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Legal Nuggets- Medical Malpractice

A medical doctor or other medical professional can be sued for malpractice if their care fell below the recognized standard of care in their profession, and if that bad care caused an injury. However, a medical caregiver is not liable for a bad result that was not caused by malpractice. A doctor does not insure that his or her care will always result in an improvement or cure of a medical problem.

While a few cases of malpractice are clear and obvious, if for example a surgeon amputated the wrong limb; most cases are complex and whether the doctor’s care was substandard is not an easy judgment.

Medical malpractice cases are expensive to litigate. Both sides will have to retain experts to testify and often there are many involved. In addition to those experts’ fees, which can range from $200 per hour to $1,000 per hour, there are large costs for copying, deposition transcripts, and travel.

Many states have passed special laws making it harder to bring medical malpractice cases to court and limiting the damages that can be awarded, even to catastrophically injured plaintiffs. Also, juries tend to favor doctors and give them the benefit of any doubts.

On the other hand, some of the larger verdicts that are awarded in civil cases are in medical malpractice cases because the injuries from malpractice are often horrible. If the doctor or hospital has aggravated the situation with callousness or attempted to cover-up the facts then the jurors may wish to punish the wrongdoers with a large award of damages.

Every case must be evaluated on it s own merits. If you or someone you know has suffered a bad medical result, which you suspect could have been caused by malpractice, then you should act at once to have the case investigated by an experienced attorney. Delay will only hurt the case.

Limited Liability Companies (LLC)

Theory Meets Reality

The Limited Liability Company is a relatively new animal on the business entity scene. It is the result of the recognition that corporations as they really existed and were operated in the real world did not often follow the legal fiction of the corporation.

The corporate legal structure had evolved over the centuries to suit large business enterprises that were operated with formality; however, most businesses today are relatively small and operate informally. As small businesspersons sought the advantages of the corporate entity they found the formalities of boards, shareholder meetings, and the like, to be unduly burdensome.

Eventually pressure built for the creation of a business entity that enjoyed the legal advantages of a corporation without the onerous duties imposed by traditional corporate law. In effect, small businesses wanted have their cakes and to eat them too (or sell them, as the case may be).

The Limited Liability company was born out of this overwhelming need to allow small businesses to prosper with minimal legal encumbrance. A Limited Liability company, as the title suggests, has limited liability much as a corporation has. However, the courts can not disregard this liability limit on the grounds that the business owners had operated the corporation as a “fiction” and “alter ego.” Thus, Limited Liability members (as shareholders are called in the LLC world) don’t have to place their personal fortunes at risk simply by failing to hold shareholder meetings and writing minutes, which are reasons why limited liability for corporate shareholders has been lost as a judge “pierced the corporate veil.”

The IRS has treated Limited Liability Companies with extraordinary generosity; allowing the member(s) to elect how the LLC will be taxed. The organizing member can pick whether to be taxed as an individual (sole proprietor); partnership (if there are at least 2 members); corporation or S corporation.

Legal Nuggets- Legal Fees

Because every case is different, it is difficult to know in advance what the fee will be. I can say with certainty that I will charge a contingency fee is injury cases.

Fee Determination Factors:

Some or all of the following factors may be taken into account when determining a fee structure and setting a fee:

  1. The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly.
  2. The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment.
  3. The fee customarily charged in the locality for similar legal services.
  4. The amount involved and the results obtained.
  5. Time limitations imposed by the client or by circumstances.
  6. Nature and length of the professional relationship with the client.
  7. Experience, reputation and ability of the lawyer or lawyers performing the services.
  8. Type of fee structure (fixed fee, hourly rate, contingent, or other).
  9. Location of courthouse and type of court that will be involved.
  10. Source of Referral

If you are referred to me by Pre-Paid Legal, Hyatt Legal Plans, or the S. C. Bar Lawyer Referral Service, my fees must be within that organization’s guidelines.

Please feel free to discuss the types of possible fees that could be charged and what preferences you have. Payment plans can be used in some cases, but not all. Generally, I require a down payment (retainer fee) in all “set fee” and “hourly fee” cases.

Legal Nuggets- Hurt on the Job

If you are injured while engaged in an activity that is a normal part of your job duties, or even a special assignment, there are a variety of benefits you might be entitles to recover. Here is a listing of benefits that COULD be available to you, depending on the facts of your individual case:

  1. Workers Compensation
  2. Short Term Disability
  3. Long Term Disability
  4. Medical Leave
  5. Medical payments coverage
  6. Liability insurance (from various third parties)
  7. Underinsurance coverage
  8. Un-insurance coverage
  9. Social Security Disability coverage
  10. SSI
  11. Victims Comp Fund

It is very hard to determine what benefits are available in some cases. Plus, there are set-off provisions that apply to some, but not all of the coverages. To make sure you claim all benefits that you may be entitles to, please contact me for a free consultation at (864) 232-1676.

