Exceptions To The Statue Of Limitations

The statue of limitation is the specific statute that sets the period of time when a person can bring an action as plaintiff. After the state of limitations the right to bring an action expires and the claimant cannot being a lawsuit. It is a rule that is almost set in stone. Generally speaking nothing can be done once the statute of limitations runs out, but there are a few exceptions. The exceptions are few and depending on discretion. There is no statute providing for a specific extension period. The amount of time by which a statue can be extended varies and whether or not the statute is extended depends on the sound discretion of the judge.

An exception to the statue of limitation is called equitable tolling. In equitable tolling the prospective plaintiff is allowed to commence an action past the statue of limitations. In John McDonald v. Antelope Valley Community College District, 45 Cal.4th 88, 84 Cal.Rptr.3d 734 (2008), the court explained the principals of equitable tolling. In McDonald the trial court entered summary judgment in favor of defendant community college district on the grounds that the claim was untimely under California Government Code Section 12900 et seq. The plaintiff argued equitable tolling, but the trial court held that equitable tolling was not available because procedure followed by plaintiff was voluntary and need not be exhausted before proceeding with a lawsuit. The court of appeal reversed holding that the traditional equitable tolling principles may apply to extend the state of limitations for filing a FEHA administrative complaint. The matter was appealed to the California Supreme Court and the Supreme Court held that the statute is tolled.

The court explained that the equitable tolling of the statue of limitations is a judically created, nonstatutory doctrine. The court explained that the doctrine of equitable tolling is designed to prevent unjust and technical forfeitures of the right to a trial on the merits when the purpose of the statute of limitations has been satisfied. The legitimacy of the doctrine is unquestioned. It is a creature of the judiciary’s inherent power to formulate rules of procedure where justice demands it. The power is as old as the republic. The United States Supreme Court itself suspended the statute of limitations, because of the Revolutionary War.

Tolling the statute of limitations eases the pressure on parties concurrently seeking redress in two different forums with the danger of conflicting decisions on the same issue. By allowing the plaintiff eliminate the fear of claim forfeiture the plaintiff can pursue informal remedies, which are encouraged by the courts. The court explained that the tolling doctrine does not compromise defendants’ significant interest in being promptly apprised of claims against them in order that they may gather evidence. The notice interest is satisfied by the filing of the first proceeding that gives rise to tolling. The court system also prefers to encourage one filing instead of duplicate filings which increases costs and the potentially conflicting results.

The principal of equitable tolling is a not well known but available remedy to the statute of limitations running out.

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Legal malpractice is probably less well-known by most people than is another type of malpractice issue: medical malpractice. However, legal malpractice cases can be just as serious as are their medical counterparts. They have potentially far-reaching impact upon the lives of people who have been involved in a legal battle that ended unfavorably due to incompetency or intentional misrepresentation on behalf of the attorney(s) who represented them.

What constitutes legal malpractice and how do you determine whether you may have cause for a legitimate case?

Here are 7 guidelines for discerning whether you may have grounds for a case. Note, however, that it is essential that you consult with a licensed attorney to help you determine if there are grounds for a legitimate case in your particular situation:

Guideline 1: A legal malpractice cases is really a case within a case: Such cases must by definition come about after the close of another case whereby the would-be plaintiff has experienced an unfavorable decision – either a loss or an inadequate settlement. In this sense, a legal malpractice case is really a case within a case. If all of the qualifying conditions for are met, such a case may be brought against the attorney representing the client in the underlying (i.e., original) case. If the first attorney is found to have been negligent or misleading, he or she may be liable for damages to the original plaintiff.

Guideline 2: The concept rests upon the assumption that attorneys are obligated to act competently: Legal malpractice cases are built upon the premise that attorneys, when representing clients in legal cases, are expected to conduct themselves in a professional and competent manner. Like other professionals, attorneys are implicitly trusted by their clients to do everything reasonable within their power to act on behalf of their clients. The failure to do so, especially if a particular legal case ends in an unfavorable decision for the client, may represent grounds for a legitimate case.

Guideline 3: Legal malpractice proceedings may be called for when any of at least three types of conditions are met: There are three primary situations whereby a client may have grounds for a case: if the attorney in the case missed an important court-related deadline (e.g., a filing deadline), if the attorney intentionally misrepresented material facts to the client, or if the settlement resulting from a case was inadequate. Meeting one or more of these conditions does not automatically qualify as grounds for a legitimate case, but they are necessary for the case to move forward at all.

