Personal Injury Primer Podcast: 2022 Update
On June 13, 2019 our law firm launched the Personal Injury Primer podcast. Our mission was to break down the law into simple terms, provide legal tips, and discuss topics related to personal injury law. It’s been over three years now and we’ve recorded close to 200 episodes. Plus we’ve compiled those episodes into three books (Vol 1, Vol 2 & Vol 3).
And in that time the podcast has grown an audience all over Indiana and beyond. In fact, Feedspot has ranked Personal Injury Primer as one of the best personal injury podcasts to listen to. Our podcast is currently listed at the number 3 spot. If you enjoy the podcast click the Feedspot link and press the +Follow button, maybe one day we will be higher than #3.
If you’ve listened, thank you. If not, I’ve included the transcripts to seven episodes below that I believe you might enjoy.
Today’s question comes from a listener who would like to know their options if no police report was made of a pedestrian knock-down incident where they initially thought they were not injured.
This is a question that we get frequently.
First, it’s not uncommon to suffer a trauma that appears to be minor only to find that days later you have in fact suffered an injury. Most doctors tell us that it sometimes takes as much as two weeks for injuries to appear following a trauma to the body. So quite often people will suffer a trauma due to another person’s carelessness, and think there’s no need to call the police or document what happened.
Obviously, obtaining a police report to document an incident, even when you are not clear that you are hurt, is important and is what we recommend. If you end up not being hurt, you’ve just wasted a few minutes talking to a police officer, getting the name of the other party involved, as well as the name of the insurance company for the other party involved.
But, if there is no police report, you still may be able to make a case.
We have found that with the low cost of security cameras, in many parking lots for grocery stores, gas stations, pharmacies, shopping centers, and the like, there will be video footage showing the incident involving the knockdown of the pedestrian. Often the video is not great, but it can be just enough to allow an attorney to track down the responsible party.
For example, typically there is a time and date stamp on a video. Sometimes it’s possible to see a license plate on a video. The date and time stamp alone provides the opportunity to go into the store and see if there are records of a transaction. A credit card used to make a purchase can lead to the names of individuals who were present at the time of an incident.
So, the bottom line is that it is very important to get a police report, but all is not necessarily lost if you did not get one. Even your own purchase stub can help show the date and time of when you walked out of the store. That then can be cross referenced against the cameras inside the store at the cash registers. Perhaps if your attorney obtains the video, when you watch the video you can identify the driver of the car standing in the checkout line before the incident. That in turn, enables the storekeeper to further narrow down who it was that was involved in the knockdown incident.
Today’s question comes from a listener who would like to know their legal rights when a pharmacy dispenses the wrong medication, or the wrong dose, or provides medication to which the patient is flagged as being allergic.
Over the years, our firm has helped numerous people who were harmed by improper fulfillments of prescription medication.
In some instances, the totally wrong product is dispensed to a patient. At other times, a pharmacy dispenses a medication that has an ingredient which is a known allergen to a patient, and the patient’s specific allergy has been noted by the pharmacist, yet the pharmacist ignores the noted allergy warning for the patient and dispenses a medication with that allergen in it anyway. Still other times, an incorrect dosage is dispensed to a patient.
In each of these cases, it is important to carefully analyze whether a mistake is due to the pharmacy, or whether the mistake is due to a poorly written prescription. Or due to miscommunication between the physician and the pharmacist.
Since many communications between doctors and pharmacists are now electronic, medication dispensing mistakes are less frequently due to poorly handwritten prescription notes.
One of the key things to keep in mind in these types of situations is that a pharmacist has an obligation under the law to follow a doctor’s instructions in dispensing a prescription. If there is an allergy, or if there is a particular type of product that that the patient is allergic to, that restriction must be followed by the pharmacist, and if it isn’t followed, and the wrong drug is dispensed, or the wrong dosage amount of the correct drug is dispensed, the pharmacy can be held legally responsible.
Today’s question comes from a person who called to say “I hired a law firm and found out later that it was a fake law firm, what can people do to avoid being scammed by a fake lawyer through a fake website?”
Well, unfortunately this is becoming a problem across the US.
Several times a week we get people calling us about being ripped off by a fake lawyer or law firm. Yes, I did say fake.
Apparently through the power of “cut and paste” websites these “want to be” lawyers have convinced people to hire them.
One caller said she shelled out hundreds of dollars just to tell her story. And, they wanted even more money to start her claim.
Another caller revealed he had given someone he thought was a real attorney, his credit card number only to be swindled out of thousands of dollars. He then had to spend countless hours trying to rescind all the bogus charges racked up on his card.
A caller just the other day said the firm they had thought they “hired” had the name of a once legit firm out of New York that had filed bankruptcy so she thought the person she hired was a legitimate attorney. She had lots of phone calls. Never signed anything though.
You might be thinking, “why didn’t these people do their due diligence?” Why didn’t they check these attorneys out?
Well, from experience, I can tell you that when we receive a call from someone who has been injured, they are not thinking as a cautious person would think.
For the most part their guard is down.
They are looking for answers. They want direction. They think that if a person has a web-site they must be legitimate.
They want to hear that someone is going to help them, represent them and defend them.
They want to know that the person will be there every step of the way.
Sadly, if the person they are calling gives them that sense of security, that everything is going to be alright, it makes it easier for the scam to occur.
Look up the definition of the word grifter. These fake law firms prey upon people and gain their confidence.
The fact is, that rarely do people ever look for an attorney unless they are facing some crisis, injury or injustice.
Unfortunately, by then, their cognitive thinking is in panic mode and they are scrambling to find someone.
In some areas of the United States the amount of phony legal firms being reported is almost 1 a day.
So how do they do it? How do they convince people to call them?
