Norfolk-Portsmouth Personal Injury Lawyer - Wrongful Death

Wrongful Death Suit Reinstated in Virginia (VA) Against Parents Hosting Visting Teen

Rick Shapiro — Fri, 06 Nov 2009 18:41:31 GMT

Courts and juries can find adults who have temporary supervision or custody of children liable for injuries to those children even when the harm resulted from the actions of someone other than the supervising adults.

Summarizing this Nov. 5, 2009, ruling by the Virginia Supreme Court in a single sentence is difficult. As is all-too clear above.

What the ruling means for babysitters, parents who allow their children's friends to sleep over or spend other long periods visiting, or teachers and care providers is that they can be found to have a legal and civil duty to protect other people's children even when the children are not physically with the babysitter, host, teacher or caregiver.

Virginia's High Court voted 5-2 to support this interpretation of adults' child care responsibilities and liability when partially reversing a lower court's ruling that Richmond-area parents could not be held liable for the death of a North Carolina (NC) who was spending the night at their home.

The lawsuit stemming from the car crash death of 14-year-old Jaimee Elizabeth Kellerman now returns to a Virginia circuit court. In 2005, Kellerman died when a car she was riding in and which was being driven recklessly by 17-year-old Nathan DeFrank ran off a rural highway and hit a tree. Kellerman had permission from her parents to sleep over at the home of Paul and Paula McDonough. But, according to a Daily Press report, Kellerman's parents had specifically asked the McDonoughs not to let Jaimee ride with "boys with cars."

The Kellerman family is seeking $15 million from the McDonoughs in a wrongful death suit for being negligent in protecting Jaimee.

I cannot speculate on the outcome of the reinstated lawsuit, but I can say the Virginia Supreme Court has affirmed a high degree of liability for responsible adults in protecting children from the actions of other people. Broad determinations of liabilities are not rare, especially in regards to wrongful death claims. In light of this, and particularly the ruling in the Kellerman case, I can only advise adults asked to supervise minors (i.e., anyone under 18 years of age) to exercise the greatest care in ensuring those children's safety--a rule nearly all parents already follow but one which this tragic case underscores..

About the Editors: The Shapiro, Cooper, Lewis & Appleton personal injury law firm, whose attorneys work out of offices in Virginia (VA) and North Carolina (NC), edits the injury law blogs Virginia Beach Injuryboard, Norfolk Injuryboard, and Northeast North Carolina Injuryboard as pro bono services.

EJL

Originally posted at InjuryBoard by Rick Shapiro

Rail Operators Failing to Maintain Safe Crossings

Randy Appleton — Sun, 18 Oct 2009 14:01:53 GMT

Last Wednesday, a Minnesota (MN) Washington County Court judge affirmed a $21.6 million jury verdict against rail operator Burlington Northern Santa Fe Corp. for failing to maintain a safe railroad crossing. The judge also assessed $4 million in penalties against BNSF for destroying evidence in the case and for paying unqualified individuals for supposedly expert testimony.

BNSF had been defending itself against civil charges that its neglect of crossing safety led to the deaths of 17-year-old Bridgette M. Shannon and of Brian L. Frazier, Harry J. Rhoades Jr. and Corey E. Chase in Anoka, Minnesota on the night of Sept. 26, 2003. Each of the young men were 20 years old when the car they and Shannon were in was struck by a freight train traveling through a crossing where gates to block cars and trucks was not working.

Citing court documents, a Star Tribune article listed the following actions as BSNF’s “biggest blunders” in presenting it unsupportable defense:

Destroying a laptop that contained data about the train’s speed and the crossing signal procedures.
Losing or destroying a computer disk containing train and signal performance information.
Failing to inform inspectors and plaintiffs that it knew of signal problems.
Destroying records of track work at the crossing.

Railroad crossings should to be clearly marked, and train operators must ensure that any installed crossing gates and warning bells and lights are maintained in proper working order. Also, while not required, it is advisable that active tracks have gates at crossings and that crossings be cleared of anything that can obstruct a driver’s, pedestrian’s or train engineer’s vision. Failure to meet to follow safeguards caused a collision between a freight train and a car as recently as this weekend.