Guideline 4: The plaintiff must prove that the underlying case had merit: Before bringing a case against the attorney in the initial case, the would-be plaintiff of the new case must first prove that the underlying (i.e., original) case had merit. If it cannot be shown that the underlying case had sufficient merit such that it could have otherwise potentially won in court, then any statements made about the incompetency or misrepresentation by the attorney in that case become moot.

Guideline 5: The second attorney must thoroughly investigate the underlying case: If one approaches a second attorney about the possibility of representing them in a legal malpractice case, this second attorney is obligated to thoroughly investigate the underlying case to verify whether it indeed had merit. In fact, if the second attorney fails to do so before initiating a case, they themselves could potentially in turn be held liable.

Guideline 6: The second attorney must make sure there are no other legal options available: Another prerequisite for the secondary attorney taking on a malpractice case is that they make sure that their client has exhausted all other legal options for the underlying case. In other words, it must be shown that the case would be the only justifiable way for the client in the original case to have the chance of receiving justice.

Guideline 7: To be successful, the initial attorney must be proven to have acted incompetently: Acting incompetently and being proven to have acted incompetently are of course two different things. Even if the second attorney is convinced that the original case acted incompetently, the second attorney must still be prepared to prove that this was indeed true. Ultimately, to win a case, there needs to be substantial evidence that the first attorney did indeed act in a manner that is not commensurate with the duties and obligations of a professional, practicing attorney.

Initiating a legal malpractice suit may be the best path to justice for those who have met with unfavorable outcomes in past legal cases whereby there is strong reason to believe that their representing counsel was acting incompetently or that they intentionally misrepresented the potential success of the case. The guidelines shared above can help you preliminarily determine whether you might have grounds for a case. Please consult with a seasoned attorney to confirm whether you may have a case.

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If you don’t know what a warrant for arrest is and how to find out if you have an arrest warrant then you could be storing up a lot of trouble for yourself with the police

A warrant for arrest may be issued if you fail to appear in court at any time when you should have done. You might have neglected to show proof of community service that you’ve done or failed to pay a fine.

If the police think that you’ve committed a crime and have sufficient evidence against you then they can apply to the court for a warrant for your arrest. Once a warrant has been issued against you the police will come looking to arrest you and take you to jail.

Don’t ignore a warrant for arrest even if you don’t know you have one

A warrant for arrest is something that you can’t afford to ignore even if you didn’t commit the crime. If the police arrest you then you’ll end up in court and your record will show that you were arrested and returned on the warrant involuntarily. If the court thinks that the police had to track you down and drag you into court then they will be against you from the start even if you didn’t know that the warrant existed.

Being arrested on arrest warrants that you didn’t know that you have isn’t as uncommon as you might think. You might have simply forgotten to pay a fine or picked up a speeding offence. You might even have been victim of criminal identity theft where someone else has committed a crime in your name.

Giving yourself up voluntarily is much better than being dragged into court

If you give yourself up voluntarily to the court on a warrant for arrest then you can expect to be treated very differently by the court. They will often be more sympathetic to your case and grant bail more easily. To do this you must be aware that you have a warrant in the first place so it’s very important that you check for arrest warrants routinely.

Search for arrest warrants quickly and from the comfort of your home

You can check for arrest warrants easily and quickly by subscribing to an online service like the one mentioned in this article How do I check for arrest warrants. Alternatively you can check at the courthouse or ask a police officer neither of which are ideal solutions.

However you decide to check for warrants do it do it now and do it often. It could make a serious difference to your life one day.

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Many people have heard of, or been affected by what is known as “industrial disease.” Industrial Disease is condition in which a worker/employee forms a disease after being exposed to a chemical or toxin that has been discharged by business/industry into their environment. Some examples include Leukaemia (from electromagnetic radiation), cataracts (from prolonged exposure to red or white hot objects), dysbarism (from exposure to compressed or rarefied air/gases), task specific focal dystonia (from prolonged periods of handwriting, typing, etc), deafness (from prolonged exposure to loud noises), Mesothelioma (from prolonged exposure to asbestos dust), hepatitis A (from exposure to raw sewage), Hydatidosis (from exposure to dogs), as well as many other types of diseases. In some of these situations/job functions, the disease is not due to negligence of the business, but rather an inherent side-affect well known to the employee before taking the job. This would include such things as doctors or veterinarians contracting diseases from patients.

