Regulating Medical Malpractice Cases

Posted by & filed under Medical Malpractice.

Medical malpractice, unfortunately, happens. Doctors are overworked, tired or simply negligent, and they make mistakes. When that happens, their patients are able to file suit alleging medical malpractice, and possibly be awarded compensation to help cover bills and living expenses that might not have been necessary if the mistake had not been made. However, while the need for justice is important, it cannot be open season on medical professionals. There are two major ways that states regulate potentially frivolous medical malpractice claims: damage caps and statutes of limitations. Read more on “Regulating Medical Malpractice Cases” »

Pedestrian Accidents in Charleston

Posted by & filed under Auto Accidents.

Walking or biking in Charleston can be a very pleasant experience. The weather is normally mild, and there are some very comfortable places to walk within the city. However, sometimes someone else’s carelessness can upend your good time and the rest of your life all at once. Pedestrian accidents can be life-changing, and if it happens to you, there will be a specific procedure you need to follow in order to recover.

Accident Statistics in South Carolina

The most recent data available for South Carolina’s accident figures is not ideal. National Highway Traffic Safety Administration (NHTSA) statistics show that according to data released in 2012, South Carolina had the fourth worst pedestrian fatality rate in the nation, with percentages noticeably above the national average (1.94 deaths per 100,000 population, compared to 1.38 per 100,000). One wonders why the rate continues to remain so uncomfortably high – the answer, if one examines state data, is very often distracted driving. Things like disregarding signals, driving too fast (or too fast for the weather conditions at the time) and being overly fatigued make up the lion’s share of reasons drivers gave for crashing.

Time and place also make a difference. According to state data, most crashes in recent years have occurred on the state’s secondary roads, not on major freeways. Also, more than 60% of fatal crashes occurred between the hours of 3pm and 3am. The reason these statistics are important is because if you have an accident at that time or place, police and other accident personnel are more accustomed to the likelihood of having to give evidence or statements to aid in a lawsuit.

Pedestrian & Driver Liability

If you are hit by a car, as a pedestrian you are far more likely to suffer severe injury than those in car, as one might expect. However, pedestrians do have responsibilities to ensure that they do not contribute to accidents in their own right. In South Carolina, pedestrians are required to walk in the right half of crosswalks where available, and yield to motorists where no crosswalks exist. Motorists must observe all signs and traffic laws.

If someone breaks a law, that is strong evidence that they may be liable for negligence, though it is not necessary for someone to break the law for a plaintiff to recover. Negligence is the injury to a person due to the wanton or reckless conduct of another, and it has four parts that must be proven. The defendant must owe a duty of care to the plaintiff, as motorists do to pedestrians and vice-versa. That duty must have been breached. The breach must have been the direct cause of the harm done to the plaintiff, and the harm must be significant – that is, it must substantially affect your life, rather than being a minor inconvenience. If you sustain physical injuries after being hit by a car, you will usually be able to show significant harm.

Contact An Auto Accident Attorney

Pedestrians have a right to be safe on the road, just as much as motorists. If you have been injured in a pedestrian accident, we may be able to help you get what you are owed. The North Charleston auto accident attorneys at Callihan & Syracuse have years of experience in this type of matter, and we are ready, willing and able to put our knowledge to work for you. Contact our office today for a free initial consultation.

Hit By An Uninsured Driver? Your Options

Posted by & filed under Auto Accidents.

Under law, automobile insurance is required for every driver on South Carolina roads. However, recent data indicates that as many as 7.7% of drivers in the state do not have insurance, or are underinsured. If you are in an accident and are hit by someone who does not have sufficient coverage, you may be stuck with a larger portion of the bills than you had ever thought possible.

South Carolina Insurance Requirements

How much auto insurance is required will vary between states. South Carolina’s requirements are actually on the higher end of the spectrum, mandating 25/50/25 minimums. In other words, South Carolina drivers must carry insurance valued at least at $25,000 for bodily injury (per person), $50,000 per accident and $25,000 for property damage. While this may sound like a lot, in reality, many accidents will burn through those limits long before the expenses are paid. This can be extremely problematic.