Estate Planning in an Uncertain Environment

Since 2001 when President Bush signed the Economic Growth and Tax Relief Reconciliation Act, we’ve seen estate tax exclusions climb and rates paid on taxable estate assets decline. The exclusion elevator continues until 2010, when the federal estate tax disappears for one year. If Congress fails to act, the exclusion falls back to $1 million in 2011. Any new legislation may cut the top tax percentages or increase exemption amounts. But don’t look for permanent estate tax repeal. Estate taxes have gone away “permanently” before- and have always come back.

That said, uncertainties complicate estate planning. Many estate planning attorneys look for flexible techniques when a client’s assets approach the top of the current exclusion amount (the bubble). They are reluctant to advise something that’s irreversible, causing clients to give up control, unless there are other reasons besides tax minimization for doing so. Irrevocable transfers of wealth and control are likely to come back to haunt clients later.

I recommend four anchoring strategies in our shifting estate tax landscape:

1. Testamentary trust. This trust, the provisions of which don’t take effect until the grantor’s death, can be built into a will or a trust. Therefore, you can make adjustments as tax laws change.

2. Irrevocable Life Insurance Trust (ILIT). While this trust is not changeable in itself, your estate still gets the policy proceeds when you die. And you (or your trustee) retain the flexibility to stop paying for the insurance if you don’t want it any more.

3. Gifting. This is usually a viable strategy only if you’re planning to gift to the recipients anyway. However, it can be useful for trying to stay under the bubble and insuring that certain people receive certain assets.

4. 529 College Savings Plan. If you’re planning to fund all or part of a grandchild’s education, this is better than random giving. You can front load with five years of giving ($60,000) when you set it up, and usually you can add $12,000 annually. It grows tax-free and you retain control.

For more information on these techniques, consult with an attorney. Any strategy begins by defining the goals for your estate. Once that’s done, you can plan proactively to transfer your estate in ways that fulfill your wishes priorities- not just to minimize taxes.

Legal Nuggets- DIY Divorce

Why not save money and prepare your own divorce paperwork using the free forms or forms for sale on various internet sites?

While that might work-out okay for you in some situations, it could cause you many problems in others. Here are some problems you might encounter:

  1. If the papers are not filed with the proper court and served in the correct way, you could find out that you have wasted a lot of time and the costs you spent on filing and serving the papers. For example, if you are able to get a court to issue a written grant of a divorce (also called a decree of divorce) your spouse could attack it at a later date by arguing that the court which you used did not have jurisdiction. Jurisdiction can be hard to determine. Cases in which jurisdiction is the main point of contention have been appealed all the way up to the U.S. Supreme Court. Obviously even very smart, experienced lawyers and judges have disagreed over whether a particular court has jurisdiction in a particular case. In divorce cases, jurisdiction can be tricky to figure out when one or both of the parties have changed their state of residence since they separated. If minor children were born during the marriage, and the parents are living in different states, then jurisdiction may have to be decided pursuant to a Federal statute and that will involve judges conferring and deciding.
  2. Even if you are granted a divorce, you may have tax liabilities that arose during the marriage because you filed “jointly’ with your spouse and the I.R.S. says you owe taxes. By getting a divorce first, without addressing the tax issue, you could find yourself stuck paying taxes on income that your ex-spouse spent.
  3. If you get a simple divorce and fail to address the debt issues from the marriage, you could find that you are forced to pay debts your ex-spouse created during the marriage. For example, if you signed a lease, credit card agreement, or purchase contract during the marriage, you could be sued by the creditor after you have been divorced.
  4. If you try to get a divorce on some grounds that are not recognized in your state, you could find yourself having to start the paperwork over (amending it) and thus incurring the costs and delay to serve the new paperwork. For example, the law of South Carolina does not recognize “mental cruelty” as a grounds for divorce.
  5. By failing to request alimony in your divorce papers, you are most probably waiving the right to ever claim it from your spouse. If, for example, you obtain a “do it yourself” divorce in South Carolina and discover soon afterwards that your ex-spouse won millions of dollars in the lottery, you will be unable to then go to court and request alimony.

These are just some of the pitfalls you could experience by taking the so-called frugal route of a do-it-yourself divorce. Is it worth the risks?