The Toledo Blade reported Sunday morning that Chris Butler and his son his, Craig Chadwick, died when their car struck a Norfolk Southern freight train as it crossed a long, private gravel driveway in the town of Delta, Ohio. Neither Ohio nor federal laws requires trains to blow their whistles when they cross private roads or paths, and the crossing where Butler and Chadwick were killed is marked only with stop signs and “Private Railroad Crossing” signs. A large shrub blocks the view down the tracks in one direction.

Having represented victims of railroad accidents since the 1980s, I know too well how important clearly marking and safely maintaining railroad crossings are. Judgments such as those in the BNSF case go some way toward ensuring railroads keep crossings safe, but the tragic accident in Ohio should remind everyone that much progress remains to be made.

About the Editors: Shapiro, Cooper Lewis & Appleton is a law firm which focuses on injury and accident law, and we have experience handling FELA and general railroad injury cases. Check out our case results to see for yourself. Our primary office is in Virginia Beach, Virginia (VA). Our lawyers hold licenses in NC, SC, WV, KY and DC and have handled hundreds of railroad injury and FELA cases. We would like to send you one of our FREE reports about railroad injury and FELA cases, such as the Dos and Don’ts When Injured at a Railroad--The Railroad Workers FELA Rights and What Railroad Claim Agents Won’t Tell You (But You Must Know). We are ready to talk to you by phone right now. We provide free initial confidential injury case consultations, so call us toll free at 1-800-752-0042. Our injury attorneys also host an extensive injury law video library on Youtube. Further, our lawyers proudly edit the Virginia Beach Injuryboard and Norfolk Injuryboard as pro bono public information services.

EJLOriginally posted at InjuryBoard by Randy Appleton

Fentanyl/Duragesic Patch Claims: A History of Death and a Dangerous Drug

John Cooper — Tue, 30 Jun 2009 15:21:44 GMT

Fentanyl, a drug approximately 100 times stronger than morphine, has been linked to many fatalities due to inappropriate use and medical error. Fentanyl, also called Duragesic, was developed in 1959, is used to treat post-operative and chronic pain, and also used in clinical practice as a general anesthetic. Fentanyl is also used illegally, becoming popular in drug culture for its euphoric effects. Fentanyl has been used as a direct substitute for heroin; however, its extreme potency increases the rate of overdose and can lead to respiratory problems and even death.

Recently, Fentanyl has been the subject of law suits involving doctors and pharmaceutical companies. In 2004, five lots of the Duragesic pain patch, produced by Johnson & Johnson were recalled for problems due to Fentanyl. The Duragesic patches have contained Fentanyl since 1990; however, the defect in 2004 allowed the Fentanyl gel to leak from the patch directly onto the patient’s skin. Once Fentanyl came into contact with the patient, it was absorbed by the body in dangerously high levels. The FDA reported hundreds of fatalities due to these defective patches.

A subsidiary of Johnson and Johnson, Janssen Pharmaceutica Products, was sued in 2003 due to Duragesic patches. The family of the deceased sued after the victim’s death was found to be caused by the use of the Duragesic patches for chronic hip pain. The family received 5.5 million dollars as the result of a wrongful death suit against the company. It was more than a year after this event that the company began issuing warnings about the health risks of using Duragesic patches.

Fentanyl has also been linked to medical malpractice and medication error. Cephalon has provided some important safety information to those prescribed any medication or treatment that involves Fentanyl (specifically Fentora).

- No doctor should prescribe Fentanyl products to those who are opioid in-tolerant. Such as patients taking 24 hour opioid treatment.

- Fentanyl should only be used for labeled indications

- Fentanyl is not for acute pain, or sports injuries

- Fentanyl should never be used as a replacement for other medication or treatments such as Actiq

Although there are appropriate uses for Fentanyl, you must be careful that you are not abusing the substance. Many suffer from abuse of Fentanyl simply by accident, through medical malpractice or product defect. Staying aware of possible side effects and complications with your treatment and medication will allow you to recognize problems and catch symptoms early on. Anytime you are introducing foreign substances into your body, whether prescribed or not, make sure you follow directions, and contact a medical provider if you start having any negative effects from the treatment.

