Dear Lawyer Green,

Constructive Possession in Arkansas and the Seven Magic Words: "Officer, I Don't Consent to Any Searches."

2011-08-15T21:21:52Z

In Arkansas, many innocent citizens have been, and many more will be, arrested when a car in which they are a passenger is stopped for a minor traffic violation and subsequently searched. In a substantial number of these encounters, the officer will have no probable cause to search the vehicle. He'll request the driver's consent to search, and the driver will give it.

Often, this "request" will sound and feel like a demand; it may be a branch in a compound question: "You don't have anything illegal in the car do you? Mind if I take a look?"

The proper answer to that question is, "Officer, I don't consent to any searches. Am I being detained or am I free to go?"

When you find yourself arrested and charged as a result of drugs being found in the car in which you were a passenger, unless they were on your person, your charges stem from the theory of "constructive possession."

In Arkansas, the Supreme Court has consistently held that it is not necessary for the State to prove that you had actual physical possession of the drugs. Possession can be implied when the drugs are found in a place that is immediately and exclusively accessible to you and "subject to your dominion and control." If the State can prove that you had care, control and management over the contraband, you may be found guilty of possession under the constructive possession theory.

However, where evidence of possession is purely circumstantial, as it is where you are simply a passenger in the car where the drugs are found, the State needs more to establish possession. There must be some additional factor beyond your mere presence to link you to the contraband. In fact, there must be some evidence that you had knowledge of the presence of the controlled substance in the vehicle.

If the contraband is in plain view, or plain smell, the State will have the proof it needs to show you had knowledge of the presence of the contraband. Your presence coupled with knowledge of the drug's presence is enough for a judge or jury to find you guilty in Arkansas.

In sum, you don't have to be holding it to be found guilty of possession; if you can see it or smell it, you know it's there. Never consent to a search and remind your friends: "Officer, I don't consent to any searches. Am I being detained or am I free to go?"

FDA Posts New Guidelines for Sunscreen Protection

2011-08-01T17:46:22Z

The FDA new guidelines for sunscreen products should help protect consumers against both sunburns- caused by ultraviolet B rays, and skin cancer and aging-caused by the more dangerous ultraviolet A rays. Manufacturers will now be required to let consumers know if their product blocks either UVA or UVB rays. To protect yourself, you will need to use a " broad spectrum" sunscreen that blocks both rays. Manufacturers will also be required to market their sunscreen with an SPF rating of at least 15. There are 65,000 Americans diagnosed with malignant melanoma each year and almost 9,000 deaths. The FDA also is banning sunscreen that claim to be "waterproof" and "sweat proof". Remember to protect your skin anytime you will be outdoors, even if it is for a short walk.

Tomorrow's cars maybe a cure for Drunk Driving?

2011-07-07T18:57:20Z

A new bill, called ROAD SAFE ACT, was introduced on March 8, 2011 for consideration in the Senate. The bill authorizes funding to aid research of advanced technologies, which could lead to eliminating drunk driving.
" More than 10,000 people are killed each year in drunk driving crashes across the country and in my home state of New Mexico," stated Senator Udall one of the sponsor of the bill. "This legislation is designed to help keep our roads safe by investing in new technology that will prevent Americans from driving if they have had too much to drink."
The project is called DRIVER ALCOHOL DETECTION SYSTEM FOR SAFETY, or DADSS, and is a cooperation between the Automotive Coalition for Traffic Safety (ACTS), comprising the world's leading car manufacturers, and the National Highway Traffic Safety Administration (NHTSA).
ROAD SAFE (S 510/HR 2324) would provide $12 million a year over five years to help the research for DADDS. The money would come from the existing highway safety spending and not from new spending from taxpayers.
E-mail your representative and Senators in support of ROADS SAFE immediately.
Together, we can eliminate drunk driving!
www.gGreen.com
www.madd.org.

Under Age Drinking

2011-05-06T15:27:00Z

Prom Season and Drinking and Driving.

2011-05-05T18:33:00Z

Parents do matter.

It’s important to talk with your teens about alcohol, discuss rules, and if the rules are broken, then implement consequences. Show your teens that you care about them by being interested in what they are doing, and with whom they spend their time. This will open the path of communication and maybe your children will listen when you talk to them about more important things, like drinking and driving.

During prom season remember that your role and influence as a parent are crucial.

Be a positive role model.

