abdomen after a critical surgery for prostate cancer. Turner went into the VA hospital in West Haven, Connecticut in 2013 for surgery.

Over the next four years, he felt dizziness and severe pain where the scalpel was located. Turner finally went back to the VA in March of 2017 and an X-Ray showed there was a scalpel inside his body. Turner underwent another surgery in April to remove the tool. Doctors confirmed it was the same blade used in his previous surgery four years earlier.

In June of 2017, Turner filed a claim with the Department of Veterans Affairs under the Federal Torts Claims Act. Turner and the VA couldn’t settle Turner’s claim, so Turner’s attorney filed a medical malpractice lawsuit against the federal government after the New Year.

Turner’s Medical Malpractice Claim

The patient must prove the following to win a medical malpractice case:

  • Duty – The defendant must have a legal responsibility to the plaintiff
  • Breach – The defendant failed to carry out his or her responsibility in some manner
  • Causation – The defendant’s failure caused the plaintiff’s injury
  • Damages – The plaintiff was injured in such a way that the defendant should pay some kind of restitution to the plaintiff.

If Turner’s case relied solely on proving these elements, he would prevail, especially if there was a jury involved.

veteran affairsThe surgeon who operated on Turner had a doctor-patient relationship with Turner. Turner relied on the doctor’s expertise, skill, and care to ensure that he made it through the operation safely.  There is no doubt that the law would not only require the doctor liable for anything that happened while Turner was being operated on, but that the doctor also had a duty to exercise care and due diligence since Turner’s life was entirely in the surgeon’s hands while Turner was unconscious. The VA is vicariously liable for the surgeon’s mistakes since the VA was employing the surgeon for the operation.

Breach and causation are often harder to prove, but the nature of the accident all but confirms that there was some kind of malpractice. The doctors who removed the scalpel have confirmed that it was the same scalpel used to remove Turner’s prostate cancer. Even without that testimony though, Turner can rely on “Res Ipsa Loquitur.”

Res Ipsa Loquitur” is a legal doctrine that means “the thing speaks for itself.” Generally, judges and juries require evidence of breach and causation before they will believe a claim. However, there are some injuries that are clearly the result of negligence. In cases involving such self-evident injuries, the injured party does not need to prove breach or causation.

Turner has a very strong “res ipsa loquitur” case. Scalpels do not usually turn up in abdomens unless a surgeon left it inside after an operation. Even if Turner cannot name the specific surgeon or exactly when it was left behind, the scalpel inside him is obviously the result of malpractice.

Turner was very fortunate that the knife didn’t penetrate any internal organs. As it is, Turner suffered four years of pain and discomfort because of the scalpel that had been left inside. The VA owes Turner for those years of pain and suffering, as well as the cost of the x-rays, doctor visits, and the second operation to remove the blade.

Government Immunity

Although Turner would have a very high chance of prevailing if he were suing a private hospital, Turner’s case is trickier because the defendant is the United States government. Governments are typically immune to lawsuits, unless the legislature permits it. Fortunately, the Federal Torts Claims Act (FTCA) gives federal courts the power to hear cases involving torts between private citizens and the federal government if the plaintiff notifies the federal agency within two years of the injury.

The FTCA only gives the patient two years to file his or her lawsuit. There is a little grey area in Turner’s case, since the scalpel was left inside in 2013, more than two years ago. However, Turner would have no reason to suspect that his surgeon left the instrument inside him until he could get an x-ray. When Turner discovered the blade mid-2017, he immediately had it removed before the end of the summer. The statute of limitations should not start running until Turner realized he had been injured by his doctor’s malpractice.

The second barrier behind the FTCA is that only certain federal employees can be sued under it. If the doctor who operated on Turner was an independent contractor, then Turner would have to bring his case in state court against the hospital and the doctor. This is only desirable if Connecticut would pay out more money for malpractice. Turner is lucky since Connecticut does not impose any damage caps.