Many wrongful death lawsuits against the manufacturers of Fentanyl and Duragesic pain patches have focused on defects, leaks or improper prescription of the pain patches. Our firm has investigated several deaths and it is clear that the cases we investigated involved accidental, not intented death, and toxic amounts of fentanyl, proved by autopsy toxicology reporting.

Prior fentanyl/duragesic articles we have authored:

Lethal Weapon of Overdose Death: Fentanyl

Fentanyl/Duragesic Patches Associated with Death and Overdose

Fentanyl Death Case Results and Information

Being well educated and well informed is the first step to better treatment and a brighter future. It’s your body, and you only get one. Stay healthy, and stay safe.

About the Editors: Shapiro, Cooper Lewis & Appleton personal injury law firm is based in Virginia (VA), near the NE North Carolina (NC) border and handles car,truck,railroad, and medical negligence cases and more. Our lawyers proudly edit the Virginia Beach Injuryboard, Norfolk Injuryboard, and Northeast North Carolina Injuryboard as a pro bono public information service. Lawyers licensed in: VA, NC, SC, WV, DC, KY.

Originally posted at InjuryBoard by John Cooper

Man Pleads Not Guilty to DWI Charge, and Now Faces Homicide Charge

Jim Lewis — Thu, 28 May 2009 14:50:00 GMT

They say the third time is the charm. Blessings come in threes, right? Not so, for Matthew Ray Burch, 35, of New Kent, VA. He was charged with his third DWI in April, after a head-on collision that left 19-year-old Williamsburg resident Christopher Mellis dead just before midnight on April 10.

Burch pleaded not guilty to a felony DWI charge – once again, his third – as well as not guilty to involuntary manslaughter and to a direct indictment of felony homicide handed down by the Williamsburg-James City County Circuit Court grand jury Wednesday, May 20. Burch is being held at the Virginia Peninsula Regional Jail without bond. He is scheduled to appear in Circuit Court on July 13.

As a personal injury attorney, this case piques my interest. As a citizen and as a human being, it really lights a fire under me. I have not read the police report, so I make no claim to know the details of the case, but I do know that when I read a news story about a man who, after his THIRD drinking and driving violation, finally claims a life, it causes me a deep, deep sadness. To make matters worse, the life he claimed was that of a young man, a child really, who had the world at his feet, ready for the taking.

This case really makes me think hard about the work that I do – the people I work for, the citizens I serve. This story really hits home how important it is to have someone working hard for your rights as a victim. Christopher Mellis did not deserve to die this past spring, and it is because of victims of negligence, recklessness, and ignorance that I continue to do the work I do. The never-ending work of protecting and rectifying citizens’ rights is a long, hard battle, but it’s one worth fighting. And it’s why all we do is personal injury law.

Shapiro, Cooper Lewis & Appleton personal injury law firm is based in Virginia (VA), near the Northeast North Carolina (NC) border, practicing primarily in the southeastern U.S. and handles only injury law, including car, truck, railroad, and medical negligence cases and more. The firm's website is: hsinjurylaw.com, the firm edits the injury law blogs Virginia Beach Injuryboard, Norfolk Injuryboard, as well as the Northeast North Carolina Injuryboard and also hosts a video library covering many FAQ’s on personal injury subjects. Lawyers licensed in: VA, NC, SC, WV, DC, KY.

Originally posted at InjuryBoard by Jim Lewis

Mediation is Key to Best Outcomes in Virginia (VA) Wrongful Death Cases

Jim Lewis — Sat, 24 Jan 2009 08:55:46 GMT

The handling of a wrongful death case in Virginia or any state is one of the hardest kinds of cases that a personal injury lawyer is called upon to handle. The need to really get to know your client by visiting the family home and perhaps going to the gravesite of their deceased loved one is critical to understanding and being able to present the losses and grief caused by someone else’s fault. Because the death of a family member in an accident is such a devastating emotional event in the life of the widow or children left behind, it is often a great blessing if the case can be resolved through agreement to settle the case at mediation if a fair value can be reached with the insurance company for the at-fault company or individual.

Our law firm prides itself on being able to achieve the best possible results at the mediation phase by really getting to know our clients, knowing how to put on a mediation presentation with real impact, and getting the job done to resolve the case without putting the family through the further pain of a full-blown jury trial. Please read more about our work in the field of mediated settlements of personal injury and wrongful death cases in a recent article written by my fellow lawyer John Cooper.