For more information go to Mothers Against Drunk Driving www.madd.org/underage-drinking/the-power-of-parents/high-school-parents

Tornado Ready

2011-04-27T19:51:00Z

As posted by American Red Cross Greater Arkansas Region:

http://www.arkansasredcross.org/index.asp?IDCapitulo=8T5VD1P333

For particular information in your state go to: http://www.redcross.org/

Arkansas is no stranger to tornadoes. While the number of storms increases during the fall and spring change of seasons, tornadoes can occur any month of the year. And, according to Dr. Walker Ashley, a meteorologist at Northern Illinois University, Arkansas lies in “fatality alley” due to the number of mobile homes and the number of tornadoes that occur at night increases the probability of injuries and deaths; another reminder of the importance of keeping a NOAA weather radio.

These violent storms are capable of completely destroying well-made structures, uprooting trees and hurling objects through the air like deadly missiles. This past spring, the state was stressed with an especially high and rapid number of tornadoes watches and warnings April 30 and May 1 with tornadoes damages homes in numerous counties with the communities of Scotland and East End taking the brunt of the storms. Three fatalities and numerous injuries were caused by the storm’s destruction.

Know the Difference

Tornado Watch
Tornadoes are possible in and near the watch area. Review and discuss your emergency plans, and check supplies and your safe room. Be ready to act quickly if a warning is issued or you suspect a tornado is approaching. Acting early helps to save lives!

Tornado Warning
A tornado has been sighted or indicated by weather radar. Tornado warnings indicate imminent danger to life and property. Go immediately under ground to a basement, storm cellar or an interior room (closet, hallway or bathroom)

http://www.redcross.org/www-files/Documents/pdf/Preparedness/checklists/Tornado.pdf

What should I do to prepare for a tornado?

During any storm, listen to local news or a NOAA Weather Radio to stay informed about watches and warnings.
Know your community's warning system. Communities have different ways of warning residents about tornados, with many having sirens intended for outdoor warning purposes.
Pick a safe room in your home where household members and pets may gather during a tornado. This should be a basement, storm cellar or an interior room on the lowest floor with no windows.
Practice periodic tornado drills so that everyone knows what to do if a tornado is approaching.
Consider having your safe room reinforced. Plans for reinforcing an interior room to provide better protection can be found on the FEMA Web site at http://www.fema.gov/plan/prevent/rms/rmsp453.shtm.
Prepare for high winds by removing diseased and damaged limbs from trees.
Move or secure lawn furniture, trash cans, hanging plants or anything else that can be picked up by the wind and become a projectile.
Watch for tornado danger signs:
- Dark, often greenish clouds-a phenomenon caused by hail
- Wall cloud-an isolated lowering of the base of a thunderstorm
- Cloud of debris
- Large hail
- Funnel cloud-a visible rotating extension of the cloud base
- Roaring noise

What should I do if a tornado is threatening?

The safest place to be is an underground shelter, basement or safe room.
If no underground shelter or safe room is available, a small, windowless interior room or hallway on the lowest level of a sturdy building is the safest alternative.
- Mobile homes are not safe during tornadoes or other severe winds.
- Do not seek shelter in a hallway or bathroom of a mobile home.
If you have access to a sturdy shelter or a vehicle, abandon your mobile home immediately.
Go to the nearest sturdy building or shelter immediately, using your seat belt if driving.
Do not wait until you see the tornado.
If you are caught outdoors, seek shelter in a basement, shelter or sturdy building. If you cannot quickly walk to a shelter:
- Immediately get into a vehicle, buckle your seat belt and try to drive to the closest sturdy shelter.
- If flying debris occurs while you are driving, pull over and park. Now you have the following options as a last resort:
  - Stay in the car with the seat belt on. Put your head down below the windows, covering with your hands and a blanket if possible.
  - If you can safely get noticeably lower than the level of the roadway, exit your car and lie in that area, covering your head with your hands.
- Your choice should be driven by your specific circumstances.

What do I do after a tornado?

Continue listening to local news or a NOAA Weather Radio for updated information and instructions.
If you are away from home, return only when authorities say it is safe to do so.
Wear long pants, a long-sleeved shirt and sturdy shoes when examining your walls, doors, staircases and windows for damage.
Watch out for fallen power lines or broken gas lines and report them to the utility company immediately.
Stay out of damaged buildings.
Use battery powered flashlights when examining buildings—do NOT use candles.
If you smell gas or hear a blowing or hissing noise, open a window and get everyone out of the building quickly and call the gas company or fire department.
Take pictures of damage, both of the building and its contents, for insurance claims.
Use the telephone only for emergency calls.
Keep all of your animals under your direct control.
Clean up spilled medications, bleaches, gasoline or other flammable liquids that could become a fire hazard.
Check for injuries. If you are trained, provide first aid to persons in need until emergency responders arrive.

