Posts made in May 2016

The legal system will award more money to an injured pro athlete than an injured homeless person, why is that?

Why can pro athletes sue for more than an average Joe?

A warning: This post isn’t about what is fair in a cosmic justice sense. Instead it’s about the reality of the legal system and the logic behind it. Our firm doesn’t make the rules, it just plays by them.

Lawsuits are not a fun pay day for people who have suffered at the hands of others, or a chance for people to become rich by seizing the assets of someone else. Instead, litigation is about making someone “whole” again after someone else’s actions have harmed them.

Imagine this, two people are waiting in line at an outdoor coffee business. A third party loses control of his car and strikes them both. Both people in line are severely injured and now have to use wheelchairs the rest of their lives. Both file lawsuits against the driver.

Let’s imagine the two victims are the same age and suffer identical injuries that prevent them from working. Both have spouses and two kids. The only difference is one of them earns $50,000 a year and the other is a professional basketball player and earns several million annually.

In normal circumstances, the basketball player will receive  much higher compensation. It’s not because they are more deserving or renowned. It’s not because society values them more. It’s because both victims are being compensated on wages they will never earn because of the injury.

The lifetime earning potential of the pro athlete is much higher than that of the average person, and personal injury lawsuits factor in the lost wages that person will miss out on. As a result, the pro athlete is likely to receive a higher settlement.

That’s the legal system as we have it, and that’s the reality we have to navigate when we litigate. While money can never truly make a person whole again, it can help them make their mortgage payments and provide for their family.

No lawsuit can happen without these three components, no matter how terrible the conduct of the people involved.

No matter how outrageous a defendant’s conduct may be, there’s one thing you can never sue for:

Picture this: A person is walking down the sidewalk, enjoying a warm Spring day, when out of nowhere a drunk driver hops the curb and strikes them over from behind. The pedestrian flies through the air, lands on his feet and finds himself to be completely unharmed. A miracle occurred, as most people would have been permanently injured or killed.

On what grounds can that pedestrian, unharmed only by a stroke of luck, sue that driver, who clearly acted negligently and was at fault for what happened.

The answer is, none. There is no chance of a lawsuit here. The pedestrian does not have a case.

Why? Because you can’t sue for what could have happened, only what did happen. In this case, no one was injured.

Lawsuits aren’t some kind of bad luck lottery ticket, where people profit off of their own misfortune. No, personal injury lawsuits are about compensating people for their suffering and to help them adjust to life-changing events.

The three elements of a lawsuit

A lawsuit requires liability, causation, and damages. In this example, the driver was liable for what happened as he got behind the wheel of a car while intoxicated, which is a clear case of negligent behavior. He is also the one who caused the pedestrian to be struck, it wasn’t a faulty steering wheel or other mechanical problem. Both of those elements are required for a case, but so is damages. In this example, there were no damages as no one was injured.

Sometimes people say things like “I could have been killed.” They rightly find themselves shocked by how terribly things could have gone because of someone else’s bad behavior. Those issues shouldn’t be ignored. There may be some kind of legal consequence that will fall on the person who caused that problem. However, a lawsuit is not the solution for things that could have happened but didn’t.

We have strong ties to expert witnesses, skilled professionals who have solid backgrounds

Will an expert say whatever we want on the witness stand?

There are a lot of cynics out there that think expert witnesses are often shady character who will lend their credibility to any lawyer if there’s a buck in it for them. Picture someone like Dr. Nick Riveria on The Simpsons who blatantly lies and exaggerates whenever he testifies.

While that may make great television, it’s not reality. In the real world, judges and juries care about the credentials of expert witnesses – they have to be actual experts, and real experts care about their professional reputations.

What happens on a witness stand is part of the public record and typically goes on the expert’s Curriculum Vitae, or CV.

Our firm has been working with expert witnesses for decades and a lot of that cooperation is only possible because of the relationships we’ve established with well-qualified experts. They have day jobs as professors, engineers, doctors, etc. Their careers would suffer if the testimony they provided was flawed.

When we hire an expert witness there is usually a substantial cost, but we’re not paying for them to compromise their integrity. We need their integrity to be rock-solid for this case and any future cases we may bring them into. We don’t want malleable experts, we want skilled ones with excellent reputations because they help us win cases. And if we’re reaching out to hire an expert, we believe in our case and know that they will agree that our client has a viable matter.

These are the three elements of a personal injury lawsuit

If you don’t have these three things, you don’t have a case

Personal injury litigation is a complex subject and we never expect clients to come in knowing what all of their rights are. We’re always ready to listen to someone about their experience and let them know if they have a case or not.

Every case needs to have the following chain of three things: Liability, causation and damages. If it misses one, a lawsuit is not possible. For an example, imagine a person became violently ill after eating food at an expensive vacation resort.