Originally posted at InjuryBoard by Jim Lewis

Wrongful Death Cases and Family Stress

Randy Appleton — Fri, 23 Jan 2009 13:51:19 GMT

When our law firm handles a wrongful death matter in a car accident case in Virginia (VA), North Carolina (NC) or elsewhere, we try to not only do a great job at getting the most money we can from the insurance company, but also helping the survivors to cope with the emotional toll that the situation has put the family into when someone has been killed as the result of the fault of another driver.

Likewise, when I as a veteran FELA lawyer help a family whose relative has been killed by mesothelioma, a cancer caused by exposure to asbestos in railroad work, I have to use all my skill at hearing what the family’s financial and emotional needs are to make sure that those needs are addressed. A good recovery may allow them to move on with their lives as best as possible. This delicate hand holding in the context of wrongful death cases is discussed by my fellow lawyer John Cooper in a recent article he put on our firm’s website.

I hope for you that you never have someone struck down by the fault of another, but if it does, I hope you will have the wisdom to pick a lawyer who has the knowledge and compassion to help you through that difficult situation in the best possible way.

Originally posted at InjuryBoard by Randy Appleton

Virginia State Bar Does Not Demand Lawyers Have Malpractice Insurance

John Cooper — Thu, 15 Jan 2009 18:27:35 GMT

Your Virginia (VA) injury lawyer does not have to have liability insurance to cover you if he makes professional errors on your case. I know this sad fact from an article in Virginia Lawyers Weekly reporting on a decision not to make lawyer malpractice insurance mandatory here in Virginia. As an attorney focusing my practice on helping people hurt in car crashes and train wrecks for 20 years, I would not dream of practicing without liability insurance to cover my clients should anything go wrong in my representation. The article went on to explain that the lawyers in most states including North Carolina and West Virginia also do not make lawyers have this protection for themselves and the people they represent.

Evidently, about 8 percent of Virginia lawyers do not have any insurance coverage for professional errors they may make. It would be my guess that any lawyer foolish enough not to carry professional liability insurance may be exactly the kind of lawyer who is prone to having claims made against them for messing up a client’s case.

In my area of law involving accidents and wrongful death cases, there are many ways of harming a client’s case if you are not paying enough attention or do not know what you are doing. For example, the clearest error that can be made by a plaintiff side injury lawyer is to miss the statute of limitations. The statute of limitations is the time within which a claim must be brought to court or all rights are forever lost. Normally, there is a two-year period in Virginia to file suit for injuries caused by someone else’s negligence. Unfortunately, lawyers can and do miss the statute of limitations and have their clients’ cases thrown out for failing to avoid missing this fairly simple deadline.

The other type of common error by people who dabble in handling personal injury cases is to not know all of the sometimes complex insurance and other legal issues that effect what a person is entitled to when their vehicle has been hit by another car in Virginia. A lawyer who is not an expert in personal injury may not realize all of the sources of insurance coverage available or may otherwise cause a person hurt in an accident to get less than they should have.

If I was a client whose family member, whether son, daughter, wife, husband or parent, was hurt in a car accident, I would expect that the lawyer I hire to represent my loved one not only will pay attention and knows what they are doing, but has insurance to back them up for any mistake that might be made by them or their staff. Over the years, my law partners and I have been contacted numerous times by people whose cases were messed up by some prior lawyer and we find out that the old lawyer failed to provide this kind of insurance protection for their clients. As a consumer when you are trying to figure out who to hire for your personal injury case, it is probably a good idea to ask whether the lawyer has legal malpractice insurance coverage and in what amount. A clear quick answer indicating the lawyer has millions of dollars of liability insurance coverage will demonstrate that this is a lawyer and law firm who is used to handling significant personal injury cases with serious injuries like yours.