However, the more dangerous diseases are ones that could either be prevented by the businesses, or that were previously unknown to either the employer or the employee until much later when the disease has metastasized. Some examples of preventable industrial disease would be such things as wearing inhalation masks in coal mines to prevent “coal miner’s lung”. Another example would be requiring hearing protection on construction sites to prevent hearing loss. These diseases can easily be prevented by the business/employers by educating the workers and/or requiring safety measures to be addressed. The more difficult situations occur when neither the business nor the worker is aware that exposure to certain toxins can cause harm to the person.

A recent example of this is Asbestos dust. In the early to mid 20th century, it was not known that this dust could cause cancer after prolonged inhalation. Now it has been proven that it can, and many workers have sued their former employers for this. All in all, industrial diseases can be very traumatic and/or fatal to employees. Anyone looking to take a job should thoroughly research any dangers that might be inherent to its environment. (note: disease list referenced from http://www.dwp.gov.uk. More diseases can be found at this website)

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Ever since Socrates received the death penalty in Greece, 400 years before the Common Era – and most likely long before that – people have been complaining about, and depending upon, lawyers.

In fact, Socrates himself held the law in such high esteem that when he was given the opportunity to go into exile instead of carrying out the sentence (which was suicide) he went ahead and complied with the ruling rather than bring dishonor to the law by avoiding it.

Actually, Law itself is not such a cut-and-dried, practical discipline, as people tend to think. It is more in the nature of a philosophy, dealing with the most abstract of concepts such as justice, right and wrong, fairness, guilt and innocence, human rights and the responsibility of citizens to one another. It is how these principles are applied in a practical manner to individual situations that brings the study and practice of law from the abstract to the concrete.

Here are just a few of the areas of specialty in the legal profession today:

Loans and mortgages

Refinancing

Consolidation of loans

Taxes

Criminal Defense or Prosecution

Personal Injury

Registration of Domain Names

Wrongful death suits

Insurance settlements

Medical claims

Malpractice suits

Bankruptcy

Divorce

Pre-Nuptial Agreements

Asbestos or mesothelioma claims

Trademarks

Copyrights

Patents

Wills

Inheritance disputes

Custody agreements

Product liability

Business contracts

This partial list demonstrates how thoroughly every aspect of our society is impacted by the legal system and lawyers, also called attorneys, are the backbone of the system both in advocating for clients and in advising them. It is the job of lawyers not to write the laws but to apply them to particular circumstances.

The profession developed slowly and by the mid-1500s in England two distinct types of lawyers had appeared, actually creating two branches of the profession, which are still operating today: barristers and solicitors. A barrister is roughly equivalent to a trial lawyer and though a solicitor may appear in a lower court, he or she mainly advises clients and prepares cases for barristers to present in higher courts. But there was a natural conflict built into their class system. On the one hand, only people of the upper classes could afford to be educated well enough to practice law but it was thought to be beneath members of those classes to practice a profession at all. One should, in those days, have sufficient inherited income or income from property to have a secure livelihood without having a profession.

In the American colonies there was no such prejudice. It was considered a desirable thing for children to grow up with the idea of earning an income other than that provided by the land and the law, with its necessity for higher learning, was a more respectable profession than many. Americans expected to have rights, to have those rights protected by law and for those protections to be upheld by local courts. While they often went to England to be educated in the law they did not intend for English courts to administer American justice. In fact, it was the principles of English law and the fact that the law was not being administered fairly in the American colonies that led to the desire for independence from the crown. Nearly a quarter of the signers of the Declaration of Independence had studied law in England.

Most lawyers have a specialization based on their own particular skills and preferences. Trial lawyers, although they should prepare very carefully beforehand, must feel comfortable “thinking on their feet” and speaking extemporaneously in public. Trial work, which may be done by any lawyer, is especially suited to people with those skills and with a taste for playing what amounts to a game of strategy, sometimes with clients’ property, freedom or even lives, at stake.

Even within legal specialties there is flexibility. For instance, an attorney who has a reputation for being especially well versed in environmental law may take cases for the side of corporations being accused of polluting or for a citizens’ group attempting to sue such corporations for damages.

Mesothelioma, for instance, is a lung disease usually caused by exposure to asbestos, which may have occurred in a working situation. When asbestos was first used this hazard was not known. In addition, a further complication is caused by the fact that there may be as long as twenty or thirty years after exposure for the disease to appear in a person. Therefore an entire sub-specialty in law has grown up around cases in which people with this disease are suing companies for health care payments or compensation for pain and suffering. Questions about whether a company knew of the danger when they hired people for these jobs and whether the people were aware of the risks they were taken are factors in litigation.