The three elements of a personal injury case

Liability is the first step. Did the the defendant, or defendants, act carelessly that allowed the accident to occur. For this example, did the resort staff serve undercooked or spoiled food? Can we prove that they did?

If we can prove liability, we move on to the next step: Causation. Did the negligent behavior from the defendant cause the accident or injury? It’s not enough that the plaintiff was staying at the resort and ate the food, can we show that it was the resort’s food that made them sick, and not something else? If not, the lawsuit won’t happen.

Once we have causality established, we then have to show that the plaintiff suffered real damages. Did the victim require expensive medical treatment, miss work, or suffer excruciating pain? Did the foodborne illness cause a permanent injury or disfigurement?

It’s not enough to say the patient was in danger, they must have had real damages to be compensated through the lawsuit. You can’t sue for what could have happened, it needs to have caused them to directly suffer harm.. Without liability, causation and damages, no personal injury case can proceed.

‘Reckless’ chase by local police at core of $2.5M case

The following was originally published in the Dec. 2, 2007 issue of Rhode Island Lawyers Weekly. It has been reprinted with permission.

On the night of Feb. 19, 2004, the driver of a gold Ford Taurus was identied by a Providence police officer as a member of a local gang. A chase ensued but was quickly terminated by the police when it became apparent that the driver was determined not to stop.

The motorist crossed into Cranston where a police officer in that community began pursuing the Taurus. The chase escalated to the point that four police cruisers were traveling behind the suspect, who was observed driving south on Route 9S at a high rate of speed and with his headlights off. At one point, he was seen making a quick U-turn and then driving the wrong way into oncoming traffic; three of the pursuing police officers reportedly did likewise.

The suspect proceeded onto Route 10, again traveling the wrong way and still trailed by several police cruisers, and drove his car headlong into a vehicle being driven by Natasha Valley, a Cranston resident and mother of three who was returning home from training to become an emergency medical technician. Last month, a settlement was reached in which Valley, 29, now a paraplegic, is to receive $2.5 million. Lawyers Weekly reporter Barbara Rabinovitz spoke last week with Milton, Mass., attorney Dino M. Colucci about how he achieved that result for his client.

Q.You say that the central question in the case was whether your client could prove that the defendants – the city of Cranston and the individual police officers involved – were reckless, not merely negligent. Given the dramatic testimony that was taken in deposition, was this a challenge for you or a slam dunk?

A. It wasn’t by any stretch a slam dunk. In fact, before we took the case, several law rms had turned her away because they didn’t believe such a suit could be successfully maintained. In honesty, we took the case on faith in the hope that we could make something good come out of such a tragic set of circumstances …. Fourteen depositions were taken; we obtained broadcasts of the police communications that night as well as their [police-chase l training policy. e suspect that they were chasing was eventually apprehended, and we went to jail to try to interview him. We were actually able to meet with him for 15 minutes in a holding cell to get whatever information he was willing to impart to us.

Q. Rhode Island has a $100,000 cap on recoveries for police negligence. Would that have applied in this case? What would have been your strategy for getting around it?

A. It was an open question as to whether or not the cap would apply once all the evidence was presented at trial. The burden would have been entirely ours to prove – that the conduct of the Cranston Police Department rose to a sufficient level of recklessness – in order to avoid the cap …. The city [of Cranston] continues to maintain that they did nothing wrong; they’re not accepting liability in any sense.

Q. You say that this may be the first case to apply the law established in the May 2005 case of Seide v. The State of Rhode Island, which permits citizens to bring actions against a police department for violations of a police-chase policy. Could you have achieved the same result without the Seide decision?

A. It was fortuitous for us that that case was decided by the Supreme Court of Rhode Island about six months after we took Natasha Valley’s case [in December 2004]. We took it in hopes that we could set a precedent given the facts in our case. is may be the first application of that decision … that the lower court’s decision to dismiss the case was incorrect.

Q. You’ve said that several law rms had declined to represent your client, in the belief that such a claim could not be successfully maintained. Why did you take the case in the end?

A. First and foremost, we felt great empathy for this woman. She was a young woman with three kids and, through no fault of her own, she found herself a paraplegic. Secondly, she’s a very inspiring woman. While most people would sit around and feel self-pity about their situation, she was so optimistic about her future and the life that she wanted for her kids that it was inspiring for us. So, we couldn’t walk away.

Q. What has this case accomplished with regard to police chases?

A. It won’t set a precedent because we mediated the case and reached a settlement, so nothing’s been adjudicated …. In my experience, every case really needs to be examined on its own merits. The police have a very difficult job, and we’re sensitive to that. Very often they find themselves in the midst of chaos, and they have to make immediate judgments on what to do. But Cranston had a [vehicle-chase] policy that was formulated years before this accident, and it was our position that this policy served as a foundation, or a guideline, so that officers can apply the logic contained in the policy when they’re out amidst the chaos. And we don’t believe that was done here.