Recovery

As you rebuild

Strengthen existing garage doors to improve the wind resistance, particularly double-wide garage doors.
If your home has been significantly damaged and will require rebuilding parts or all of it, consult with your contractor about having a tornado safe room built during the process. A tornado safe room can save lives. Plans for reinforcing an interior room to provide better protection can be found on the FEMA Web site at http://www.fema.gov/plan/prevent/rms/rmsp453.shtm.
Purchase a NOAA Weather Radio to warn you of future severe storms and tornadoes.

Ask a professional to

Look at common connections in wood frame buildings and add anchors, clips and straps that will provide more strength to your home.
Reinforce masonry walls that provide structural support to your home.
Secure your chimney. Masonry chimneys that extend more than six feet above the roof or have a width of 40 inches or more should have continuous vertical reinforcing steel placed in the corners to provide greater resistance to wind loads.
Permanently connect your manufactured home to its foundation to decrease the potential for damage from high winds.

Social Security - Frequently Asked Questions

2011-01-24T15:14:00Z

What type of social security benefits are available for a disabled person?

Answer: The disabled person (the "claimant") can generally receive one of two types of

benefits defined as Social Security Disability and Supplemental Security Income. There are certain circumstances where the claimant can receive both but the important thing to remember is that in order to receive either, the claimant must be "disabled" as defined by the Social Security Administration.

How does the Administration decide which benefit the claimant may be entitled to?

Answer: If the claimant has been working and paying money on a regular basis to the

Administration, that person is usually able to receive Social Security Disability. The amount to be received is based upon the amounts that have been paid in. Think of receiving Disability as the same thing as "early retirement" - meaning that if you become disabled, you can start collecting social security retirement benefits early. You don’t have to wait until retirement age.

If the claimant has not worked much at all - or - if the disabled person is a child, that person hasn’t paid in enough to get an "early retirement". Therefore, the only benefit available for this claim is Supplemental Security Income. The amount received is based on the "needs" of the claimant, and there are maximum amounts.

There are many rules that apply to the circumstances of what amounts the claimant may or may not be able to receive. However, once again, the major factor to remember is that in order to receive anything at all, the claimant must be determined to be "disabled".

How does a person know if they are considered "disabled"?

Answer: This is a very difficult question to answer because everyone’s situation is

different, and the Social Security Administration takes many factors into consideration. Some of those factors include the claimant’s age, education and past relevant work. It places a lot of emphasis on the claimant’s medical treatment and considers the opinions of treating physicians. If the claimant is a child, the Administration considers how the child does in school and how well the child functions in social settings. In my opinion, it is nearly impossible for an attorney to predict how the Administration will view things without having the benefit of looking at all of the related information first.

Do I need a lawyer in order to apply for benefits?

Answer: Yes. Where lawyers can assist is in helping you to navigate through the process of applying and obtaining information that helps your claim. You should also know that attorneys always handle social security cases on a contingency basis which means that they earn fees only if you are determined disabled. Hiring an attorney doesn’t cost you anything up front. Also, the amount that the attorney can earn is capped by federal law such that there should be no negotiations involved.

Where can I get more information?

Answer: Your local social security office can provide you with many of the answers you

need, as well as an experienced social security attorney or authorized representative. Additionally, the social security website, www.ssa.gov , has helpful information and publications readily available.

Insurance Follows the Car

2011-01-17T18:13:00Z

We found out about insurance following the car the hard way. We did not stress to our children enough not to let anyone drive their vehicle and wound up with our insurance company paying a claim (or two) that should have been, in our minds, charged against the friend’s policy. It made sense to us that if a friend was allowed to drive the car he/she should suffer the consequences such as premium increase, depreciation and deductible. Au contraire. Negligent friend driving our car was charged against our insurance, not his.

Think about this the next time someone asks to borrow your car. It can cost you a lot more than you might originally think!

Collections

2011-01-05T23:12:00Z

One of the most common-held, mistaken beliefs about the law is that a debtor in default can pay a nominal amount to a creditor, and the creditor is required to accept the nominal payment and is forbidden from using any other process to collect from the debtor, such as suit. This is not true. In most instances, when a debtor defaults (usually by missing a payment or by making a late payment), the creditor is allowed to accelerate the remaining debt, making it all payable now. In those cases, once acceleration has been triggered, the creditor can demand the entire remaining debt as due. A creditor may accept partial payments without waiving the acceleration. Even if the creditor is not able to accelerate the debt, if the debtor is behind, they are still in default and susceptible to collection procedures, including suit.
In fact, each payment made moves the statute of limitations period farther and farther into the future.