If a driver who hits you is uninsured, the outcome will be best if you have previously purchased uninsured and/or underinsured motorist (UM/UIM) coverage from your own insurance company. UM coverage is an addendum to your standard auto insurance policy, and it will pay out up to the limits of your auto policy, minus any amount recovered from the other driver’s insurance company. While not all states require UM coverage, South Carolina does. Underinsured motorist coverage is not required, however.

Sue or File?

If you have UM coverage, as you are required to, you will have two options after an accident with an uninsured driver. You can either bring suit against the driver for personal injuries, or you can file a claim with your insurance company to try and collect on your UM coverage.

Bringing suit is frankly a difficult option, most of the time. Most often, the reason a motorist is uninsured is because they lack the assets to be able to afford coverage. Thus, there would be little to no money to take in a lawsuit. The only way that it would likely be worth it to sue a motorist with no insurance would be if there is reason to believe they have hidden assets – for example, a share of a property that cannot be converted into liquid cash, but still has some equity. If a credit check shows that the driver has any assets, then you may be able to move forward.

The other choice is to try to collect on your uninsured motorist coverage, which is what most people in this situation do. Most of the time, a UM claim will proceed along similar lines to a standard auto insurance claim, except that you are applying to your own insurance company instead of the other driver’s. The only thing you should be aware of is that if you and the insurer cannot agree on an appropriate settlement sum – which can be anywhere from nothing to the limit of your coverage – you are not permitted to bring suit against the insurer. Instead, you will likely have to go to binding arbitration, which is less transparent and usually slanted more in favor of the insurer.

Get Help From An Experienced Attorney

Car accidents are traumatic enough; trying to negotiate with insurers or get money from an uninsured driver is even worse. If you are in a situation like this, the best thing you can do is engage a good car accident attorney. Callihan & Syracuse in North Charleston handles exclusively personal injury matters, with most of them being auto accidents, so we are experienced and knowledgeable about what you are dealing with. Contact our office for a free consultation today.

 

 

Driving in Winter Weather

Posted by & filed under Auto Accidents.

Most of the time, South Carolina’s climate is temperate, even warm. However, weather has been more varied recently than it has in some time, and some are finding it difficult to deal with. Traffic accidents as a result of weather have increased noticeably, especially since the Halloween storm late last year that left noticeable snow on the ground. It is important that drivers know how to handle this kind of weather – if you do not, you may wind up being liable for someone else’s injuries.

Suing A City – Sovereign Immunity

The most common occasion that bad weather might be a discussed factor in your car accident is in dealing with the city or municipality that owns those roads. Usually, cities and towns control road maintenance, and it is these entities that you will be dealing with if you believe that poor road conditions caused your accident. To hold them liable, you as a plaintiff must prove that they (or their contractor) exhibited negligence in maintaining a safe roadway, or conversely, failed to warn drivers of potential hazards.

The problem is that many municipal entities are immune from suit. The doctrine of sovereign immunity mandates that the government cannot be sued by individuals. In places where sovereign immunity applies, this would apply to state contractors in almost all cases, leaving many injured drivers out of luck. This doctrine used to be absolute under the Eleventh Amendment, but its outer limits have been steadily waived by the states themselves.

South Carolina, specifically, has waived a large portion of its sovereign immunity as a state. S.C. Code Ann. Sec. 15-78-20(a) states that suits filed against the state after July 1, 1986 will not be subject to sovereign immunity. However, that ruling applies only to the state. Towns and other municipalities within the state may have different rules.

Potential Insurance Issues

The other time when bad weather in an accident may be relevant is when talking to your insurance company (or the other driver’s, if involved in a two-car accident). It is important to be aware that most insurance companies will not ascribe an accident solely to bad weather, unless it is extremely unusual and remarkable. It will be a factor, but not the only factor, and that can prove a difficult minefield to navigate for the driver who genuinely believes they are not at fault.

