Blog

Aug 3, 2014 - Medical Malpractice by Cross & Smith

In most medical malpractice actions, expert testimony is essential for the plaintiff as a precursor to submission of a claim to a jury for determination on the merits. Absent the testimony of an expert witness on behalf of the plaintiff, most judges won’t allow the medical malpractice case to move forward. Tuscaloosa medical malpractice lawyers recognize one major exception:  the common knowledge challenge. This rule holds that even though there is a general prerequisite for expert testimony to establish the standard of care and its breach in malpractice cases, this kind of expert testimony isn’t required when the subject of the substandard conduct is within the common knowledge of persons who aren’t medically trained. In other words, it’s fully comprehensible to ordinary, non-medical members of the public. An example might be a dentist who takes out the wrong tooth or a surgeon who accidentally leaves an instrument inside a patient’s body. These cases would be relatively straightforward. Still, the expression “common knowledge” makes the whole process sound less challenging than is the reality. Expert medical witnesses are costly, and it can sometimes be difficult to find one who is both qualified and willing. It’s important not to spend time and money at the early stages if it isn’t necessary. However, there is a general lack of consensus among courts as to what qualifies as “common knowledge,” leaving the interpretation sometimes open, and varying from judge to judge or court to court. One Tennessee appellate court judge was quoted in 1978 […]

Aug 1, 2014 - Nursing Home Neglect by Cross & Smith

One of the worst parts about the disease of Alzheimer’s is that it transforms the sufferer into a shell of his or her former self. Behaviors in which they might never have engaged previously now become commonplace as a side effect of the disease. Unfortunately, one of the most commonly-cited behaviors among patients is aggression. Stemming often from fear, confusion, or an unexpected change in routine, Alzheimer’s and other dementia patients have been known to lash out by kicking, biting, scratching, hitting, punching, and flailing. What the California Supreme Court recently ruled in its 5-2 decision in Gregory v. Cott was that in-home caregivers who agree to provide care for these individuals are not entitled to sue them, their loved ones, or their estate for injuries inflicted by a patient. The reasoning was that those hired specifically to assist these disabled persons can’t sue when they encounter a hazardous condition they are paid to confront. (The same reasoning had already been applied to nursing home staffers encountering such conditions.) However, our Birmingham nursing home abuse lawyers know that, by this logic, a patient in a nursing home setting should expect to be protected against other patients who display aggression. This is because, unlike dementia sufferers, nursing home administrators are fully aware and cognizant of the risk posed by certain patients. They also, armed with this knowledge, have a duty to protect patients from potential harm. That means facilities have a duty to recognize and address aggressive behaviors in residents. That […]

Jul 24, 2014 - Nursing Home Neglect by Cross & Smith

A case of alleged nursing home neglect may proceed to trial after the Wyoming Supreme Court determined that, although the claim failed to meet technical statutory and constitutional requirements, the defendant did not adequately raise such deficiencies. Our Tuscaloosa nursing home neglect attorneys understand this was essentially a case where a technical failing on the plaintiff’s part was negated by a technical failing by the defendant. Given that many for-profit nursing homes have deep pockets and can afford a top-notch defense, most plaintiffs can’t afford to make such errors. This is why it’s imperative to take your case to a lawyer with extensive experience and proven success. The case of Harmon v. Star Valley Med. Ctr. began as many instances of litigation surrounding Alabama nursing home neglect do:  with a fall. The Centers for Disease Control and Prevention have found that the average 100-bed nursing home in the U.S. reports between 100 and 200 falls every year. Unfortunately, the vast majority of falls go unreported, and far too many patients lack the capacity to report on what has happened to them. Nursing homes have a responsibility to prevent falls by recognizing when patients may be at risk for such issues. They also have a duty to respond quickly and appropriately when they occur. Failure to do so may amount to negligence. While not every nursing home fall is worthy of a lawsuit, one that results in serious injury or death requires careful review by a legal professional. In the Harmon […]

Jul 20, 2014 - Truck Accidents by Cross & Smith

The U.S. Department of Transportation took nearly 300 commercial truck drivers off the road in June for violating the Federal Motor Carrier Safety Administration’s drug and alcohol policies. The two-week enforcement blitz targeted motor carriers in violation of federal drug and alcohol testing requirements. In all, 128 companies face enforcement action. The feds were also looking to identify commercial bus and truck drivers who jump from carrier to carrier in order to avoid drug testing and reporting requirements. “All drivers and their passengers deserve to be confident that bus and truck drivers are safe and sober,” said U.S. Secretary of Transportation Ray LaHood. A total of 287 drivers face fines and may be barred from operating a commercial motor vehicle. A 2/car-accidents/alabama-traffic-accidents-likely-to-increase-with-economic-recovery/ study by FMCSA found drug use was the most common cause of trucking accidents — Prescription or illegal drug use was involved in 26 percent of trucking crashes.

