Personal Injury | Medical Malpractice | Professional Negligence | Bankruptcy

Caps on Personal Injury Damages

I recently read an article on findlaw.com entitled “How Do Damage Caps Work?” which discusses the various legislative attempts across the nation to place a cap on damages in certain noneconomic losses that result from a personal injury.

First, let me point out the difference between economic and noneconomic damages. Economic damages can be measured in dollars and cents. For instance, if a person is injured through the fault of another and incurs $20,000 in medical expenses, that $20,000 is a portion of the victim’s economic damages. If a person’s injury requires treatment in the future, then a calculation can be made for future medical expenses likely to be incurred. Such future medical expenses would also be part of the economic loss. If the person’s injury is such that the person has lost work and may experience a future loss of earning capacity, the time lost from work as well as the loss of future earning capacity are also economic damages.

At trial, a plaintiff may present a sum for medical expenses (already incurred and to be incurred) and a sum for lost income and loss of future earning capacity. When a lawyer asks the jury to award the client an amount for these types of losses, they are the economic losses.

Noneconomic damages, on the other hand, are unique and personal to each individual. While noneconomic damages are often lumped under the heading “pain and suffering”, it includes consideration of many more items. For instance, in a jury’s deliberation of the extent of an injury, the following items are considered: pain, discomfort, suffering, and disability and disfigurement. There are additional items that are difficult to value such as: loss of love, care, and affection as well as a general loss of enjoyment of life. Loss of enjoyment of life is the loss of one’s ability to participate in life’s activities with the quality and extent normally enjoyed before the injury. With a heading like pain and suffering, it is easy to see why most of us look cautiously and suspiciously at plaintiffs seeking significant noneconomic damages.

Remember what I said though, noneconomic damages are personal. Two people can have the same injury and the impact of that injury may be quite different for each person. An active outdoors individual will suffer a greater impact from a broken leg and someone who enjoys reading, for instance, as past time. A lawyer with a broken leg can probably go to work every day but a construction worker may not be so fortunate.

Many lawyers, including me, argue that because there is a difference from one person to the next caps on noneconomic damages are unfair and irrational. Nonetheless, legislatures across the country have capped noneconomic damages, usually in the amount of $250,000-$350,000. Such caps allow plaintiffs with modest to moderately severe injuries to recover the full amount of their noneconomic damages award. A person with catastrophic injuries, on the other hand, may not be permitted to keep what a jury deems to be a full measure of the noneconomic damages and is stuck, instead, with the artificial caps.

In Arizona we are fortunate to have a provision in our state Constitution that prohibits our legislators from taking away a right to recover a full measure of noneconomic damages. Still, Arizona’s legislators continue trying to regulate a plaintiff’s right to recover full damages, though every legislative effort meets with strong resistance from trial lawyers and others across the state.

At Clarke Law Offices, we look forward to an opportunity to fight for you or a loved one and recover for you the full measure of your damages, economic as well as noneconomic  If you have been in any type of accident and have been injured, call us for a free consultation..

What Are We Doing and Why Are We Doing It?

In a very compelling blog post, “What’s it for?,” Seth Godin brings us face-to-face with the reality that profits are the main force behind most of our professional endeavors. Seth compares the (likely) original motivation behind Time Magazine- to deliver the best weekly newsmagazine- with current thinking, where the main goal is most likely to make as much money as possible. As Seth points out, profit used to enable the goal, now profits are the goal.

If we think about it, profit is important. Without it we can’t even maintain let alone improve our standard of living. Product manufacturers can’t improve their products, health care providers can’t improve on the delivery of health care and, yes, magazines can’t improve their content without profit. Regrettably, it does appear that offering the best quality and sincerest product is no longer the main driving force of today’s companies.

We do not have to dig too deeply into the popular social press to identify the one profession many see as the greediest – lawyers. Perhaps we can even narrow that further to personal injury lawyers with their “excessive” contingency fee awards. It is certainly true that lawyers, like everyone else, have to make a living and want to get ahead. It is also true that a great many lawyers earn incomes and maintain standards of living few could even dream of, let alone achieve.

I must admit that I too became a lawyer because I wanted to earn a good income and get ahead. However, I can honestly say that my primary goal in choosing this profession is the same today as it was in 1977, to find reward in helping people and being challenged by my work.

That brings us back to Seth’s reality facing question: what are we doing and why are we doing it? If the answer is merely to make a profit, you may earn a significant profit only to realize in the last analysis that you have experienced little, if any, satisfaction from your work. If the answer, on the other hand, is to provide a solution to problems big or small, to be the very best maker of quality widgets, or to heal and save lives, you must also expect your efforts to be profitable lest you be unable to achieve your purpose. Without the profit, you will never attain your goal, but if you follow your dreams, the profits should follow you.