However, it is possible to link some of the factors in an accident to the weather – in other words, the weather may not be the actual cause of an accident, but it may be a proximate cause. For example, if a driver claims they skidded on slippery roads, that may be so, but it might not have caused an accident if that driver had not been following too closely. In South Carolina, following too closely is a traffic offense, and a good attorney may be able to argue that if the driver is found guilty of that offense, it constitutes negligence per se. Negligence per se is when the breaking of a statute is in itself a demonstration of negligence, so the plaintiff does not have to prove it.

Contact A Car Accident Attorney

Driving gets even more dangerous in winter, regardless of whether or not there is snow on the road. If something happens, you need a good attorney on your side. The experienced car accident professionals at Callihan & Syracuse know how to handle these situations, and will work hard for you. Contact our North Charleston office for a free consultation.

 

Types of Damages Obtainable in Personal Injury Suits

Posted by & filed under Personal Injury.

When you are involved in a personal injury lawsuit, you are entitled to financial compensation if you win. However, the amount of compensation you are entitled cannot be in one lump sum. Different amounts earmarked for different losses must be requested, depending on the facts of your case. Your attorney should explain what damages you can and cannot request based on what you have been through.

The main category of damages in civil court is referred to as compensatory damages. These are defined as any sum of money awarded to indemnify a plaintiff (if they win their case) against losses incurred by the wrongful conduct of another person. Within this category, regardless of its name, there are two subcategories. Economic damages are damages that can be calculated from documents and records; non-economic damages are the intangibles that must be assessed as estimates.

Economic Damages

Economic damages will make up the bulk of any award granted by a jury. In most cases, economic damages are a fairly simple matter for a jury to grasp, given their tangible nature. Sometimes, future expenses can be classified as economic damages even though they are necessarily speculative, but this is because they are still estimated from actual figures. In some states, there are restrictions on economic damage amounts, but in South Carolina, no such restriction currently exists.

Some examples of economic damages are:

  • Medical bills (though, if a plaintiff receives compensation for these, they may have to turn over this part of an award to their insurer);
  • Lost wages;
  • Future medical care costs; and
  • Accessibility needs (such as house renovations).

Non-Economic Damages

The other category is non-economic damages, and it encompasses everything that cannot be accurately quantified from records. This category of damages is more commonly regulated, given its intangible and subjective nature; most states have caps on non-economic damages, lest juries award amounts that are impossible to enforce. Currently, South Carolina only has a non-economic damage cap on medical malpractice damages, not on those incurred in general personal injury cases.

Some examples of non-economic damages are:

  • Pain and suffering;
  • Loss of consortium (loss of the benefits of a healthy marital relationship);
  • Lost earning capacity; and
  • Emotional distress.

It is important to distinguish between economic, non-economic, and punitive damages. Punitive damages are assessed only in cases where the defendant’s conduct has been proven to be so negligent or reckless as to constitute malice. They are neither economic nor non-economic; the latter types of damages remedy a loss, while punitive damages are exclusively assessed to punish egregious conduct. There is a cap on punitive damages in South Carolina, however; they may not exceed three times the compensatory damage amount (in other words, the total of the economic and non-economic damages cannot be greater than one-third of the punitive award).

A Personal Injury Attorney Can Help

If you engage the services of a qualified personal injury attorney, you may have a greater chance at a larger award than if you attempted to go it alone. Callihan & Syracuse has handled countless personal injury cases, and our professionals are happy to assist you with yours. Contact our North Charleston office today for a free initial consultation.

Motorcycle Accidents in South Carolina

Posted by & filed under Auto Accidents.

South Carolina boasts a large proportion of motorcycle riders among those who use its roads. While most people are safe drivers, motorcyclists do have a disproportionate rate of injury and fatality if a crash occurs. If you are hit by a car or another motorcyclist, you may be able to get compensation, depending on the facts of the situation. However, there are significant obstacles to overcome before you can triumph in court.

Motorcycle Accident Statistics

The South Carolina Department of Public Safety’s most recent data shows 1,819 motorcycle crashes in 2010. That is approximately 1% of all vehicle crashes, but the number of fatalities, 81, is roughly 10% of the state’s deaths. Motorcyclists aged 19 to 24 were the demographic with the highest percentage of emergency room visits per 100,000 (128) and those aged 45 to 52 had the highest rate of hospitalization. There are a number of reasons for this disproportionate impact.