Jul 18, 2014 - Dangerous Products/Liability by Cross & Smith

A large portion of Alabama residents pride themselves on being owners of firearms. Assuming they are not felons and lack a substance abuse or mental health issue, that is their Constitutional right. However, it’s no secret guns can be incredibly dangerous. In some cases, they are manufactured in a way that makes them unreasonably dangerous. Our Birmingham dangerous products lawyers recognize that it’s not enough to prove someone was seriously injured or even killed with a firearm. In a case alleging product liability involving a gun, one must be able to prove that the weapon was unreasonably dangerous when used appropriately. Alabama law requires that products be fit for the ordinary purpose for which such goods are used. However, there have been some cases in which “ordinary purposes” have been shown to mean not only the use intended by the manufacturer or seller, but those uses that are reasonably foreseeable.

Jul 16, 2014 - Premises Liability by Cross & Smith

The Alabama Court of Appeals has reversed a trial court verdict in favor of a shopper who brought a premises liability claim against a retailer after suffering injuries when struck in the face by a mounted metal bracket. Tuscaloosa premises liability lawyers understand the court determined the only way the plaintiff in Burlington Coat Factory of Alabama LLC v. Butler might have proven her case would have been based on the doctrine of res ipsa loquitur, which was not asserted and was likely not applicable. The phrase is Latin for “the thing speaks for itself.” In legal cases, it is the theory that one can be negligent if he had exclusive control over whatever caused the injury, even when there is no specific act of negligence alleged. Instead, the plaintiff in this case had asserted theories of negligence or wantonness. While the trial court dismissed the wantonness claim at the conclusion of the trial as a matter of law, she was awarded $26,000 in damages for her negligence claim. The appellate court reversed, agreeing with the defendant that there was not enough evidence to show that the product was dangerous or defective or that employees on site had been negligent in their installations or inspections of the device.

Jul 15, 2014 - Workers' Compensation/Work Injury by Cross & Smith

For years, courts in Alabama held that workers who suffer a job-related injury may not collect compensation for attendant care by family members if it does not serve to improve the disabled employee’s condition. When it serves only to prescribe the facility of independent functioning, the courts held it’s generally not covered, unless it serves to prevent the deterioration of one’s condition. That changed in 2008 with the decision in Ex parte Mitchell, when the Alabama Supreme Court held this was too restrictive and not in line with legislative intent. Therefore, care that serves to prevent deterioration and preserve function is also covered. Our Birmingham work injury lawyers understand this was what was at issue before the Alabama Court of Civil Appeals in the case of Alabama Forest Products Industry Workers’ Compensation Self-Insurer’s Fund v. Harris, an appeal that arose from the Marengo Circuit Court.

Jul 2, 2014 - Premises Liability by Cross & Smith

A woman slipped and fell inside a bar and sustained serious injuries. The bar was found liable and ordered to compensate her $500,000, plus $112,000 in prejudgment interest. However, the company’s liability insurance maxed out at $500,000 per person per incident. How could the plaintiff collect? Tuscaloosa slip-and-fall lawyers note that in Graf v. Hospitality Mut. Ins. Co. she sought a writ of attachment on the bar’s liquor license in order to secure the excess judgment. A writ of attachment is a court order to “attach” or seize an asset. A prejudgment writ of attachment can be used prior to the conclusion of a case, while the outcome is pending, to freeze assets and ensure compensation will be available to the plaintiff in the event he or she is awarded damages.

Jun 23, 2014 - Medical Malpractice by Cross & Smith

In Alabama medical malpractice cases, there are strict rules governing what type of evidence the jury will be allowed to weigh. Generally, hearsay – or out-of-court statements or statements otherwise not of one’s direct knowledge – is barred, unless the statements fall under one of the noted exceptions as explained under Federal Rules of Evidence Rule 803. Birmingham medical malpractice lawyers know that statements made for the purposes of medical diagnosis or treatment may fall into this exception. The 1987 Alabama Supreme Court ruling in Seaboard System RR, Inc. v. Keen established that such statements would be admissible – but only if made to a physician. However, Rule 803(4) expands this definition, and allows hearsay exceptions to be made to include all statements given for the purposes of medical diagnosis or treatment and/or to describe medical history or past or present symptoms or other details reasonably pertinent to treatment or diagnosis.

Jun 20, 2014 - Personal Injury by Cross & Smith

A bicyclist who suffered a fall and injury from her bicycle due to an allegedly defective university sidewalk sued the city for failure to maintain its roads. In later proceedings, the city sought to bring in the state as a third-party defendant to share the liability. In Madden v. City of Iowa City, the Iowa Supreme Court affirmed the trial court’s denial of the state’s motion to dismiss the cross-claim, finding a city ordinance could establish duty on the part of the state, and the claim of contribution of liability was not excluded under the state’s tort claims act. Tuscaloosa bicycle accident attorneys recognize the relevance of this case to those who typically commute on bicycles at The University of Alabama. Previous case law in Alabama supports the idea that municipalities and state governments can be held accountable for injuries sustained by negligent maintenance of public roadways.