Some attorneys specialize in car accidents, on behalf of injured people, on behalf of people charged with causing accidents or on behalf of insurance companies. Some specialize in medical malpractice, on behalf of either patients or physicians.

Those who specialize in courtroom criminal law, either as prosecutors or defense attorneys, are sometimes considered to be the “stars” of the legal system as they often are the most visible in terms of media coverage.

Whatever their specialty, if they plan to have one, every lawyer must go many years of education and training before they are licensed. In most states this means that after earning a college degree a person must graduate from a law school, which has been accredited by the American Bar Association. They must then take, and pass, a bar examination. In a few states it is possible to take the bar exam after a kind of apprenticeship in a law office. This method was the one universally used before accredited law schools came into being.

Because of the fact that attorneys sometimes are called on to defend unpopular clients, they have sometimes been the butt of jokes at their expense. But since it is almost impossible for a person to find their way through any legal entanglement by themselves, there is no doubt that the legal profession will play a prominent role in our society for the foreseeable future.

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1. You like your doctor

So, what’s wrong with that? Nothing. Most of us like our doctors. That’s why we trust them and keep going back to them for treatment. But should the fact that you like your doctor prevent you from seeking compensation when he or she committed wrongdoing that caused you physical and emotional injury?

The law in New York permits anyone who has been injured by another to bring a lawsuit for compensation. This law originated from common law and goes back hundreds of years. In fact in some religions there is evidence that this type of law goes back thousands of years. It makes good common sense. If another person causes you harm, you are entitled to obtain money to pay for your medical expenses, your lost earnings, your future lost earnings, the damage to your property, and of course, compensation for the pain and suffering you endured.

So, should the fact that you like your doctor prevent you from bringing a lawsuit? It might make you feel uncomfortable, but I guarantee that when you start to think about your disabling injuries and how your doctor caused them, the anger and hostility you feel will usually outweigh your fondness for your doctor.

2. What good will the money do for you?

This is a common rhetorical question that defense attorneys often ask plaintiff’s lawyers. “The money won’t bring your loved one back,” “The money won’t make you whole again,” “The money you’re asking for isn’t going to change anything…”

However, money is the only thing that our justice system allows us to recover when an injured victim sues their wrongdoer. While those comments above may all be true, we are prohibited from taking justice into our own hands. Therefore, what else can we obtain for the injured victim? Money is the only thing that allows us to pay the medical bills that were generated as a result of the wrongdoing. Money is going to make the victim more financially secure. Money will help the injured victim with ongoing medical care and rehabilitation. The injured victim will not be a burden on a City or governmental handout. Money will help his children go to school or camp. Money may help with modifications needed in his home- such as a wheelchair ramp or modified kitchen appliances.

Money can never make us whole, or replace the agony and suffering that was caused by a doctor or a hospital. But the money is supposed to make those wrongdoers think twice about doing that same action again, and hopefully prevent the next person from being a malpractice victim.

3. Your doctor’s reputation will be tarnished

Contrary to popular opinion, (or at least from the doctor’s insurance company) this is not an accurate statement. Most people living in a civilized society recognize the right to sue. The fact that a doctor has been or is sued is not that significant. If you ask a doctor if they’ve been sued, they will often be quick to explain how the case had no merit. Importantly, the physician will still continue to practice medicine and there will usually be no disciplinary action taken as a result of a civil medical malpractice lawsuit. The belief that a doctor’s reputation will suffer a blemish if sued, is simply not correct.

4. Your doctor will be banished from his community

Once again, this statement is not true. The doctor will continue to practice medicine (even if they lose the malpractice suit against them, and are required to pay the injured victim money). The doctor will not lose their license, and in all probability, the award will not be reported in the local papers, and most of his patients won’t even know of the lawsuit or the award.

5. Your doctor will shut his medical practice

No he won’t. He might be outraged that he has to defend a lawsuit and take time away from his practice for a few days, but there is no reason for him to shut his medical practice.

In very extreme cases where the physician is a threat to the health and well-being of his patients, the New York State Department of Health can and will shut down the doctor’s practice and revoke his license to practice.

But, in the majority of cases, this does not happen, and the doctor continues on with his practice and his life.