Legal Nuggets- Criminal Charges and Arrests

Criminal charges are the accusations made by the government against someone for violations of criminal laws. These alleged criminal acts can include mundane matters such as driving offenses, bad checks, failure to return rental property or more notorious ones such as robbery, battery or murder. While the driving offenses don’t often result in arrests, the others do. So called “white collar crimes” include such wrongful acts as antitrust violations, fraud, and violations of securities laws. Many crimes can be handled at the regulatory level or in the civil-side of our legal system if the government prefers. That is often the approach to cases in which there is no evidence of criminal intent.

To ease the backlog of cases in our criminal courts, many jurisdictions have developed pretrial diversion programs that are designed to substitute education and rehabilitation for punishment for first time offenders in cases of primarily non-violent crimes.

Every criminal case begins with a charging document – a ticket, a summons, an indictment or a criminal information. For more serious offenses, typically called felonies, a neutral judicial officer (often a Magistrate) must examine the charges and rule that there is sufficient evidence for the prosecution to go forward.

Most of the rights and procedural safeguards of people accused of crimes are granted in the state and federal constitutions. Some of the rights include:

  • Right to counsel
  • Right to remain silent
  • Right to a jury trial
  • Right to confront the accuser
  • Right to a speedy trial
  • Right to a public trial
  • Right to reasonable bail
  • The presumption of innocence
  • Freedom from double jeopardy
  • Freedom from ipso facto punishment
  • Freedom from cruel and unusual punishment

If you are approached by a law enforcement officer who wishes to question you about a possible crime, you should exercise your right to remain silent and your right to legal counsel. If you are the victim of a crime, you should report it to the authorities as soon as possible to avoid destroying any evidence.

Just as in the civil law, most cases in the criminal side of the legal system are resolved without a trial; some are dismissed and others are settled with plea agreements. Most defendants who enter a plea agreement do so because they wish to avoid a stiffer penalty, which is likely if they are convicted at trial.

Legal Nuggets- Accidents

Injuries from so-called accidents are often disasters to the injured person. And the word “accident” is often a misnomer because the injury was caused by someone’s carelessness or negligence. In some cases, such as DUIs the wrongful actor was actually guilty of recklessness (sometimes called gross negligence).

If the injured person is disabled as a result of the injuries, his or her life may be destroyed by pain, suffering, loss of enjoyment of life, bankruptcy, divorce, and other negative consequences.

If you are hurt on the job in an accident then you are covered under workman’s compensation insurance and may not bring a lawsuit for damages against your employer. However, in some cases you may be able to bring a lawsuit against the manufacturer of a defective product if that defective product caused your injuries. This is called a products liability lawsuit.

Some accidents unfortunately cause the death of the victim. In those cases the close family members of the victim can bring a lawsuit known as a wrongful death action. If the victim lived for a period of time after the injury then a “survival” lawsuit may be appropriate.

People, corporations, other businesses, and organizations can be sued for wrongfully causing personal injury to someone for a variety of causes, such as, wrecks, dangerous or defective products, toxic torts, unsafe premises, intentional torts, assaults and /or batteries, intentional infliction of emotional distress, and other wrongs.

The injured party would be entitled to receive compensation for his or her actual damages. Actual damages include such things as medical bills, hospital bills, chiropractic bills, permanent impairment, scars, lost wages, pharmaceutical bills, and other out-of-pocket expenses. Additionally, the victim is entitled to damages for pain and suffering (past, present and future), future medical expenses, and emotional distress.

In serious cases where the wrongdoer’s actions amount to recklessness, the victim may be entitled to punitive damages, which are damages designed to punish the bad actor. These are also called exemplary damages because they are intended to set an example by punishing wrongful behavior and thus discouraging future such bad acts.

All these types of lawsuits arising from so-called accidents are part of the civil law system, not the criminal law system. In the civil legal system the accused wrongful actor is not arrested. And if the bad actor loses the lawsuit he or she is found “liable” not “guilty”. The verdict for damages is the only remedy in the civil law. Actual damages are not intended as punishment. Only in a criminal case can the wrongdoer be required to go to jail.

The liable wrongdoer who caused the “accident” can escape paying the judgment if he or she has no assets or declares bankruptcy. Thus, in most cases the victim is only actually compensated if the wrongdoer has insurance coverage or sufficient assets.

In conclusion, be aware that every accident case is different. You would be wise to have an attorney review the specifics of your case with you so that your legal rights will be protected. If you delay you could lose the right to make the claim for your injury because of statutes of limitation. Most attorneys like me who represent injured people will gladly give you an initial consultation at no charge. Take that wise step now and contact a good lawyer.