Originally posted at InjuryBoard by John Cooper

Personal Injury Or Death Caused By Drunk Driving/DUI/DWI in VA,WV,NC,SC

Rick Shapiro — Tue, 23 Dec 2008 11:32:20 GMT

I posted a series of articles on our law firm's home website, exploring Virginia (VA), West Virginia (WV) and North/South Carolina (NC/SC) personal injury or wrongful death car accident cases where the damage is caused by a drunk driver/drunk driving/DUI/DWI. One excerpt from the main article:

When our clients or their family members are injured (or killed) by acts of a drunk driver/drunk driving, there are numerous special circumstances that our personal injury lawyers will examine. Our goal in a DUI/DWI/drunk driving case is to find all applicable insurance recovery sources, and recover personal injury compensation for all types of losses, including medical bills, lost wages, permanent injuries, pain, suffering, scars and all other expenses that resulted from a DUI/DWI/alcohol or drug impaired car accident.

In drunk driving/DUI/DWI cases, we can sometimes bring a claim for punitive damages. This is “punishment” compensation that arises out of the grossly negligent or egregiously bad acts by a drunk driver.

To learn how alcohol or impaired driving evidence is properly utilized read the series of articles relating to VA, WV, NC, and SC drunk driving causing personal injuries.

Originally posted at InjuryBoard by Rick Shapiro

Boating fatalities and alcohol

John Cooper — Tue, 19 Jun 2007 11:44:13 GMT

Boating in Virginia (VA) and North Carolina (NC) waters is serious fun. Boating collisions often occur because boat operators are not paying sufficient attention in keeping a good look out for other boats. Like automobile accidents, boating wrecks typically occur because of operator error.

There are lots of things that can distract your attention. There are the natural factors, such as the sun, dehydration, and motion. Fatigue can set in as a result of these stressors. However, when you add alcohol to the mix, you really risk having a boating accident. One-third of the collisions that occur on the water involve alcohol. Given we all take drunk driving on the roads seriously, we also should consider the dangers of drunk boating as quite real. Since have a non drinking driver when you go out to the bar with your friends, you should do the same on your vessel.

Please do what you can to keep Hampton Roads' waters safe and fun when you go boating. Remember that in one year 100 people will die in boating accidents and another 4,000 will be injured. Most deaths and injuries did not have to happen and were the result of someone's not being careful enough. Please do what you can to not add to these numbers

For more information on this subject, please refer to our section on Wrongful Death.

Originally posted at InjuryBoard by John Cooper

What Is Wrongful Death?

John Cooper — Fri, 15 Jun 2007 16:19:08 GMT

A wrongful death claim is made by a family whose loved one has been killed by the negligence or intentional act of another person or company. It is very similar to a personal injury claim, but instead of the harm being a bodily injury, the harm is death.

The main difference between a personal injury case and a wrongful death case is the type of damages that can be sought against the at fault person. In a personal injury case, the attorney is seeking compensation for the person who was hurt for their medical expenses, their lost wages, their pain and suffering, and any permanent disability. In the wrongful death lawsuit, the lawyer is seeking money on behalf of the family for the family's grief, future loss of the loved one's care, guidance and companionship, as well as economic losses to the family such as future lost wages for those financially dependent on the person who died, funeral expenses and the value of services rendered to the family by the decedent. The focus of damages in a wrongful death case is on the harm to those left behind as a result of the unexpected loss of their family member.

Under Virginia (VA) law, the family member who has a right to sue for the wrongful death and who controls the litigation is called the personal representative. This person is the executor named in a will, if any, or the person who gets qualified by a Virginia circuit court as the administrator for the estate of someone who dies without a will. The beneficiaries who share the money damage award are determined by a Virginia state statute. This section from the Virginia (VA) Code sets forth which of the relatives are entitled to receive part of the compensation based on their loss, typically including family members like the spouse, children, parents, brothers and sisters as provided for in the wrongful death law. Ultimately, the court must approve of how the jury award or settlement is to be divided by the statutory beneficiaries.

Although personal injury cases and wrongful death cases have a lot in common, the wrongful death case is typically a higher dollar claim. This is primarily because of the seriousness of the loss of life, especially of a wage earner whom the family was dependent on in the future. Insurance companies understand that they will have to pay significant sums in the event of a valid wrongful death case. Wrongful death cases can arise in many different settings of negligence, including car wrecks, truck accidents, medical malpractice, products liability cases, boating or hunting accidents, as well as train and airplane crashes.

Originally posted at InjuryBoard by John Cooper