Q. You gathered quite a bit of evidence for the mediation – an interactive audio- visual program, which synthesized an animated map of the chase route, broadcasts from the police, photos of the collision and so forth. Do you think that was instrumental in getting the defendants to settle?

A. I do. In my opinion, it synthesized many of the critical points that served as the foundation of our case. It brought together, in dramatic fashion, the conduct of the police, the route that they took in pursuing the suspect.

We were able to hear their actual broadcasts, and we were able to see the relevant portions of the Cranston chase policy. And in my opinion, the juxtaposition of these various elements really bolstered our case …. These were experienced [defense] lawyers we were dealing with; they did a good job for their clients. But I thought that the audio-visual portion of the case had very real impact.

Q. Where is your client now, and what is her condition?

A. She’s still in Cranston. She’s confined to a wheelchair. She’s the mother of three and a very nice woman, and I’m just very pleased that her future will be at least a little less uncertain.

Medical Negligence Now Identified As The Third Leading Cause of Death In U.S.

As unbelievable as it may seem, a study undertaken by Johns Hopkins has concluded that medical negligence is now deemed to be the third leading cause of death in the U.S. behind heart disease and cancer.  The facts surrounding this revelation are nothing short of staggering.  For example, the study concludes that the majority of medical negligence incidents are typically unreported.  This means that the documented 251,454 deaths occasioned last year by medical negligence omits entirely the larger number of unreported cases.  It also omits deaths caused by negligence at nursing homes throughout the U.S.  This trend has been in escalation for quite some time.  For example, in 1999 the U.S. Department of Health and Human Services Office reported that as many as 180,000 premature deaths were caused by medical negligence among Medicare patients alone.

Owing to disinformation perpetuated by a very effective, expensive and protracted marketing campaign, insurance companies have created the widely held impression that frivolous medical malpractice lawsuits have resulted in an exorbitant increase in physicians’ malpractice premiums.  This phenomena, so the fiction goes, has both escalated the consumer’s cost of health care while driving a certain percentage of qualified physicians to leave their  profession altogether.  Nothing could be further from the truth, however.  That the nation’s healthcare system is broken is undisputed.  The reason for its dysfunction, however, is the endless bureaucracy and red tape machinated by the insurers themselves.  As presently constituted, the  system foists artificial burdens and barriers on doctors who, after all, should make recommendations and decisions based upon a patient’s need and not upon the need to successfully navigate the insurance industry’s draconian rules.

In Massachusetts, there are other safeguards to prevent meritless lawsuits against physicians.  For example, in each instance, a Tribunal is convened in court which is comprised of a judge, a lawyer and a medical professional.  Unless a majority of the tribunal is adequately convinced that a potential case has merit, the case is dismissed.  This gate-keeping function, along with the not unsubstantial expense of pursuing a medical malpractice case usually discourages frivolous cases from being pursued in the first place.

Vigilance is the key to avoiding medical negligence.  You should seek to be your own advocate and ask your doctor lots of questions to satisfy yourself that you are receiving appropriate care.  To this end, there is no such thing as a “stupid” question.  Seeking a second opinion is yet another way of increasing your odds of avoiding malpractice.  While the United States enjoys the finest health care in the world, like all other things in life, it isn’t perfect.  Your avid awareness and participation in your medical care ensures the best possible result.

A tragedy in Boston gives us an important lesson

This weekend brought a terrible tragedy to Boston. A young woman operating a moped was struck and killed by a so-called Duck Boat. Events like this should make everyone take a moment to try and appreciate how precious life is.  And if you’re a parent, like me, that feeling is heightened.

None of us truly knows what tomorrow holds, and the stark truth of that statement is brought into focus when an accident like this occurs. Most mistakes that take place on a day in, day out basis have no consequences, thank God. But every once in a while a mistake has catastrophic consequence. Our hearts and prayers go out to the victim’s family. It’s hard to even conceive of receiving such a phone call.

After representing families who have endured similar fates, I can tell you that the responsible parties need to be held accountable. When you hear about an accident such as this, most people’s immediate reaction is to merely blame the operator of the vehicle that struck the victim. It’s been our experience, however, that someone needs to look deeper to find all responsible parties.

Truth be told, you can never really tell at the outset where the investigation will lead, but the need to drill down is there. Does the company skimp on safety; are their employees properly trained; was the vehicle in proper working order; are undue expectations placed on the drivers to meet schedules or deadlines, etc. It is as true as it is tragic to recognize that no law suit can ever bring a life back  But thoroughly and aggressively investigating each detail will almost always bring about change that may save another’s life.