The main reason is that motorcycles are simply not as large as cars. Drivers may not see motorcyclists, either because of their speed or small size. Motorcyclists may also wind up in a car’s blind spot, either by chance or due to lane splitting. Lane splitting is when a motorcyclist weaves in between lanes of traffic, and while it is illegal in South Carolina, it still occurs.

Another reason is required protection, or lack thereof. There are no passenger restrictions in terms of age, and South Carolina does have stringent helmet laws, but only for those 21 and under. It has been proven that helmet laws reduce fatalities on the road, but there is evidence to suggest that these laws may prevent some injuries while causing others. Helmeted motorcyclists may take more chances on the roads, believing themselves protected.

Juror Bias

If you are injured in an accident involving a car, you may have an uphill battle even if the facts are on your side. Routinely, jurors and even the police may exhibit evidence of bias against motorcyclists. Pop culture depictions of motorcyclists as gang members and rebels leads to inferences of negligence, or even dangerousness, which can be detrimental to your case. It is possible for a jury to find against you simply because they distrust motorcyclists.

If you know the common arguments, it is far easier to defeat them. For example, many people characterize motorcyclists as dangerous or reckless because motorcycles are routinely very loud – they associate the unpleasant sound with an unpleasant person. However, this is a completely inappropriate basis on which to find against an accident victim in court. The facts are always your best weapon – medical records, photographs and statements from unimpeachable witnesses to attest to your character are integral. Character evidence should not be necessary, but better to prepare for something that may never come than to be surprised.

A Motorcycle Accident Attorney Can Help

If you have been injured by an accident with a car, sometimes a professional is the difference between getting compensation and being left with nothing. The experienced accident attorneys at Callihan & Syracuse will fight for you. We have a long history of excellence. Contact us for a free consultation at our Charleston office today.

Unusual Wrongful Death Claims

Posted by & filed under Medical Malpractice.

Wrongful death is a civil action brought against someone when it is alleged that their negligence or recklessness caused the death of someone else, even if they did not physically murder the person. Usually these claims stem from medical malpractice or vehicle accident, but sometimes they can result from unusual situations. It is important to know the components of a wrongful death suit, so you can distinguish when the cause of action applies and when it does not.

Inmate Deaths

Even though they have been incarcerated, inmates still have rights. They are protected under the Eighth Amendment to the Constitution, like all of us, against cruel and unusual punishment. If an inmate suffers cruel and unusual punishment, that can amount to murder, depending on the fact pattern. However, cases in which inmates wrongfully die have occurred due to someone’s (usually a guard’s) recklessness or negligence.

South Carolina has faced some sobering truths in recent years, including the frightening treatment of mentally ill inmates. In January 2014, Judge Michael Baxley ruled that South Carolina prison officials were culpable after a long trend of abuse and neglectful behavior by corrections officers, including refusing medications to inmates and disproportionate use of solitary confinement. Still, there has been very little indication that any manner of reform has come to the state’s prison system after Judge Baxley’s excoriation of these practices.

Sometimes inmate deaths are prosecuted under the rubric of prison abuse, but when suits are filed by surviving family members or a person’s estate, they are usually for wrongful death. They routinely occur in all states, with the most common cause being the withholding or alleged withholding of medical care. In April 2014, the fiancee of an inmate who died of an alleged heart attack at the Chester County jail brought a wrongful death suit against jail staff for failure to treat properly. As of this writing nothing has yet occurred of substance, but the suit has not been dropped.

Suicide

It is fairly rare, but sometimes, a wrongful death claim is brought by the relatives of a suicide victim, While sometimes no one but the decedent is directly responsible for their passing, at times it can be alleged that another person ought to have taken steps to intervene, and their failure to do so was negligent.

The most common instances of this allegation are against medical professionals and school officials, in the case of a student. Medical professionals in particular may face allegations of negligence or malpractice – if they failed to notice suicidal tendencies, or neglected to pursue any particular avenue of treatment, it may be deemed to be actionable. Suicide wrongful death actions are based primarily in equity, meaning that the ultimate goal of such a suit is not necessarily compensation, but rather ensuring a specific non-tangible outcome – in this case, ensuring that a medical professional’s neglect ought not to cost any more lives in the future.