However, Connecticut does not enforce vicarious liability between the hospital and the physician. This means that just because the hospital employs the negligent doctor, does not mean that the hospital is responsible. The only pool of money that Turner could access in Connecticut courts would be the doctors who were careless. Although the doctor might be wealthy, it is a far smaller claim than successfully suing the federal government.

Swatting: Murder by Prank Call is Still Murder

The law is clear that if a defendant hires a hit man to kill a victim, that defendant would also be guilty of murder. If a defendant prank calls the police instead, the legal outcome should be the same for the defendant.

“Swatting” is an internet prank where the prankster calls in a false crime to lure a large number of police officers to a house. The prank usually involves a false call about a murder or hostage situation. Tyler Barriss was playing a game of Call of Duty on December 30 when he got into an argument with another gamer. Another player suggested to Barriss that he “swat” the offending gamer.

Barriss called police in Wichita, Kansas and reported a domestic shooting and hostage situation. According to police, Barriss falsely claimed that he had accidentally shot his father and threatened to set the house on fire. Wichita police descended on Andrew Finch’s home, the address that Barriss had given the police department. When police surrounded the house, Andrew Finch went outside to find out what the commotion was about. Police yelled at him to put his hands up. One officer fired when he believed Finch was reaching for his waistband.

Police officers searched the house and found Finch’s mother, niece, and two young children, but no hostages, injured persons or weapons. Andrew Finch died at the hospital. He was unarmed. Finch was not the other gamer involved in the internet game with Barriss.

swattingLos Angeles police arrested Tyler Barriss on January 3rd on a felony false police report. Kansas is expected to pick Barriss up from the Los Angeles County jail by mid-February. Barriss has a history of prank calling or threatening to make such calls. Barriss had previously made a call regarding a bomb threat to a television station and joked about “swatting” FBI headquarters on Twitter.

Is Barriss Liable for Murder?

Murder requires at least two elements: the defendant must intend to kill the victim and must take action to kill the victim. If the defendant is unsuccessful in his attempt to kill the other person, the defendant is guilty of attempted murder instead.

Barriss’s prank call is akin to hiring a hit man to kill another person. Instead of hiring someone to do the killing, Barriss acted through an unwitting police department. Barriss deliberately acted with malice aforethought – he made the call with the specific intention of escalating tensions between police officers and a random person. Barriss had been warned by authorities before not to make such prank calls, but Barriss continued. The result is that an innocent person was murdered and two young girls must live without their father.

Barriss might argue that he didn’t intend to get anyone killed. It was a just a prank that got out of control. However, his actions still count as felony murder. In a felony murder case, a person convicted of a felony is liable for any murder that occurred during the felony. For example, a robber might only attend to steal money from a bank, but if anyone dies during the robbery, the robber would liable for the victim’s death. Since knowingly making a false police report is a felony and a person died during the felony, Barriss would be potentially guilty of felony murder.

Of course, Barriss is not the only cause of Finch’s death. People are beginning to question why police are always trigger happy. If the office hadn’t open fire, Finch would still be alive today. However, just because Barriss wasn’t the direct cause of Finch’s murder, doesn’t mean he’s off the hook. If a defendant is a proximate cause of a victim’s death during a crime, that’s enough to trigger felony murder. As long as it was reasonably foreseeable that a person might be killed during the crime, the defendant would be liable as a cause of the murder. Barriss cannot escape his culpability by blaming anyone else but himself.

Is Barriss Liable for Wrongful Death?

As mentioned, Andrew Finch leaves behind two young girls, ages 2 and 7. The girls will need money to support them as they grow up, now that they have been deprived of their father. One of the features of the American legal system is that a person can be charged with a crime in the criminal system and sued for wrongful death in civil court.

To win a wrongful death lawsuit, the plaintiff needs to prove that the defendant caused the victim’s death by acting intentionally or recklessly. If Kansas state prosecutors can convict Barriss of felony murder, it would greatly help prove the wrongful death case against Barriss. Barriss intentionally made the call or that he acted in reckless disregard of the consequences. Barriss was warned multiple times that his prank calls were tying up police resources when they could be used on serious matters – matters of life and death. He clearly doesn’t care how his “swatting” affected others, even if it put them at risk.