6. Your doctor may lose his license

Not true. A civil lawsuit in New York has no effect on whether a doctor does or does not lose his license to practice medicine. In order for a New York doctor to lose his license, the New York State Department of Health investigates a complaint of wrongdoing. After extensive investigation and after a hearing where the physician gets to explain what happened and why, the Department of Health reaches their own conclusions about whether treatment was rendered in accordance with good medical care or whether there were deficiencies.

The options to punish or cure the deficiencies are many, and only as the most extreme- and last resort option would the Health Department revoke a physician’s license. But simply by bringing a lawsuit against a physician for monetary compensation does not affect his license to practice medicine.

7. Your doctor may alter your records

Believe it or not, this has been known to occur in rare instances. When it does, the attorney representing you may be able to prove it. If your lawyer is able to prove that your doctor altered your records, the doctor could suffer significant penalties and could lose his license to practice medicine. The fact that he may or may not alter your records should not prevent you from investigating and/or pursuing an action on your behalf. There are usually other ways to determine what treatment was rendered, and often such action by a doctor can help your case by showing the extent to which the doctor tried to cover up the wrongdoing.

8. Your doctor may apologize and tell you it was all a mistake

There are recent medical and insurance studies that have confirmed that when doctors and hospital staff are straightforward and honest about what happened, patients and their families tend to understand that ‘not everyone is perfect’. In fact, some hospitals encourage the doctors to fess-up and tell the patients they screwed up, and apologize, and arrange to have the hospital immediately reconcile financially with the patient and his family. The studies indicate this works.

Does that mean that you shouldn’t sue because the doctor apologized? Not necessarily. An apology may not solve your problems. You need to decide whether such an apology is sufficient. Most people will tell you it’s not.

9. Your friends and family may think you’re a gold-digger

If you live your life concerned about what your friends and family think, then maybe you shouldn’t sue-under any circumstance. Your friends have not experienced what you have gone through. Nor do they live with the constant pain and disability that you have. They may not truly understand what you will live with for the rest of your life.

Some folks simply don’t want their friends and family to know they’re involved in a lawsuit. The reasons are endless. “I don’t want anyone knowing my business.” “I don’t want my neighbors knowing how much of an award I received.” “I don’t want my family members asking me for money- this is for my future- I can’t work anymore, and I can’t afford to give it away.” “I don’t want my relatives to argue with me about why I sued my doctor.”

You must decide for yourself whether these concerns outweigh your legal right to bring suit and recover money for your injuries.

10. Your injuries aren’t that disabling

There are cases where the injuries are significant, but have cleared up after many months or years. The fact that you may no longer be permanently disabled is a factor to determine how much your case is worth. If you are no longer disabled- we congratulate you and your success in overcoming your injuries. If you can do those activities that you used to do, we are extremely pleased with your recovery. You should know however, that such success means that the value of your case may be limited to the time you were injured and disabled. Most people would agree with this result. You only can receive compensation for the time you were injured and disabled.

Many injured folks may make a recovery, but still be unable to do all of those daily life activities they used to do. Where there is an ongoing problem or disability, the value of your case is generally greater than where you have totally healed.

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Every year there are countless numbers of people that are filing medical malpractice lawsuits due to misdiagnosis, negligence, medical errors, delayed diagnosis and surgery errors, and many other things that were needless delays or errors that resulted in the injury or even death of a patient.

No doctor can assure you that the outcome of every surgery will be ok. There are always risks involved when taking medical treatments. People react differently to different medications and different procedures. Doctors make decisions based on the best evidence they can see at the time, and sometimes those decisions need to be made quickly or without a complete picture.

Nevertheless, due to the mistakes of doctors and other medical personnel, many people have suffered needlessly and some have even died. The hardship of the grieving family that is left behind and the loss of life of a person that still could be enjoying life and contributing to others is often overlooked.

If a person remains permanently disabled due to such mistakes, the hardship both of the family and the surviving person is great and often a medical lawsuit should be filed in order to keep up with expenses and to help with the damage that a person is experiencing for the rest of his or her life. This is a primary reason for malpractice lawsuits – the financial expense that the family or care-givers will need to provide for the patient due to the error, which many times will not be covered by standard health insurance.

Most people may think that medical malpractice lawsuits are made because of mistakes by surgeons. While it is true that surgeons have made some terrible mistakes, the majority of lawsuits filed actually stems from mistakes from wrong or delayed diagnosis, which can reflect poorly on various departments within the hospital, such as the readings of a radiologist or the attending nurse or others. When the doctor or surgeon is given wrong information, mistakes can and will happen, sometimes with disastrous results.