In some cases, arguments can be made using theories such as “estoppel” and “course of dealing” to defend against the collection, however, these theories are usually not applicable because of the wording of the contract in question.

When dealing with aggressive collectors, it is always best to seek competent legal advice regarding one’s rights and options from a lawyer who is well-versed in consumer law.

Fire and Products Liability

2010-12-03T20:06:00Z

As the cold of winter sets in, our daily routines change from outside activities to inside activities. When our families come inside, we unknowingly use our electrical products in the house more than we otherwise would. Children play games, we watch TV more and otherwise seek and find entertainment from electrical appliances. As the electrical usage in our homes rise, we unknowingly tax the electrical systems and electrical products in our homes. And when anything is used to its maximum potential, its weaknesses are exposed.

Many people are injured or killed in house fires every year. The causes of these fires can range from cigarette smoking to candles to faulty electrical systems to faulty appliances. When there is a fire, it is important to immediately get a private cause and origin investigator on the scene to perform an independent analysis of the cause of the fire. This is especially important as most local fire departments do not have the resources or equipment to truly discern the cause and origin of a fire. Many times, because of their limited resources, the fire department officials are incorrect in their conclusions about the cause of fires.

It is also important that the area that was burned not be disturbed by any persons. Do not take anything from the area. Allow the professionals to do this. The mere location of an electrical appliance after a fire can provide valuable clues to assist investigators in determining the cause of a fire.

If it is determined that a faulty electrical system or product caused the fire, you may have a cause of action against the manufacturer or the product, the wiring system or the builder of the home.

At Law Offices of Gary Green, we have successfully handled many fire cases. We have a team of reliable experts that will quickly go to the fire scene and perform an investigation to determine the cause of the fire. If you or a loved one is the victim of a house fire, call us at Law Office of Gary Green.

Don't Text and Drive/Don't Drink and Drive

2010-12-02T20:22:00Z

I admit I have vacillated on whether the designing of a rearview mirror placard that reads "Don’t text and drive/Don’t drink and drive" was a good idea. We did it. Got them printed. But when I started handing them out I felt a little preachy, officious. I continued but with a joking manner - something like "Your wife tells me you need this". Finally, I’ve come to the realization that texting and driving and drinking and driving are such serious issues that it’s ok to put the information out there and perhaps make a difference. My apologies to those who are offended by the way I’ve gone about it. To those who want a free placard let me know, I’ll mail you one. If you would like to print a copy from this site, please feel free to do so.

Products Liability

2010-11-16T16:21:00Z

Products liability is the area of law in which manufacturers, distributors, suppliers, retailers and others who make products available to the public are held responsible for the injuries those products cause. Liability claims come into play when manufacturers fail to provide a safe and secure product for consumers. It is important to prove that a manufacturer was negligent by failing to keep their products free of hazards. Equally important is securing the defective product. If you do not have the product, chances are you do not have a case.

We are currently representing an individual who was severely injured when a step on his pull-down attic stairs collapsed under him. He owns his own home so there was little chance of the product being lost or destroyed. In another case, we represented an individual who was severely injured in a motor vehicle collision. After his release from the hospital, he learned that the seatbelt in his vehicle broke on impact. Had the vehicle already been destroyed, we would not have been able to proceed with a products liability claim.

Remington 700 Bolt-action Rifle

2010-11-12T19:57:00Z

Remington Arms Company has recently come under fire yet again for the alleged defective trigger mechanism used in the Remington 700 bolt-action rifle. This defect can cause the gun to fire without ever touching the trigger. The Remington 700 is widely used by both law enforcement and hunters.

In Montana in 2000, a woman was unloading her gun with the barrel pointed towards an empty horse trailer. The gun fired and the bullet went through the trailer’s wall, striking and killing her son.

The "Walker Fire Control System", patented by Merle H. Walker and Philip R. Haskell on July 11, 1950, utilizes an internal component called a connector. The connector floats on top of the trigger body inside the gun. However, and more importantly, it is not physically bound to the trigger in any way other than tension from a spring. The trigger connector can be pushed out of alignment by debris or even when bumped or jolted.

A review of U.S. Patent Number 2,514,981, indicates the issues detailed above were known at the time the application was filed:

". . . should the trigger be operated while the safety is engaged, the trigger and sear springs will immediately reposition the mechanism to catch the firing pin upon release of the safety.

It is a further object of this invention to provide a sear and control therefor which operate on barely perceptible movement of the trigger, yet releases the firing pin instantly and completely".

In 2007, Remington released the X-Mark Pro trigger mechanism. This mechanism is only installed in some of Remington’s bolt-action rifles.