The biggest issue with a wrongful death suit against Barriss is that he doesn’t have a lot of money. Tyler Barriss is a twenty-five year old gamer living in his parent’s basement. He’s facing potential prison time for felony murder.

Even if Barriss lost a wrongful death suit, he doesn’t have the money to pay Finch’s family. The sad truth is, many people can be liable for terrible acts, but will not compensate the victims because they are unable to pay them. Finch’s estate will likely have to pursue other avenues for compensation. The City of Wichita and the Police Department would also be liable in this instance. The Kansas Victim Compensation or Kansas Victim Services could also provide relief.

How Much Trouble Is Amtrak In?

Amtrak Cascades Train 501 crashed at DuPont, Washington State, on December 18, 2017. This was the first run on the Point Defiance Bypass, a new rail route close to Tacoma, Washington. The new bypass route was intended to shorten travel time by separating passenger and freight traffic. Instead, the derailment resulted in several hours delay, as well as three fatalities and a hundred injuries.

The public transit derailed as it approached a bridge near Interstate 5. The lead cars crushed a number of automobiles as it hit the freeway. The data recorder onboard showed that the train was traveling 78 miles per hour when the accident occurred, almost 50 miles faster than the posted 30 mile speed limit. Witness reports also claim that engineers had voiced concern that the train was going too fast and that they should hit the brakes. Six seconds later, the train jumped the tracks and entered the Interstate Highway.

Conductors and engineers usually train on the new route to familiarize themselves with its landmarks and speed limits. Although Amtrak had conducted some of those exercises on the new Point Defiance Bypass route, a number of Amtrak workers had expressed concern about the sufficiency of the drills prior to the accident. The training exercises had reportedly been quite flawed: engineers were largely kept in a single car in the back during the training, some of the trial runs were conducted after midnight when visibility was low, and that supervisors were unavailable or unwilling to answer questions about safety concerns. Amtrak claims that its training exceeds federal standards, but would not comment further until state and federal investigations were concluded.

amtrakWhat Kind of Legal Claims Could Amtrak Face?

In an accident of this magnitude, with three fatalities and a hundred injuries, Amtrak would face significant lawsuits regarding their conduct and the conduct of their employees. Six victims of the crash have already retained a law firm to represent them:

Amtrak’s Negligence and Its Responsibility to Passengers

Although the investigation is ongoing, the initial reports indicate that its employees and supervisors were negligent in some capacity. As owners and couriers, Amtrak owes a duty to its passengers to keep them safe. Going 50 miles over the speed limit and conducting training sessions that were inadequate is a clear breach of that duty.

Amtrak might argue that its familiarize exercises were well over those mandated by federal law, but going that far over the speed limit is a clear indication that someone had failed at their job. A reasonable person could foresee that going 50 miles over the speed limit when making a turn onto a bridge would result in an accident. But for that violation of the law, those three passengers would still be alive, and everyone injured onboard the train would be fine.

Amtrak’s Negligence and Its Responsibility to Highway Drivers

The drivers who were injured on the highway would also have standing to sue Amtrak and its employees. The biggest difference is that Amtrak does not have a special duty to those drivers. The passengers are Amtrak’s guests and the passengers pay Amtrak to transport them safely to their destination. Amtrak has no such special responsibility to those on the freeway.

On the other hand, Amtrak does owe a general duty to the public. As a public service and as an operator of dangerous machinery (a train fell on the freeway!!), Amtrak has a responsibility to the public in general to operate carefully. If a truck carrying gasoline ran off a bridge and fell onto the cars below, the truck company would be liable for any damage the truck caused. There’s no reason that Amtrak should not have the same duty to the public at large.

Is There a Damage Cap?