Since I brought it up, I should talk a bit more about how personal injury lawyers are typically paid: the contingency fee. First, a contingency fee enables a person who has been injured a way to redress that injury. It is often called the poor man’s key to the courthouse. When one reads about a multimillion dollar jury verdict and the multimillion dollar contingency fee paid to the attorney, one often reacts with shock and, occasionally, outrage.

It is important to note that multimillion dollar jury verdicts make the news because they are rare. A multimillion dollar jury verdict is the result of years of hard work by a legal team (not just a single lawyer) and, I dare say without exception, the law firm pays all costs out of its own pocket to prepare for that case; the costs can exceed six figures in a case of this magnitude. The verdict, being years in the making, came about because a lawyer was willing to take the risk and, perhaps, forego other cases where payment was assured or could be realized much more quickly.

For every multimillion dollar verdict, there is at least one case that did not turn out as expected; where the legal efforts and the advanced costs resulted in no recovery. In fact, I would be willing to wager that if you compare the contingency fee to the bill for the defense attorney at the going hourly rate for a multimillion dollar case, the compensation of the two attorneys would be very close.

I decided to be a personal injury lawyer because I love the work I do; I am rewarded every time I’m able to help someone through a difficult time like being injured in a car accident. My name is Bob Clarke and I’m a Phoenix personal injury lawyer and my goal is to give you my very best.

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Lawsuits – Exercising an Important Right

As is always the case, I hope none of you ever finds yourself a party to a lawsuit. Whether you are the plaintiff or defendant, whether you win or lose litigation is unpleasant, disruptive, and often disappointing. Filing a lawsuit should always be the last resort when trying to resolve a dispute. That’s true whether the dispute is over personal injuries you sustained in a car accident or whether your neighbor is encroaching onto your property with his recently erected fence.

Nonetheless, the right to file a lawsuit (or seek redress through the courts) is an important and necessary tool to seek justice when one has been wronged. Our law states: “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”

The amount in controversy requirement has changed considerably over the years but the right to a trial by jury is preserved. This is important because when it comes to determining the legal rights as between individuals, an individual and a corporation, or an individual and governmental entity, there is no better source than the jury, a collection of everyday people who bring their common sense, experience, intelligence, and a willingness to follow the law to bear on the facts before them.

Regrettably, when it comes to personal injury, our society has become jaundiced, cold, and indifferent. My favorite band, The Eagles, criticize personal injury lawsuits and personal injury lawyers in their song “Get over It.” The lyrics go like this: “You say you haven’t been the same since you had your little crash but you might feel better if they gave you some cash. The more I think about it, ole Billy (William Shakespeare-King Henry VI, Part 2, Act IV, Scene II) was right; “let’s kill all the lawyers, kill them tonight.”

The problem with that mind-set is that without lawyers and without access to the courtroom, a person who is injured, whether in a car accident, a fall at a department store, or because of a medical procedure gone wrong, would not be able to obtain redress, albeit in the form of monetary compensation for the injuries. Let’s face it, a personal injury can be devastating, life altering, and permanent. Our tort system says that if your personal injuries are the result of the wrongful conduct of another, you are entitled to compensation from that other (person or entity). In today’s world, that person or entity is usually insured and the insurance companies would have no incentive to pay a valid claim if the injured person did not have access to a lawyer and a court of law.

To be sure, there are frivolous lawsuits. The good people of Maricopa County who are chosen to sit as jurors show little difficulty dispatching frivolous claims if such claims get past the pretrial motions. All too often, our friends on the defensive side of personal injury lawsuits, most notably the insurance companies, perpetuate a myth that frivolousness is the rule and not the exception. In that regard, I suppose a frivolous lawsuit is like an activist judge. If the judge rules against you, he or she must be an activist. If the plaintiff loses his or her lawsuit, it must have been frivolous.

If you were injured in an accident, at the fault of another party, you are entitled to monetary compensation to pay for medical bills and lost wages at a minimum. This is the very reason it is mandatory for drivers in the State of Arizona to have insurance and the very reason trucking companies and construction companies and most companies have insurance. Don’t be afraid to make your claim if you have one. If you were legitimately injured by another party, this is your right.

For a variety of reasons, many people find lawsuits offensive and are reluctant to consider a lawsuit even to protect their own rights. While I would never quarrel with one’s convictions in this regard, at Clarke Law Offices, my conviction is to prosecute our injured clients’ claims with vigor and to present those claims to a jury when necessary.