A lawsuit filed in the Western District of Arkansas alleges that Remington has known about the defect for 60 years, has received in excess of 4,000 documented complaints and has paid over 20 million in settlements since 1993.

Texting and Driving

2010-11-09T19:49:00Z

Before calling someone on their cell phone think first, is that person probably driving? If so, don’t place the call!

If you receive a call or text while driving, you don’t have to answer immediately! That’s one of the wonderful things about modern technology - later, when you’re safely stopped, you can return the call with the push of a button.

On January 12, 2010 the National Safety Council released a study indicating that 28 percent of all motor vehicle collisions occur when people are either talking on a cell phone or sending text messages while driving. 1.4 Million crashes are caused annually by cell phone conversations. 200,000 of which are blamed directly on texting while driving.

19 states and the District of Columbia have banned texting while driving. Of those states, Virginia, New York, Washington and Louisiana have laws in place that require some other primary reason for stopping a vehicle.

A 2009 experiment with Car & Driver Magazine editor Eddie Alterman determined that texting and driving actually had a greater impact on safety than driving drunk. While legally intoxicated, Mr. Alterman’s stop time at 70 miles per hour increased by four feet. While reading an e-mail, his stop time increased by thirty-six feet. While sending a text message, his stop time increased by seventy feet.

For approximately $40.00 you can purchase "Texecution", an application that disables internet and texting functions when a person is traveling at 10 miles per hour or more.

Before sending a text message while driving, ask yourself this question: "Is this text message worth my life or that of the person I am sending it to?"

Department of Transportation Secretary Ray LaHood formally announced the formation of FocusDriven at a press conference on January 12, 2010. FocusDriven is an advocacy group for victims of motor vehicle collisions involving drivers using cell phones. For more information, visit

www.focusdriven.org .

Pull Down Ladders

2010-07-08T13:33:00Z

Law Offices of Gary Green is currently handling a case involving a homeowner and his pull-down attic ladder. The main problems with the ladder at issue are that: 1) A metal support rod that is supposed to run beneath each wooden step cannot be accommodated under one or more of the wooden steps due to positioning of the hand-rails on the outside of the ladder, thus leaving the strength of one or more of the wooden steps insufficient; and 2) The nails that are used to connect the unsupported wooden steps to the outside of the ladder frame are too small and light to support the use of the steps rated for 250 pounds.

If you have been seriously injured by this or any other pull-down attic ladder because of poor manufacturing, please contact us 888-442-7947 or send us an e-mail at

ggreen@gGreen.com .

Make Sure You are Covered

2009-04-22T14:43:00Z

Q. I was involved in an auto collision where I was not at fault. The driver who was at fault had minimal liability coverage, but my medical bills alone are more than that amount. What do I do?

A. Sadly, the answer to this question for many people would be, "There's not much you can do." Hindsight is 20/20, but the best answer to this question is to make sure you are covered before you are involved in this scenario. The minimum amount of auto insurance coverage that is required in many states is often not enough to cover all of your losses. On top of that, sometimes people will drive illegally with no insurance at all. It is very important that you be prepared for the unfortunate event in which you are a party to a collision where there is not enough, if any, liability coverage to make you whole after the wreck. It is important that you talk to your agent about "Uninsured" and "Underinsured" coverage.

Some Things to Know About an On-The-Job Injury

2009-04-17T13:32:00Z

You should report the injury immediately !! This is perhaps the most important thing that you need to remember. Report it to a supervisor or manager so that you will be protected. Try to get it documented. Sometimes people will think "oh, it doesn’t hurt much"....or..."well, it’s almost weekend, so I’ll wait until Monday", etc. Don’t wait!! – if you get better quickly and don’t need treatment, that’s great. However, it won’t hurt anything to report the injury when it happens "just in case".

Keep in mind that your work injury claim needs to be filed with an insurance company - not just with your employer. If your employer doesn’t file the necessary paperwork with the insurance company, you should do it yourself. Don’t assume that it’s being handled; follow up with the right people within the company.

Know that you will probably be drug tested if you are injured on the job and that if you fail the test, you will jeopardize your ability to receive treatment or wages through workers’ compensation.

Although the insurance company will have to pay for your treatment, keep in mind that they get to control that treatment in terms of which doctor and medical facilities are used. If you decide to go to the doctor or hospital of your choice, you run the risk that it might not be covered.

You can only receive lost wages if the doctor specifically takes you off work. The law doesn’t allow you do decide if you can go back to work. Rather, it’s up to the doctor. Also, if the doctor sends you back to work with restrictions (sometimes called "light duty"), it will be your responsibility to return to work. Even if you think you can’t do anything and even if you think that there is no "light duty" where you work, you still need to return to work.