However, even if the victims prevailed at trial, their damages and recovery would be limited to $295 million. The 1997 Amtrak Recovery and Reform Act originally limited damages to $200 million. The cap was raised in 2015 to its current amount. The damage cap will lead to a race to the courthouse to ensure that a victim can get his or her share.

The latest crash at the end of this year will likely renew debates on whether damage caps are necessary. Amtrak is partially funded by state and federal governments, but operates as a for-profit corporation. State actors are often shielded from liability so that the state can operate without political harassment. Private corporations have no such shield though. Giving certain companies such protections is a type of crony capitalism that politicians on both sides of the aisle have railed against.

In cases like this, such damage caps are devastating. $295 million cannot make up for three wrongful deaths and hundreds of injuries. This doesn’t even count the money required to remove the train from the highway and the property damage done to all the automobiles below. The 1997 Amtrak Recovery and Reform Act might be useful to stop certain frivolous lawsuits such as hot coffee spills. In train derailments like this though, such damage caps are an injustice to the victims both on the train and on the freeway.

Looking for the Helpers: Understanding the Good Samaritan Law

Our news cycle has been filled with tragedies. Fires have been sweeping through California, hurricanes destroyed many homes in the U.S., and shocking instances of shootings have cropped up in many states. And yet, it is in these tragic moments that instances of tremendous courage and acts of heroism shine through. There are stories of firefighters working tirelessly to put out the raging fires of Northern California. There are stories of volunteers who braved the post-earthquake conditions of Florida, Texas and Puerto Rico to help the displaced and affected. There are stories of strangers picking up people off the ground and taking them to the hospital during the Las Vegas shooting.

Sometimes, however, in these efforts to help, the rescuee ends up getting hurt by the rescuer. It is an unfortunate occurrence, but not uncommon.

In fact, you’ve probably heard of the story of someone tried to help a guy who was choking by doing the Heimlich maneuver on him. Then the next thing he knows, he’s being sued by the person he helped. These types of stories float around like urban legends, but then may cause you to hesitate before helping someone out. And then, when these types of stories get widespread newspaper coverage, they may have the adverse effect of discouraging people from helping others in emergency situations.

good samaritan lawThankfully, legislators across the country recognize this as a problem and have enacted what are known as “Good Samaritan laws.” Good Samaritan laws can be used as a defense for rescuers who might have hurt another in their efforts to help. There are, of course, limitations. These limitations and the terms of the Good Samaritan law differ in every state. Consequently, in order to determine who is protected by these laws, in what circumstances, for what types of injuries, etc., it is important to note what state you are in.

Good Samaritan Laws Differ by State

All states have some form of a Good Samaritan law, but who and what it covers may vary in range depending on the laws of that particular state. Generally, most states’ Good Samaritan laws do not protect rescuers in situations where the rescuer acted in a negligent or reckless manner that resulted in harm to the rescuee. If the rescuer gave help according to a reasonable standard of care, the rescuer may be protected. However, the scope of the reasonable standard of care depends on whether the rescuer was a medical professional or otherwise certified to provide medical aid. The following include some criteria that may differ between states:

Type of Rescuer

  • Whether the rescuer was a member of medical personnel, emergency personnel or law enforcement at the time of the rescue;
    • Some states make a distinction between on-duty and off-duty personnel.
  • Whether the rescuer was certified to provide the type of care the rescuer provided; and/or
  • Whether the rescuer received compensation for the rescue.

Standard of Care

  • Whether the care was given in good faith;
  • Whether the care given was according to a reasonable standard of care; and/or
  • Whether the rescuer was negligent in the exercise of their care.

Types of Care Given

  • Whether first aid was given;
  • Whether a search and rescue effort was conducted by the rescuer;
  • Whether an AED (a.k.a. defibrillator) was used by the rescuer on the rescuee; or
  • Any other type of treatment/care given at the time of the rescue.

Please note that this is not an exhaustive list and further criteria may be required or observed by different states. Moreover, some of these criteria may not be required by the state that you are in.