Contact A Wrongful Death Professional

If your family has experienced the wrongful death of a loved one in any manner, it can be debilitating. A wrongful death attorney can help your family receive compensation for what you have gone through. The attorneys at Callihan & Syracuse have years of experience that we will put to work for you. Contact us today at our North Charleston office for an initial consultation.

The Aftermath of a DUI

Posted by & filed under Auto Accidents.

Driving under the influence (DUI) is one of the United States’ most pervasive crimes. Over ten thousand people were killed in 2012 as a result of someone driving drunk. Yet, despite the prevalence of drunk driving-related fatalities on our roads, the correct way to handle an accident and its aftermath is not often discussed. It should be, though, since after a crash, the family of people injured or killed will be lost and confused.

Immediately Following An Accident

The most important thing you should do after being hit by a DUI driver is to seek medical help. Even if you think you are not unduly injured, you may be incorrect – shock is incredibly common after serious injury, and it can negate some of the pain you may otherwise feel.

If you are not the injured person, your first priority is to call emergency services and the police. Your second is to keep everyone calm, but especially to ensure that no one makes any statement that could be misconstrued as guilt or fault. If someone admits their guilt to you, be aware that it may fall under a hearsay exception (which would make it inadmissible in court) or otherwise be deemed insufficient proof of fault. There is almost always more to obtaining compensation for your injuries than a simple statement.

It is also a good idea, if possible, to document the scene as much as possible. Only after everyone has been treated for any injuries should you think about hiring an attorney, and when you do, the attorney will need as much information as can be provided to them in order to build a case.

After the Dust Has Settled

After your injuries have been brought under control by a medical professional, take time to look for an attorney and deal with your insurance company. It is easier than you might think to find an attorney – most personal injury practitioners work on a contingency basis, meaning that they are paid a set fee if they win the case, and if they lose, no fee is paid.

When a regular car accident occurs, with no evidence of substances being involved, a personal injury claim is most often brought on a basis of alleged negligence – that is, arguing that the driver who hit you failed to exercise due care in the operation of their vehicle, and their actions were the direct cause of your injuries. In a drunk driving accident, however, the basis for a claim is different. Drunk driving is a violation of South Carolina law, and in past court cases, the South Carolina courts have held that the “violation of a statute constitutes negligence per se.” Negligence per se means that unlike in a standard negligence case, the plaintiff does not have to prove certain elements of their case – by the mere fact that the defendant broke the law, their negligence will be stipulated. It makes it much easier for a plaintiff to prevail in court.

A Personal Injury Attorney Can Help

If you have been the victim of a drunk driver, we can help. Callihan & Syracuse has practitioners with years of experience who are ready to assist. Contact our North Charleston office today for an initial consultation.

Dog Bite Injuries in South Carolina

Posted by & filed under Personal Injury.

In most states, there is settled dog bite law. However, when the animal is not a dog, but something else, there can sometimes be ambiguities. In fact, even when the animal in question is a dog there can be ambiguities. If you have had the misfortune of a dog attacking you, it is important to know what can and cannot be done in your state.

The South Carolina Statute

The South Carolina dog bite statute is somewhat unusual in that it lays out a defense in words of one syllable within the statute itself. It states plainly in Section 47-3-110 of the South Carolina Statutes that “if a person provokes a dog into attacking him, then the owner of the dog is not liable.” This is not the case in most states; usually, any kind of affirmative defense must be proved in court. There are other defenses, most notably trespass. If you are in a private place unlawfully, the owner of any animal will not be held liable for an attack.

That point notwithstanding, the rest of the statute is fairly straightforward. South Carolina subscribes to the theory of strict liability when it comes to animal bites, unlike in some states where you might get “one free bite” before you are held liable for your animal’s actions. States that adhere to the strict liability theory hold that animals, like dogs, can do so much damage to people that they should all be seen as possessing the potential to injure, even if their temperament does not lend itself to that belief.