In most circumstances, you cannot sue your employer. The only recovery you can get must come through workers’ compensation benefits. However - if your injury was caused by someone else that is not your employer or an agent of your employer, you may have a separate claim against that person or company. You should speak with an attorney about that possibility.

Birth Injuries - Who Will Advocate for Your Child?

2009-04-16T14:45:00Z

Each year hundreds of families suffer a birth injury at the hands of a medical provider. Many of these injuries are caused by a lack of oxygen to the child’s vital organs during what would otherwise be a routine birthing process. A physician must exercise particular care to transcend the infant from total reliance upon the mother for life’s sustenance, oxygen, food and blood, to reliance upon the child’s own heart, lungs and brain to sustain life. Minutes, and even seconds, count during this very critical time. Every moment that an infant is denied oxygen, irreversible damage occurs to the child’s brain and his or her ability to grow, learn and enjoy a normal life independently of others.

If your child suffers a birth injury, chances are your life as you know it will change forever. He or she could require special medical needs, special housing, education and transportation for the remainder of his or her life. You may even need a full time medical care provider to assist you. Even your family members will require specialized training to care for a child with a debilitating birth injury. We will hire a Life Care Planner who will work with your doctors to formulate a Life Care Plan for you child. These persons will meet with you to understand the particular needs of your family. In the end, you will have a written plan that explains and provides the costs and special needs that your child will need for the remainder of his or her life.

Birth injuries can be particularly taxing upon a family because in most cases, the infant requires special medical needs and care for the rest of his natural life. Most families are simply not equipped financially or emotionally to care for a child with a birth injury. Many of these "special needs" are neither covered by Medicaid nor private medical insurances. You and your family members may need counseling and specialized training that allow you to integrate your child into the family setting. Families in these cases need the assistance of our firm to help them recover sufficient funds with which to provide even the basic necessities of these children and their families.

Starting the Birth Injury Case- If you even suspect that the hospital or your physician was the cause of a birth injury, start by giving our medical negligence department a call. We start these, as all medical negligence cases, with the mother’s prenatal medical records, the actual birthing records and follow with the infant’s medical records. These records can be voluminous and difficult to understand. Our team of medical and legal professionals are trained to read and find the truth from these medical records. Often times, its not what is in the records, but rather, what is missing that is important.

Failure to Recognize High Risk Pregnancies- We carefully analyze the prenatal records for clinical signs and symptoms that the infant or mother may have displayed well before your due date. A few examples include high blood pressure, abnormal blood values, abnormal fetal heart strips and breech position of the child. If these tell tale signs or symptoms are apparent in the prenatal records, your OBGYN may have been fairly placed on notice that special care and attention should have been provided to your baby. In such cases, specialized physicians should have been present at the actual birth of your child. If your pregnancy was deemed "high risk" or problematic by your physician, a pediatrician should have been present at the birth of your child.

In some cases, prenatal records indicate that a scheduled C-section is warranted. In other cases, specialized physicians should be in the delivery room waiting for the arrival of your child such that immediate, specialized care can be provided. Again, every moment counts for a child. If your physician failed to take the necessary precautions, you may have a case for medical negligence.

Failure to Recognize that Your Baby Developed Late Stage Problems- We next analyze the birthing records for signs and symptoms that the child should be assisted by your physician. When you arrive at the labor and delivery department, you should be hooked up to at least an external fetal heart monitor. This device, when effectively used, allows the medical providers to track your baby’s heart rate relative to your contractions. In many cases, the fetal heart strips can be "non-reassuring" thereby suggesting that the physician abandon a vaginal delivery and immediately take the child by C-section. One of the most common occurrences we see is when the labor and delivery nurses fail to promptly communicate the mother and the infant’s physical condition with the physician. If your child suffered a brain injury and you did not see your physician during the labor process, or saw your physician very little during this critical time, you may have a cause of action for a birth injury.

Failure to Provide Prompt and Adequate Care After Birth- Once your child is delivered, the hospital must have adequately trained personnel to care for your child. Special attention must be given that your child at once begins to breathe and otherwise show signs of successful separation from the mother. Nurses and other physicians present should be certified in Pediatric Advanced Life Support and in other critical areas as well. Failure to adequately staff and train these medical care providers can equate to a birth injury if your child develops problems out of the womb. Likewise, there should be adequate staff on call to care for your child in the event of an emergency.