At the top of the list are colon caner, lung cancer, breast cancer rectal cancer and other various forms of cancer as well as heart attacks. A misdiagnosis in any of these diseases can be life threatening and very dangerous, and often results in very unfortunate circumstances.

A recent study released by the National Academy of Sciences Institute of Medicine says that up to 98,000 people are killed yearly due to medical errors in hospitals. The number of inflicted injuries and long-term unfortunate and unnecessary pain is much higher. There are also an increasing number of cases of negligence in nursing homes.

Yet some studies have shown that only a small number of people (between 2% – 5%) that have experienced wrongful injuries file medical malpractice lawsuits. The common misperception that many people have is that the doctor is human and therefore allowed to make mistakes. While that is true to an extent, it is the job of the medical malpractice lawsuit to determine why the error occurred and could it have been prevented, since when human life is involved, the allowance for errors is much less tolerant. It certainly has a much greater impact than making an error when balancing your checkbook.

Sometimes patients may go for a settlement instead of a medical malpractice lawsuit. When it is obvious that a doctor or any other medical staff has made a mistake that could have been avoided, you want to talk to a professional lawyer who is experienced in medical malpractice lawsuits. It is only fair for the injured person that has now needlessly to suffer to get some financial help.

Pain and suffering damages make up about 50% of all the money that is awarded in medical malpractice lawsuits.

If you think your family has been a victim of medical errors, misdiagnosis or surgical errors you want to seek some help and financial relief for physical and emotional damages that cannot be undone. A lawyer who is experienced in the area of medical malpractice should be able to tell you about your chances of winning the lawsuit based on the circumstances, and also based on the malpractice laws in your state.

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QUESTIONS TO ASK THE DEFENDANT DOCTOR

WARNING:

Preparation is the entire key to a doctor’s deposition. You must spend countless hours reviewing the entire file, reviewing all the medical records, notes and entries in the chart. You must know and review your theory of liability, causation and damages before you begin to review the file. You must keep track of anything in the chart that will help you in your quest to prove each element of liability, causation and damages.

1. Most lawyers ask the same boring questions at the beginning of every deposition:

a. State your name and address

b. State your qualifications, pedigree, schooling, etc.

Comment: OK, this is fine, but very boring and very expected by defense counsel and the doctor. Mix it up a bit. I advocate never starting a doctor’s deposition this way. Why not go right to the heart of the case with the very first question? You can always get the doctor’s credentials later or at the end. Besides, the credentials are usually found online or in a curriculum vitae, and don’t help except to establish where he went to school and whether he’s board certified in any specialty. On more than one occasion the doctor has been disoriented by this approach. They are usually prepared for questions in a lock-step manner and do not expect something so unusual, but legally permissible set of questions right off the bat.

2. Go ahead- ask why they operated on the wrong side of the brain as your first question. “Objection, no foundation,” says the defense attorney. “So where does it say in the CPLR I need to lay a foundation question?” Despite this exchange of ‘ideas’, if you get such an objection, then simply ask:

a. “Didn’t you operate on my client on this date?”

b. “Isn’t it true you operated on the wrong leg?”

c. “Why?”

3. I always advocate asking the ‘why’ question at deposition. It is much better to know the reasons why a doctor did or didn’t so something now, rather than save the question for trial. At trial, the reason may be devastating to our case, and if so, I want to know about it now. Besides, when you question a doctor at trial, as an adverse witness, you never want to ask a question in which you don’t know the answer. If you do, you subject yourself, your client and your case to inherent risks that could jeopardize the case.

4. Make the doctor read his notes into the record. This is important for anyone who is trying to decipher the doctor’s handwriting later on. Your expert will definitely need to know whether the scribble is important, and the only way to do that is if the doctor explains, on the record, what his scribble means.

5. Be polite. At all times. You can’t imagine how many lawyers don’t listen to this recommendation. They think they know it all, are sarcastic, belligerent, annoying, and really annoy everybody in the room. The doctor’s attitude in responding changes as well. No longer is the doctor as verbose. No longer does the doctor look like the perpetrator. Rather, he might begin to look like a victim if attacks against him and his credibility are kept up.

6. You can still make all your points without being hostile, angry, yelling or screaming. The old saying ‘you get more with honey than with vinegar’ speaks volumes. Naturally, you’re not going to bend over and sweet talk your way to getting the doctor’s admissions about how he screwed up. But, the key is being professional and knowledgeable. You gain more respect from your adversary- (don’t worry about respect or lack of it from the doctor) by being respectful than you do if you are antagonistic.