What About the Duty to Rescue?

Another thing to note is that Good Samaritan laws are NOT the same thing as Duty to Rescue laws. Good Samaritan laws protect rescuers from being sued by the people they were trying to rescue. Duty to Rescue laws require people to call authorities or provide reasonable aid for strangers in peril. Moreover, only a handful of states have Duty to Rescue laws.

In short, in order to know what protections you have when rescuing another person, check the Good Samaritan law in your state. You never know when you will be called to be the next hero.

Narcos: Pablo Escobar’s Brother Threatening to Sue Netflix for $1B

The brother of infamous drug kingpin Pablo Escobar–the 71-year-old Roberto de Jesus Escobar–has been in an ongoing legal battle with Netflix for almost a year now. Roberto Escobar took issue with Netflix’s semi-biographical show about his brother’s operations Narcos and claimed unspecified intellectual property violations to the tune of an incredible $1B. What’s more, Mr. Escobar demanded that Netflix allow him to review all future episodes of Narcos for accuracy and give a yes or no on the episode. Since the initial demands, Mr. Escobar’s claims have been refined a bit to mostly cover copyright and trademark issues.

This dispute has been catapulted back into the public eye in the last few weeks for two reasons. First, the lawyers for Narcos Productions, LLC–part of Netflix in charge of the show–have challenged a number of trademarks filed by Mr. Escobar on both “Narcos” and “Cartel Wars.” These challenges aren’t particularly surprising given the success of the show and the spin-off mobile game “Cartel Wars;” as well as how weak Mr. Escobar’s claims are. Second, the murder of a location scout for Narcos while in Mexico a few weeks back.

Escobar has been extremely critical of the Narcos show, saying that the show is apparently riddled with inaccuracies and lies. He expressed extreme anger over the show, saying “They are playing me without paying. I am not a monkey in a circus, I don’t work for pennies.” Since the murder of the Narco’s location scout Carlos Portal, Escobar has been coy about the topic. He described filming without authorization of Escobar, Inc. as “very dangerous…especially without our blessing. This is my country.” He has also said that he will “close their little show” if Netflix does not pay him the money he asked for. However, despite these veiled threats, when Escobar’s attorneys were asked about the situation they only said that they had no comment except “Escobar Inc. cooperates with all law enforcement.”

While Escobar’s approach to the situation might be a bit intimidating, it has not cause lawyers for Narcos Productions, LLC to back down much at all. After his initial $1B demands, Escobar went out and applied for trademarks on “Narcos” and “Cartel Wars” on a laundry list of goods and services. Downloadable ringtones, sunglasses, temporary tattoos, sheet music, sunglasses, yoyos, websites, video games (online and offline), board games, Christmas tree ornaments, snow globes, protective pads for skateboarding, basically everything under the sun. This list just scratches the surface of the immense list of uses Escobar claims to have made on the phrases “Narcos” and “Cartel Wars” prior to the show coming out. Netflix has responded in a letter and they are not impressed.

narcosA few months back, Netflix sent a letter to Escobar demanding that he cease use of and abandon his trademark applications for “Narcos” and “Cartel Wars.” This letter has been more recently accompanied by filing an objection to Escobar’s trademark applications a few weeks back, part of an official process of opposing trademark applications going through the U.S. Patent and Trademark Office. While the opposition is not currently readily available to read, one must imagine that it mirrors at least some of the objections they raised in their original letter to Escobar–primarily fraud. With so many goods and services claimed Netflix argues that many of them are simply untrue, fabrications by Escobar. For example, Escobar claims that he first began operating Narcos websites and offering online game services on January 31st of 1986–before the internet was readily available for consumer use and long before online gaming existed in any shape or form. The letter also points out that the specimen used in Escobar’s registration (a word used for the example of the mark provided with a trademark application) is nearly identical to the logo Netflix uses for its show–so much so as to imply copying.