It May Not Be Too Late- If you have a child that is a slow learner, blind, deaf, crippled, unable to walk, deformed, or otherwise mentally or physically deficient and you were never provided an explanation that satisfied you, it may not be too late to pursue your birth injury case. Many states allow a minor to file an action for birth injury up to even his or her 21^st birthday. For example, in Arkansas, an action for birth injury may be filed by a child up to his 11^th birthday. In some other states, the action does not expire until even later. If you think your child suffered a birth injury, don’t hesitate to give us a call. Someone has to be an advocate for your child.

How much is my totaled car worth?

2009-04-09T18:58:00Z

Well, the answer is "it depends". Not on how much you paid for the car, or how much you still owe on the car, but on the value of the car immediately before the wreck as compared to its value immediately following the wreck. The amount left on your car note is irrelevant.

Example: You drive a 2004 Nissan Maxima. You bought (financed) the car in 2007 for $15,000. Over the last 2 years you have made $6,000 worth of monthly payments. This leaves you owing $9,000. Yesterday, you were t-boned and the damage to the car makes it a total loss. This means it would cost more to repair the car than it’s worth. Why then, if you still owe $9,000 on the car, is the other driver’s insurance only willing to give you $7,500 for the total loss? The short answer is that although YOU may still owe $9,000 for the car, at the time of the wreck a five year old Maxima (same make and model, same mileage, same features) had a market value of only $7,500. They are not obligated to pay off the car for you, so that means you will still owe $1,500 on the note. They should, however, also pay you for the sales tax you would incur to buy another vehicle of equal fair market value and the cost of license and registration. You must still make your payments, or make one lump sum payment to the finance company to satisfy your obligation.

All this means is "YES", you can be an innocent victim of someone else’s negligence, and still be responsible for paying off your car note. The lesson here is to make sure you negotiate a fair price for your vehicle (according to make, model, mileage and features), and to carry adequate collision coverage on your own policy.

The Road Map to Medical Negligence

2009-04-07T15:32:00Z

We all care deeply for our family members and hate to see them suffer from any acute illness or injury that is caused, or apparently caused, by a medical provider. This emotional suffrage is heightened when our family members seek medical treatment and their condition is either exacerbated or a totally new illness or injury is created during the medical treatment regimen. In short, when we go to the hospital or doctor seeking treatment for one illness and we come away with a new illness or injury in the process, redress may be in order.

I speak with hundreds of persons each month who suspect that they or a loved one has been the victim of medical negligence. If you suspect medical negligence, it is better to call and inquire than to sit on your rights. However, every case that involves negligence by a medical provider may or many not justify litigation for a variety of reasons. When you call, you can rest assured that we will analyze your case from several different angles and that we will fairly report our findings to you. Each of those facets are discussed below.

Case Intake Process- If you suspect that you or a loved on is the victim of medical negligence, you can begin the process by giving our medical negligence department a call. It is important that you act quickly as an applicable statute of limitations applies to your case. Only in limited situations can you file litigation for medical negligence after the applicable statute of limitations has expired. For example, in Arkansas, the statute is two years from the date of injury; in Tennessee, one year; in Texas, two years; and in Missouri, two years. Although this sounds like a long time, it is not as the proper analysis of a medical negligence case is very time consuming.

When you call, be prepared with information on the victim, including their full name, address, telephone number, date you believe the injury occurred and the factual circumstances behind the event. If you can, find out the names of the persons, e.g, names of physicians, nurses and other medical providers who provided any treatment to the victim. If you are not prepared to call us yet, keep good notes of your conversations with the medical providers, including the names of the persons you spoke to and the information they relayed to you. Take discreet photographs of the injuries and the victim if possible as and when treatment occurs.

Initial Case Analysis- Our trained professionals may be able to discern immediately if you have a viable medical negligence case. Remember, sometimes, bad things happen to good people and even though you or your loved one received a bad result in their medical treatment regimen, it may not justify legal action. Our staff may, based upon the information you provide, may elect to take the next step and obtain proper releases such that we can obtain your medical records.

Medical Record Analysis- Medical records can be burdensome in many ways. First, it can take up to three months or more to obtain all of the records depending upon the extent of the treatment you received and the number of medical providers involved in your treatment. Second, they can be confusing and difficult to read. Our professionals are trained to interpret the records and find the truth about your treatment. This too, can be time consuming depending again, upon the extent of the records. It is not uncommon that the total medical record for a serious illness can be over 2000 pages long. Third, if the medical negligence case involves the death of a loved one, we may have to set up an estate before we can even request the medical records. Unfortunately, the medical records are required in every medical negligence case. There may be some cases where we ask you to obtain the medical records for reasons beyond the scope of this blog.