The Dangerous Animal Law

An interesting wrinkle in South Carolina law is the existence of a separate ‘dangerous animal’ law. Dangerous animals are classified as members of the “canine or feline family” that the owner knows or should have known have a predilection to attack unprovoked.

One important thing to remember is that unlike with most regular dog bite statutes, the location of the attack is irrelevant. If your animal attacks and injures someone, and causes bodily injury, you may be held liable. Another pivotal point is that the statute expressly excludes agricultural animals from the definition of ‘dangerous.’ This is not always so; in other states, animals like cows or goats (which are perfectly capable of causing injury to humans) are evaluated on a case-by-case basis rather than being held as a group not to be dangerous.

Some cases have also raised the question of fighting dogs. The statute holds that fighting dogs are classified per se as dangerous, but it also states that animals will not be held to be dangerous solely due to their breed or species. This has eased the minds of some dog owners – historically, breeds such as pit bulls and rottweilers have been regulated more strictly than other breeds solely because of their popularity as fighting dogs. Keeping animals for the sole purpose of training them to attack other animals or humans is prohibited by Sec. 47-3-740.

Find a Dog Bite Attorney for Your Case

If you have been attacked by a dog or other animal, you likely need help to get your life back in order. The attorneys at Callihan & Syracuse are here to help, and will do our best to get you the compensation you are owed. Contact our North Charleston office today for a free consultation.

Workers’ Compensation Guide: When It’s Not The Remedy

Posted by & filed under Workers' Comp.

When you are injured on the job, your normal instinct may be to apply for workers’ compensation. However, sometimes that is not the appropriate remedy. Occasionally, the fault may lay with a third party, and thus workers’ compensation would not cover your injuries. There are also occasions in which you are able to sue your employer outside of the workers’ compensation system. Knowing your rights is important, as the statute of limitations on certain injuries will elapse very quickly.

Third-Party Claims

The most common injury sustained on the job for which the employer is not liable arises from third-party claims. This happens when an employee is injured in the performance of his or her job by a third party – that is, someone who is not a co-worker or affiliated with the employer. For example, imagine that you are a computer technician driving to a sales call, and your car is struck by another car. In this situation you are engaged in performing your work duties, but your employer did not cause your injury in any way. You may sue the driver who hit you under a third-party claim.

South Carolina law states that depending on the situation, an injured employee may collect workers’ compensation and bring suit against a third party if injured while in the performance of their duties. However, the law makes clear that this right only applies if action against the third party is begun less than one year after your insurance carrier has either paid your claim or paid out an award given by an appropriate court. If you have not pursued this right, then the right to sue passes to your insurance carrier, who can pursue the claim entirely on their own. The law provides that your insurance carrier, if the claim is assigned to them, may pursue the matter with the third party until the entire amount owed is repaid.

Third party claims can sometimes offer more benefits than workers’ compensation, and, as such, they are sometimes brought on a less than solid foundation, hoping to get lucky. It is emphatically not in a client’s best interest to bring a shaky claim to court; the judge will likely throw it out with prejudice.

Intentional or Egregious Employer Conduct

In rare situations, an employer will commit an egregiously negligent, malicious or intentional act. The case of Peay v. U.S. Silica Co., 313 S.C. 91 (1993) states clearly that “it is well settled that a common law cause of action is not barred by section 42-1-540 [the section of South Carolina law banning individual suits by employees against an employer] if the employer acted with a deliberate or specific intent to injure the employee.” Intentional conduct by an employer serves as an exception to the exclusive remedy provision. In other words, the law states that workers’ compensation is the appropriate remedy for accidental injuries, to the exclusion of all else – hence the “exclusive remedy” language. However, if an employer intentionally or with wanton recklessness injures an employee, the injury is not an accident.

Know Your Rights Before You Sue

If you bring suit and it has no merit, it can have long-term consequences. An attorney can help clarify when a suit is appropriate and when workers’ compensation is the best choice for you to be made whole. The personal injury attorneys at Callihan & Syracuse have a long history in this area of law, and we will put our knowledge to work for you. Contact our North Charleston office today for an initial consultation.