Legal Tips

Slip and Fall

Slip and fall or trip and fall are the generic terms for injuries that occur as a result of dangerous or hazardous conditions on someone else's property.

What make someone responsible for a slip and fall case?

Property owners are responsible for injuries that occur as a result of dangerous conditions on their property, which the owner created, knew about or should have known about. The hazard may be obvious (such as a broken stair) or hidden (like a hole under the carpet).

In general, an owner will be considered to have knowledge of a dangerous or hazardous condition if it is permanent. In case of temporary conditions, the length of time that the condition existed before the accident occurred has legal significance. For example, the discoloration of a piece of fruit on the floor, in the produce department of a grocery store, may be used to prove the length of time that the hazardous condition (piece of fruit) was on the floor.

What should someone do after they slip and fall?

Inspect the area where you fell. Attempt to understand what caused you to fall. If you are unable to explain what caused you to fall will usually mean that you do not have a case. If there are witnesses, be sure to write down their name and the address. If the incident occurred in a business, be sure to speak with the manager on duty. Have that manager fill out an accident report and be sure to have a copy made for your records. If an employee or a supervisor suggests, or admits, that this type of incident has occurred in the past, make a note of that and write that persons name on the copy of your report. Also, be sure to make note of the date that the accident on occurred.

You should also be aware that what caused you to fall may be repaired after your incident therefore you should keep record of the condition via picture or video.

What should I do about my Injuries resulting from my fall?

Get Medical Help:

When needed, it is important that you receive medical assistance immediately. If you think you may be OK but begin to experience pain or discomfort, follow up with medical care. There are no prizes for being a hero. It will be quite difficult to assert a claim for injuries and pain and suffering without proper medical documentation. Since the insurance for the party at fault may pay your medical bills, you are not restricted by your health plans list of doctors.

Days following the accident you may begin to experience symptoms that were not present immediately after the accident. Symptoms may arise even following a minor slip and fall. Some of the common symptoms are:

  • Headaches
  • Neck and back stiffness and pain

Most people who are suffering from "soft tissue" injuries seem to find that some form of treatment or physical therapy works best. Clients often seek care from a Chiropractor or Physical Therapist.

Clients suffering from more serious injuries are usually seen in the emergency room. Often times persons will next be seen by an Orthopedic surgeon, Neurosurgeon or a Neurologist. However, each case and injury is unique and may need other specialist to evaluate and treat your condition. You may also want to consider getting a second opinion.

How long do I have to file a claim?

Every state has a "statute of limitations" which limits the time you have to act. Some states require you to give notice to the landowners within 30-90 days of the incident. Also, there may be certain limitations or immunities if the landowner is a governmental agency or your employer. Be sure to check with an attorney in the state where you fell for the proper "statute of limitations" and any other issues you need addressed to protect your claim.

Medical Malpractice

Medical malpractice claims are among the most difficult and expensive of all types of personal injury cases. Almost all malpractice claims against health care providers require expert testimony by physicians, nurses or other professionals in the same specialty as the defendant. There are many important issues that are taken into consideration in a medical malpractice case.

Do I have a case?
How long do I have to decide whether to file a lawsuit?
Can the hospital be sued if the doctor is an independent contractor at the hospital?
What is needed to file a malpractice case?
Do I have to pay back my health, workers’ compensation and disability insurance out of the settlement of my medical malpractice case?
Are doctors who work for a public hospital protected by governmental immunities?
What is "informed consent"?
Do I have a case?

There are primarily two things that need to be proven in a medical malpractice case:

That the health care provider was negligent. This means that the provider deviated from the normal standard of care for that particular type of medical provider, which includes hospitals, medical doctors, osteopaths, chiropractors, and most other types of health care professionals.

That the damages were "proximately" caused by the malpractice. Unlike a simple accident case, in which the accident causes the injuries, most plaintiffs are already injured or ill at the time they are victimized by medical malpractice. In addition, causation must be proved to a reasonable degree of medical probability, meaning that simply the possibility or conjecture of malpractice is generally not sufficient. It must be shown that as a result of the alleged malpractice, the patient sustained some injury or aggravation of an existing condition. For example, if a patient visits the doctor for an annual checkup and is deemed healthy, but a month later is found to have terminal liver cancer, the patient doesn’t have a malpractice case because the doctor’s negligence didn’t result in the patient’s injury or condition. It was there anyway, and detection a month earlier probably would not have made a difference.

How long do I have to decide whether to file a lawsuit?

Any action for personal injury or death against a physician or hospital must be filed within two years from the date the claimant (the person named in the lawsuit) knew or reasonably should have known of the injury.