7. There are times when you want to rile the physician. You want to know if you can push his buttons. You want to know how easily it is to rankle his composure. If it’s easy to do at deposition, your trial strategy toward this witness just got that much easier.

8. Find out about conversations the doctor had with the patient, family members and other doctors. Remember, conversations are rarely recorded in a hospital record. Make sure you ask the doctor to confirm or deny comments that your client has testified about. Most often, the doctor will claim they no longer recall the conversation. But, if your client does, it’s much more possible that the conversation occurred. If the doctor denies making certain comments, then you know you have different facts about the same conversation, and a jury will have to ultimately decide who is telling the truth.

9. Ask whether the doctor has ever had his license to practice medicine suspended and/or revoked.

a. Ask whether their hospital privileges have ever been suspended or provoked.

b. Always ask whether the doctor has given testimony before.

i. Ask whether it was an an expert for plaintiff or defendant

ii. Ask whether they were a treating physician

iii. Ask what type of case it was, and the name of the case

iv. Ask whether they were paid for their time in Court to testify in that matter

10. In New York, in a medical malpractice deposition, you must ask opinion questions. The doctor- as a defendant is required to answer ‘expert’ questions and give answers about his medical opinions.

a. Do you have an opinion, with a reasonable degree of medical probability whether the treatment rendered to Mrs. X was appropriate and within the standard of care?

b. If you have an opinion, what is that opinion?

c. Confront the doctor with other opinions in the medical community that disagree with his school of thought and ask what he thinks of those opinions.

d. Ask the doctor to admit to certain facts- Here’s an example:

i. Isn’t it true the patient got Ex-lax at 10 p.m.?

ii. Isn’t it true that patients with colon tumors shouldn’t get ex-lax?

iii. Are there any circumstances when you would prescribe this medication for a patient who had this tumor?

iv. Would you agree that if the patient got ex-lax at 10 pm that would be a departure from good care?

v. Would you agree that the only reason the patient suffered injury was because she got ex-lax at 10 pm?

vi. Would you agree that had she not gotten the ex-lax at 10 pm, she wouldn’t have suffered the bowel perforation?

11. Make sure you rule out other potential causes of injury besides the malpractice that you are claiming occurred here. The reason you do this is to learn the potential defense to your case. The defense will always come up with some explanation as to why your argument is not valid. Better you should learn it during the deposition than to head to trial without knowing what their defense will be.

12. Ask many open ended questions. Ask who/ what/ where/ when/ why/ how. By doing this, you will get the doctor to talk and explain. If the doctor’s is going on and on without directly answering the question- and his attorney is letting him- that’s ok. Let him keep talking; you might actually get some useful information. When he stops talking simply say “Maybe my question wasn’t clear doctor. What I was looking for was….can you answer that question?” Always take the blame if the doctor says the question is not clear. Don’t respond to him by asking “What didn’t you understand about my English language question?”

13. Ask about medical definitions.

a. What is an endocervical curettage?

b. What is a myocardial infarction?

c. What is hypoxia?

d. Ask whether these definitions are commonly accepted within the medical community, or whether there are other schools of accepted definitions.

14. Ask whether they’ve reviewed any medical literature or textbooks prior to coming to the deposition.

a. Did you bring any with you?

b. Which ones did you review?

c. What did you learn from the article? Did it support your position here, or was it contrary to your position?

15. Finally, but not last, ask about credentials, schooling, licensing, board certification- but you should already have this information before your deposition when you research the defendant doctor. I always advocate doing a Google search on the physician to see if they’ve authored anything or if there’s anything out there online that’s worthwhile knowing. I recently learned from an online search where the defendant doctor was fired from his residency and sued the chairman of his department. Needless to say, this information proved very useful at deposition.

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There have been many books written about how to conduct depositions. The most important factor about taking a doctor’s deposition has, in my opinion, been the experience of the attorney doing the questioning. Anyone can read from a list of prepared questions. It takes an experienced attorney to listen to the answers and know where you want to go and then develop a strategy on how to get there while protecting your client’s rights to the best of your ability.

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Most people when thinking about malpractice suits are not aware that there are also dental malpractice suits filed. Dental malpractice suits are in their own category but just as any other person in the medical field, dentists are liable for improper treatment services.