Escobar himself seems to believe that he will still come out on top in his fight with Netflix. His attorneys have indicated that Netflix may be able to reach some settlement and Escobar himself has said that this means that they accept that he rightfully owns the trademarks he has filed for. This is simply not the case, settlements can come for any number of reasons, including simply avoiding the costs of challenging Escobar’s marks. This is especially true because almost no case in law is a guaranteed slam dunk victory. Let’s take a look at how copyright and trademark law would apply to Mr. Escobar’s claims and see just what kind of case he is likely to have against Netflix

Understanding Escobar’s Copyright and Trademark Cases

To start with, let’s look at the copyright claims here because they are by far the weaker of two weak cases. In order to be valid, a would-be copyright must be original and fixed in a tangible medium.  Originality is fairly low standard, requiring only minimum creativity.  For example, a creative arrangement of phone numbers in a telephone book would be enough to qualify. Fixation only requires you to store your work in a medium that can be perceived, reproduced, or otherwise communicated.

Today, copyright protection attaches as soon as you place an original work in a fixed medium—allowing you to stop people from using your work without permission and sue them for actual lost profits based on their actions. Registration provides you with a presumption of validity for your copyright and the ability to sue for statutory damages—which nearly always exceed your actual loss.  However, there is no copyright available for facts. This is for the obvious reason that it would be an absolute mess if one party could own the rights to publish the truth.

With this in mind, Escobar has very nearly no claim for copyright. Not only has he presented absolutely no work which Narcos might have infringed. Narcos is ostensibly a biopic based on the factual life of Pablo Escobar.

Escobar’s trademark claims have slightly more potential. Trademark law is designed to protect the public from confusion as to the source of a good by providing a protected indicator of the source of a good. While trademarking the name of a show with only a few seasons based only on the show is often not available, you better believe merchandise and paraphernalia can be protected by trademark. Generally, trademark protection is gained through registration. However, if somebody used a mark in commerce before you registered your mark, they’ll still have superior rights to yours in the geographic locations they can prove they used their mark prior to you. This will also be limited to the types of goods and services they actually used in commerce prior to your registration. Damages in a trademark infringement case can include profits attributable to infringement (in particularly bad cases of infringement), actual loss of sales or goodwill due to the infringement, and the reasonable rate for a license to the plaintiffs trademark (calculated via the value of the mark when infringement began and presuming both parties agreed the defendant was infringing). These damages can be tripled in cases of willful infringement-situations where the infringer knew of the mark and still violated it.

It’s unlikely Escobar has really used the phrase in all the ways he says he has. However, if he has used them and can establish that use he will have some rights as a prior user–rights he could assert against Netflix.

What are Escobar’s Chances?

Is Escobar going to get a billion dollars from Netflix? No, he’s not, that’s silly. Frankly the number seems pulled from the air and has essentially no basis besides being a nice round number. However, a settlement is far from out of the question. It’s very common for companies to cheaply settle a lawsuit that has even a small chance of success instead of dealing with the risk and expense of pursuing the suit to its completion. However, it might be a little early to expect a settlement at this point.

While Escobar’s trademark applications are still live for now, Netflix is still in the process of an initial challenge to the marks. The opposition itself is quite recent and is unlikely to be resolved for a month or two at the least and a year or more at the most. Until this gets resolved, it seems unlikely there will be a settlement unless it is quite favorable to Netflix. Any copyright claim from Escobar is essentially D.O.A. and even his trademark applications, while not completely without potential, seem riddled with issues that would prevent his registration.

While it hasn’t been brought up by either side, if brought in the right place a right of publicity claim may have some traction for Mr. Escobar if brought on behalf of his brother’s estate. Right of publicity is the right to your own name and image. However, it would have to be the right place because almost everywhere except for California offers no right of publicity after death.

No matter the cause of action, Escobar’s claims here are very thin despite his threats and bravado. While Netflix may yet settle, it won’t be because Escobar has a strong chance of winning any lawsuit against them.