Additional Information- Our staff will probably call you for additional information as the case progresses. It is important that you timely provide the information as and when it becomes available to you. It is also important that you document your treatment with written notes, photographs and other things that will help you recall what occurred.

Final Analysis- Once all the records are received, we began our "in house" review by our staff of medical and legal professionals. There are many angles and areas from which a putative medical negligence case must be analyzed. Each and every case must contain proof of negligence, or a violation of the standard of care, causation and damages. Each of these areas are discussed below.

Violation of the Standard of Care. We must ascertain, and be prepared to prove in a court of law, that the medical provider has violated the standard of care. A violation of the standard of care is often used interchangeably with "negligence." The negligence may involve action, or a failure to act that was wrong. Sometimes, the negligence may be apparent. For example, if a surgeon leaves a foreign object in your body during a surgery, such as a sponge, the negligence is apparent. In most cases, however, your case must be referred to a medical provider of the same specialty for analysis to determine if the medical provider violated the standard of care. This "medical expert" must be willing to review the records and then testify that the medical provider "violated the standard of care". In so doing, he or she must describe the mistakes made by the medical provider, describe the better course of action and how the outcome would have been different.

It is often said that medicine is last great frontier. Truer words are never spoke with reference to medical negligence. The truth is, although modern medicine has extended the life of many over the past 20 years, we still don’t know everything about the human body. There are many diseases and conditions for which there simply is no cure. Furthermore, medical providers, much like attorneys, often must make judgment calls as to the best course of action in your treatment regimen. He or she makes those judgment calls based upon the medicines and facilities that are available to them at the time of your treatment. The fact that your medical provider made the wrong call, or a call that caused a bad result may not automatically be a violation of the standard of care. It may simply be a good faith judgment, albeit errant, call for which there is no remedy.

Hence, finding a qualified expert is not as easy as it sounds. In most cases, we must go out of state to locate such persons as local physicians are hesitant to testify against their peers. Further, because medical providers are often placed in a position where they must make judgement calls about your care and treatment, it is not axiomatic that an errant call is a violation of the standard of care.

Additionally, the quality, size and location of the hospital may impact the applicable standard of care. For example, what might be negligence at the Mayo Clinic may not be medical negligence at a hospital located in rural Arkansas. Stated simply, as the size of the locality and hospital increases, so does the expectation as to the quality of treatment received. Likewise, the "standard of care" rises in large facilities and cities. Therefore, depending upon the state where you live, we might also have to find a medical provider that is familiar with standard of care in the location where you received treatment. In such cases then, we may not be to retain a physician who practices medicine in New York City to testify in a case that occurred in a city of 5000 people.

Causation- We next examine the case to ascertain whether the violation of the standard of care "caused" the bad result. Again, a qualified expert must be willing to testify that but for the violation of the standard of care, your outcome would have been different. For example, if a physician failed to diagnose liver cancer resulting in death, he may have fact been negligent. However, it may be difficult to find a physician who would testify that the outcome would have been different, i.e., the negligence caused the death, as liver cancer is 99% fatal. In a case such as this, it was not the physician’s failure to diagnose the cancer that resulted in the death; rather, it was the cancer itself. In short, there can be no intervening or "other" cause that resulted in the bad result. We will gather information about your entire medical history to assist us in elimination of "other causes."

Damages-Finally, we examine the extent to which you have been damaged and whether these damages were actually caused by the negligence. Typical examples of damages are death, amputation, brain damage, lost wages, the costs of past and future medical expenses, pain and suffering, and scarring and disfigurement. Any damages that we assert on your behalf must be directly caused by the negligence. For example, if you were retired when the negligence occurred, you could not recover "lost wages" as you were not a wage earner when the negligence occurred. In other words, it was your retirement that caused you to lose your wages, not the medical negligence. We will ask you to provide us with photographs of the victim, tax returns and other similar items to establish your damages.

If you have been rendered disabled or in need of vast future medical costs or care, we may hire a life care planner to calculate your damages. The life care planner will ultimately prepare a life care plan for you. The LCP will outline the costs of future medical expenses and needs, transportation, housing and other special needs that are required due to your disability. We may also hire an economist to calculate your future lost wages. Finally, we may also hire a vocational rehabilitation expert to assist you finding new employment or in determining even if you are employable with your injuries.

Subjective Factors- Finally, we analyze your case based upon subjective factors. These items are too voluminous to list. Examples are where the case would have to be filed (venue), the stress that litigation places upon the family, the willingness of family members to participate in the case, the costs to prepare the case relative to the total damages, recent jury verdicts in your county, availability of insurance and the collectability of any verdict and a host of other factors.