In no instance may a claimant bring an action more than four years after the date on which the alleged act or omission occurred.
If the claimant was younger than 8 years old when the cause of action occurred, the period for filing suit is eight years from the date of the alleged negligence. In no event may a lawsuit be filed after the minor claimant's 22nd birthday.

If the claimant is mentally incompetent, the period of limitations does not begin until the disability is removed.
Wrongful death actions are also governed by a two-year statute of limitations that begins at the time of death.

There can be no action for wrongful death if the malpractice statute of limitations on the deceased’s injury had expired before he died.
The Act reduces the limitations period in actions brought against a local entity or its employees to one year from the date the injury was received or the cause of action occurred.

Can the hospital be sued if the doctor is an independent contractor at the hospital?

A hospital is liable for the acts of an independent contractor physician if:

The hospital publicly withholds that the physician is its agent or employee;
The hospital acquiesces in the physician's negligent conduct; and
The plaintiff reasonably relied upon the acts of the hospital.
In Gilbert v. Sycamore Municipal Hospital, 156 I11. 2d 511, 622 N.E.2d 788 (1993, the court held that the element of justifiable reliance is satisfied if the plaintiff relies on the hospital, rather than a specific physician, to provide complete emergency care.

What is needed to file a malpractice case?

Under Illinois law the injured person's attorney is required to attach to the complaint an affidavit from a medical professional who practices in the same area as the medical provider being sued.

The injured person must have consulted with an expert who practiced or taught within the last six years in the same area of medicine that is at issue;
The expert must be qualified by experience or demonstrated competence in the subject of the case; and
The expert must state in a written report, after a review of the medical record and other relevant material, that there is a reasonable and meritorious cause for the filing of such action.

Do I have to pay back my health, workers’ compensation and disability insurance out of the settlement of my medical malpractice case?

Illinois has adopted a "modified collateral source rule" applicable to medical malpractice cases only. If the losing medical provider applies within 30 days after judgment, the award against the medical provider will be reduced by the following amounts:

50% of the lost wages or disability income paid or payable to the claimant in relation to the injury by another person, corporation, or insurance company;
100% of the medical, hospital, and nursing charges paid or payable to the claimant in relation to the injury by another person, corporation, or insurance company
The reduction of a claimant's recovery by collateral source payments, however, is limited by the following rules:
There can be no reduction for amounts paid by person with a right of subrogation against the judgment
The judgment may not reduced by more than 50%
The damages awarded must then be increased by insurance premiums or direct cost paid by the claimant
There is no negligent act or omission of the defendant

Are doctors who work for a public hospital protected by governmental immunities?

Medical negligence claims against physicians employed at state medical facilities are not considered to arise from their employment, but from their individual duties to their patients. Such actions are not subject to governmental immunity and may be brought in the Circuit Court.

The Act reduces the limitations period in actions brought against a local entity or its employees to one year from the date the injury was received or the cause of action accrued.

What is "informed consent"?

The doctrine of informed consent is a unique area of malpractice litigation. It does not follow strict negligence principles, in that the plaintiff need not show that the health care provider was negligent in failing to obtain his/her consent to treatment. The law grants to the patient the right to choose whether to obtain medical treatment and requires that a health care practitioner provide the patient with accurate information as to diagnosis and treatment. Failure to provide that information is a violation of the patient’s rights and can substantiate a malpractice claim.

Automobile Accidents

Here are some tips to keep in mind if you’ve been in an accident.

Make a police report
Get medical help
Paying your medical bills
Repairing your car
Renting a car
Giving a statement to the party-at-fault’s insurance
Contact your insurance company
Lost wages
Do I need an attorney?
What settlement can I expect?
Make a police report

Accident information should be documented for the insurance company and your attorney. If the accident involves a hit-and-run driver, most policies require a police report. Additionally, without a police report it can be difficult later to identify the responsible parties, witnesses, date of accident and locations.

Get medical help:

When needed, it is important that you and your passenger receive medical assistance immediately. If you think you may be OK but begin to experience pain or discomfort, follow up with medical care. It will be quite difficult to assert a claim for injuries and pain and suffering without proper medical documentation.

Since the insurance for the party-at-fault is responsible for paying pay your medical bills, you are not restricted by your health plan’s list of doctors.

In the days following the accident you may begin to experience symptoms that were not present immediately after the accident. Even after a low-impact collision, symptoms such as headaches or neck and back stiffness and pain may arise.

Most people who suffer "soft tissue" injuries seem to find that some form of treatment or physical therapy works best. Clients often seek care from a chiropractor or physical therapist.

Clients who are more seriously injured are usually taken to the emergency room and often are seen by an orthopedic surgeon, neurosurgeon or neurologist. However, each case and injury is unique, and it may be necessary for other specialists to evaluate and treat your condition. You may also want to consider getting a second opinion.