The Personal Side of Lawyering

A lawyer’s job is to help the client. It may be by preparing a simple will or by representing the client in complex commercial litigation. Obviously, whatever the task, the lawyer must know the law and apply the law to achieve the appropriate result for his client. If the client knows that the lawyer knows the law and how to use it for the client’s benefit, the client’s confidence in the lawyer is confirmed. As a lawyer much wiser than me often said, however, the client does not care what you know until he or she knows that you care.

At Clarke Law Offices it has been my honor to represent people who have experienced catastrophic losses. Whether it is a parent who has lost a child or person who has lost the ability to function normally and handle activities of daily living, my clients have needed and deserved much more than my legal knowledge. While I fall far short of being a counselor, therapist, social worker, or intimate friend, I have always felt it part of my duty and a source of my greatest reward to listen deeply to my clients and try to understand that their case is about much more than liability and the appropriate legal measure of damages. My clients have suffered tremendous personal losses and they need me to be able to relate to them with an understanding of those losses.

This starts, of course, with listening. There will be plenty of time to tell the client what I know about wrongful death litigation, suing a doctor or other professional, and how we will put the damages case together. Listening isn’t just being quiet and thinking about who I am going to sue and when while my client is talking; listening is being quiet and paying attention to my client’s words. Sometimes it is best to just listen, don’t take notes-just listen. I am not afraid to ask the client to clarify a point; nor am I afraid to offer my sympathies and understanding of their circumstance.

This is not an exact science and I am not a perfect practitioner. Over the years, however, some of the greatest compliments I received from clients are that they knew I cared. Knowing as much as I can about the personal impact of my clients’ losses has strengthened my commitment to work my hardest for my client.

As I have said countless times, I truly hope none of you ever need my services; that would mean you suffered a loss that no one of should ever experience. If you do, in addition to promising my best professional efforts, I will strive to understand your loss in your own terms.

What is Malpractice?

The word malpractice means bad practice.  In a professional setting (such as medical malpractice or legal malpractice) it means that a person with a professional license has been negligent and such negligence was a cause of a personal injury or damages to you.

Malpractice or bad practice is not to be confused with bad outcome.  If, for instance, you hire a lawyer to file a lawsuit for you and you lose the lawsuit that is obviously a bad outcome.  If your lawyer handled your lawsuit in a professional, non-negligent manner, then the lawyer did not commit malpractice.  On the other hand, if you lost your lawsuit because your lawyer failed to gather evidence, subpoena witnesses, or otherwise failed to properly present your case, you may have a claim against your lawyer for malpractice.  The same is true for physicians.  As patients, we see physicians to receive treatment for a health problem; the treatment may be taking prescribed medications or undergoing surgery.  Our physician may do everything possible to address our health problems yet we may remain uncured or we may even be made worse.  In such a case, the physician who does what is required will not be held liable even if there is a bad outcome.

Doing what is required is called meeting the standard of care.  The standard of care is not a vague, esoteric legal concept; it applies to every one of us in everything we do.  As we approach a school zone, for instance, the standard of care applicable to every one driving a vehicle on the road is to slow down so that we are traveling no more than 15 mph as we enter the school zone.  If we are stopped in an intersection, waiting to make a left turn, the standard of care requires us to wait for all oncoming traffic to clear and to make the turn only when it is safe to do so.  For all of us, generally, the standard of care can be defined as that which a reasonably prudent person would do under the same or similar circumstances.  By substituting the word professional for the word person makes the foregoing definition fit (i.e. the standard of care is that which a reasonably prudent professional would do under the same or similar circumstances).

While we all know what the standard of care is when we’re driving a vehicle or doing most of life’s activities, we do not know what the standard of care is regarding the duties owed by a professional whether a doctor, lawyer, engineer, accountant, or any other professional.  We must then look to members of the same profession to establish the standard of care.  To know what a reasonably prudent professional would do under the same or similar circumstances, we would have to ask a professional to assume those circumstances and render an opinion as to whether or not the professional in question met the standard of care.  To maintain a lawsuit against a professional, an injured person must prove not only what the standard of care is but that the professional fell below or breached the standard of care and the person’s injuries or damages were a result of that breach.  This is not a simple task and if you believe you may have been the victim of professional malpractice, I encourage you to discuss your potential case with an experienced malpractice lawyer.

Just as it is true that not every bad outcome results from a bad practice it is true that malpractice does occur and clients or patients are injured by the malpractice.  At Clarke Law Offices, I welcome the opportunity to speak with you about your potential malpractice claim.

Call us today for a free consultation (602) 952-3232

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