The frequency of the number of claims in dental malpractice is pretty steady. The claims are smaller of course than in the medical field. Here is a range of injuries, due to improper dental treatment that can lead to a dental malpractice claim: injuries to jaw, lip and tongue nerves, injuries related to anesthesia and death.

If a dentist for example fails to detect oral cancer, and other oral diseases he is liable.

A dentist has to make sure that there are no prior medical conditions that may require special treatment for example before giving anesthesia.

The most obvious dental malpractice case is when a patient dies from the dental procedure. This can happen for example by administering improper anesthesia or by improper treatment of gum infections. Here are some other reasons for a person to be able to file a dental malpractice suit:

1. Permanent nerve damage due to complications from an oral surgery.

2. Sometimes a root canal can result in permanent numbness.

3. When a person may be injured from what is called a dental extraction (making a mistake by accidentally removing a good tooth)

Dentists are just like other physicians liable for any injury due to improper treatment or wrong diagnosis. By law, dentists are held to a certain standard of care when rendering services to their patients.

Here are some real cases of dental malpractice:

1. A case of periodontal abscess caused by defective bridge not properly treated: a $24,000 settlement.

2. A woman had a procedure done but it was done with improper contoured crowns and bridges, negligence: a $47,500 settlement.

3. A patient had a permanently numbed tongue following a rather routine wisdom tooth extraction: a $140.000 settlement.

4. A young man who sustained nerve injury in his mouth as a result of a dental procedure: a $54,000 settlement,

5. A woman with painful numb lip and chin after a routine dental treatment: a $100.000 settlement.

While it is not quite clear how many cases of dental malpractice are filed every year in the United States alone, according to some statistics the numbers are rising. There are countless cases of people that have suffered due to improper dental procedures and negligence and all too often these cases are not reported. Often, people may not be aware that they can file a dental malpractice suit. While dentists are people and therefore can make mistakes, making an error that results in a permanent injury that could have been avoided is not acceptable.

If you feel that you have experienced any of the injuries above or some others, it may be time for you to search for a lawyer that is familiar with dental malpractice lawsuits and that can help and advise you.

The time that you may spend searching for such a lawyer could make a difference in your life or the life of one of your family members. It is only right to get justice when injured through careless dental treatments or negligence.

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Many victims wonder how long does it take to settle a car accident case especially if they have been injured or have experienced loss of property and need financial help immediately. Many things can happen as a result of a car accident such as a disability, vehicular damage, loss of job or even death. Those who have experienced some loss that requires immediate help are the most desperate to know how long does it take to settle a car accident case. Here are some basic guidelines in determining the length of time you can expect regarding vehicular accident case settlements.

1. Circumstances of Accident – As with any law case, the circumstances will determine the length of time and amount of energy necessary to resolve the issue. The more complicated the situation, the longer a case generally requires. If you are involved in a simple case that is clearly the other driver’s fault as determined by law enforcement and the driver does not challenge the assessment, you may see your case settled within a few weeks. A more complicated case that involves issues such as drunk driving, death or disability claims can require a lot more time and you can expect to be involved for several months or even a couple of years before it is resolved legally and financially.

2. Attitude of the Insurance Company – Another issue that can make a case shorter or longer is the attitude of the liable insurance company. If they refuse to settle in short order or decide to prolong the case by throwing up every paper thin issue they can find, you may be dealing with them for several months before every protest is met. On the other hand, a reputable insurance company that puts consumer interests first will usually settle a case within a few weeks rather than spend extra time and money on a prolonged case.

3. Ability of Your Counsel – The attorney that you choose will play an important part in whether or not your case is resolved successfully as well as in a shorter amount of time. When choosing a competent lawyer, be sure that you choose one that listens to you, that has handled several cases similar to yours and that has a success rate in dealing with car accident cases. An experienced attorney who handles mostly accident cases will do a much better job, generally speaking, than another lawyer who only handles these types of cases once in a while.

4. Your Patience – Some clients are so desperate to get a case settled that they will take an early settlement that may not be as much as they could ultimately receive if they relied on their legal counsel’s best advice. Some unscrupulous insurance companies will offer a meager settlement to desperate victims in order to protect their bottom line. If you have confidence in your legal advisor, be sure to exercise patience in waiting on the best settlement you can receive.

Be sure to keep these issues in mind if you are involved in any car accident suit so that you know what to expect. If you know realistically how long does it take to settle a car accident case, you won’t be as apt to make a poor decision that could negatively impact your future.

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