Paying your medical bills:

When available, it is best to use your own health insurance to pay your bills. Most health insurance companies have discount arrangements with doctors and hospitals, so at the end of your case you will be reimbursing your insurance for a smaller amount.

The party-at-fault is responsible for your medical bills and pain and suffering at the time of settlement. If the person who causes the accident does not have insurance, your own automobile insurance will also pay for your pain and suffering under uninsured motorist coverage. You can also have your own auto insurance company pay your medical bills, up to your limits of medical pay coverage, regardless of fault.

Repairing your car:

You will normally have two options for payment of your car repairs. Below are some of the issues involved in each:

Question Your Own Insurance Party-at-Fault Insurance
Do I have to pay a deductible?
Yes No
Will the insurance company pay 100% of the repair bill?
Yes Not if they feel you were partially at fault
Which way is quicker to get the repairs made?
Depends on quality of insurance Depends on quality of insurance
Do I have to go to their body shop
Depends on what your policy reads No
What type of coverage pays for my repairs?
Collision coverage Property damage
Does it matter who is at fault?
No Yes. They will only make payments if their insured was at fault

Renting a car:

If you have rental car coverage, you may rent a car and have it paid by your own insurance. Be sure to talk to your agent first to find out the daily allowance and any other restrictions. If the other driver was at fault, you have the right to rent a car while your car is being repaired or replaced. In this case, the liable party’s insurance is responsible for payment. However, payment may not occur until a future settlement of all claims.

Giving a statement to the party-at-fault’s insurance:

As a general rule, do not give a statement to the insurance company representing the party-at-fault unless your attorney is present. That insurance company is responsible for damages to your car, your medical bills and any lost wages, as well as pain and suffering. If your case isn’t settled and a lawsuit is filed, the insurance company will use your statement during the taking of your deposition for purposes of impeachment.

Contact your insurance company:

You must notify your insurance company that you were in an accident. Normally, you have 30 days to make this notification. If you fail to notify your insurance within the required time period they have the right to refuse to pay for any of your damages or to defend you if the other party were to sue you later. Also, your insurance company has the right to obtain a statement of facts from you.

Lost wages:

The party-at-fault is responsible for your loss of income caused by the accident. This is in addition to your pain and suffering and any other losses that you may have sustained. However, missing work must be directly related to the injury and/or accident. If the party-at-fault has no insurance, then your own insurance will pay for your loss of income through uninsured motorist coverage.

Do I need an attorney?:

Insurance companies will try to convince you that you do not need an attorney, and that they will be fair with you. A study by the Insurance Research Council found that persons represented by an attorney received settlements on average of over $14,000, while persons without an attorney received settlements of under $4,000.

Even though the law does not require that you have an attorney, handling a case on your own is quite risky, since you probably lack the experience in evaluating the nature and extent of your injuries and the amount of settlement you should receive. It is not uncommon for persons representing themselves to have a "figure" in their mind as to what they feel their case is worth. For example, you may want $15,000 for your injury, and if the insurance company offered you $20,000 you would accept. Unfortunately your case may be worth $65,000, and you would not know this without proper legal representation.

If you do decide to hire an attorney, it is recommended that you seek an attorney that concentrates in personal injury claims.

What settlement can I expect?:

Your settlement with the insurance company should include payment for pain and suffering, lost wages, property damage, all medical bills (present and future), and any other losses you may have suffered from this accident. The amount of pain and suffering is unique to each case and usually will be the largest portion of your claim.

Steps You Should Take After Car or Motorcycle Accidents Have Occurred

The moments immediately after car accidents and motorcycle accidents require clear, rational thinking to protect yourself and your personal property. There are several steps you can take to increase your chances of financial recovery and the amount of that recovery in your car accident and motorcycle accident case, even before you meet with one of our attorneys. Such steps include:

  1. Insist that a report for car or motorcycle accidents be filed with the state or local police.
  2. Document as much as you can about the car or motorcycle accident or injury itself. Our attorneys will need to know every detail about your injuries and any other losses (such as wages) you have suffered as a result of the accident and any conversation you had with anyone involved in the accident.
  3. Talk to no one about the car or motorcycle accident or injuries other than your doctor or attorney, especially not an insurance adjuster. Our car accident and motorcycle accident attorneys in Miami, Florida will be happy to assist you.
  4. Photograph the accident scene, including all vehicles involved (before repairing) and any visible injuries.
  5. Take the names of anyone who witnessed the car or motorcycle accident and who might be able to help you prove your case.
  6. Seek medical attention and tell your physician or surgeon exactly how the injury occurred and describe all symptoms and complaints. Be sure to report memory problems, confusion or disorientation, however minor these things may seem at the time.