These con artists create bogus websites, filled with copied images, slogans and even names of real lawyers to give an air of credibility. Some of these sites have even mirrored articles, cases and even testimonials off real law firm sites to add to the illusion of being a legitimate firm.
So how do these fake lawyers make money?
Well, these scammers require up-front funds.
They state these fees are for processing your case, for administration work, or the cost to pull your file.
But once they get the money, they come up with excuse after excuse why your case has slowed down or they just don’t return your calls at all.
Here are 8 tips to avoid being taken by a fake law firm.
1) Meet your lawyer in person at their office. Offices are harder to fake then websites.
2) Never pay an attorney online or over the phone.
3) Ask around, get a referral from someone you know and trust.
4) Dive deep into the prospective lawyer’s online reputation; notice inconsistencies. For example, we have 80 videos on YouTube. We have more videos on our website. We have this podcast. We are in short, everywhere. … Duplicating that kind of a web presence and online reputation would be extremely difficult and probably more costly than what they expect to make off of the scam.
5) Ask a lot of questions, look for answers that make sense.
6) Hire a Board Certified Civil Trial Attorney.
7) Look for an attorney with an honest and ethical reputation.
8) Select a lawyer who can explain the law to you in a clear concise manner. … A fake attorney unlikely would be able to explain the law.
When it comes time to select the right attorney for your needs you need to have the knowledge to choose wisely and get the absolute best representation for your case.
For us, the whole team here at the Law Offices of David W. Holub, we believe first and foremost hiring an attorney should be a matter of trust.
Today’s question comes from a person who called to say her brother was in an auto accident few days ago, and a day after he left the ER the other driver’s insurance company called and offered him $4,000, plus agreed to pay double that in medical bills, if the bills were submitted within 60 days, and all he had to do was sign a release, this all made the caller suspicious and she decided to call an attorney to get some answers.
This caller is very perceptive and quite right to be suspicious.
Whenever an insurance company wants to give you something in exchange for a release, you can bet your last dollar that it is doing it solely for its own financial gain and benefit, not yours.
Think about what the insurance companies accomplishes if it gets an injury victim to sign a release based on the type of offer made to this caller’s brother.
First, it is closing out any potential for a lawsuit within 60 days. The law provides that a party can sue for up to two years in most cases for injuries they have received in a crash or similar circumstance. Why does the law allow for two years? Well, very often it’s difficult to determine the extent of a medical injury within a short period of time like 60 days.
For example, in many auto crashes, it takes a couple of weeks to get an appointment with a family physician. Then once you see that physician, a few more weeks passes before you can get into have an x-ray or MRI image taken. Then you have to go back to the doctor again to have the doctor consult with you and review the screening images to determine treatment protocols.
Before you know it, within a very short time you could be beyond that 60-day time window, and not have a good handle at all on how seriously injured you might be.
Second, by entering such an agreement you cap the amount of money you can ever recover from the insurance company and defendant driver. That again is to the insurance company’s benefit.
For example, in the typical case the amount of money that you can recover for an injury is limited only by what a jury might decide after hearing all of the evidence about your medical condition.
Why would an insurance company want to put a cap or limit on its liability?
Easy answer, because it’s job is to make the most money for the shareholders of the company and to preserve company assets.
Any number of things can go wrong during what may seem like routine medical treatment. A person can develop a life-threatening blood clot for example, that leads to potential serious injury or death.
Sometimes a surgical procedure might at first appear to be a success, but later we find that something about the surgery did not go right.
The other day, for example, a woman called after having back surgery soon after an injury that seemed to be a success, but a short two months later, the hardware implanted near her spine broke and screws came loose, and a new surgery, well beyond 60 days after the crash, had to be performed.
Bottomline, you can bet that the insurance company is not doing you any favors when it tries to get you to sign a release and severely limit the damages that it might be required to pay out on a claim.
If they make such a proposal to you it is always smart to consult an attorney. Most lawyers will be happy to speak with you for free.
Today’s topic is medical malpractice.
A decade ago, if I told you 1 out of every 20 patients had been misdiagnosed by their treating doctor, you might be shocked at that statistic. But it is accurate. And that number accounted for close to 12 million mistakes that patients had to either accept or challenge in court.
Fast forward to the present, and those statistics have worsened exponentially for patients. Add in the pandemic and the protocols that have been put into place before a patient can enter a building, and you would think mistakes would decrease. But unfortunately, that’s not the case.
In most hospital settings, doctors typically have just 10 minutes with a patient. That’s not enough time to assess a patient, determine what is wrong and provide a treatment course appropriate for their ailment. Often, the doctor is rushed. The patient doesn’t have time to explain their concerns. So the patient accepts what the doctor says and hopes for the best.
That’s not how it should be. Doctors know they need to slow down and spend more time with patients. Yet, they don’t. And over the last 30 years, misdiagnoses were the number one source of malpractice claim payouts.
Here are the top 3 malpractice allegations by percentage…
#1 – 31.8% Failure to Diagnose
#2 – 26.9% Surgical Errors and Mistakes
#3 – 24.5% Medication Errors
Misdiagnosing a patient is the same as failing to diagnose.
Physicians and hospitals rarely admit mistakes. Even in cases that seem clear cut, you can expect a defendant to fight any claim of wrongdoing.
We have successfully handled many medical malpractice claims ranging from birth injuries and brain injuries to cancer diagnosis and nursing home abuse. We also have taken medication dosage injuries and infectious disease claims.
Medical malpractice can apply to nurses, dentists, osteopaths, physical therapy facilities, and others providing health care. The challenges these cases present are varied, and our team will work aggressively to overcome them. We also have experts at our disposal to help get to the truth of what happened. Our experienced injury attorneys are skilled at securing favorable settlements and jury awards if a settlement is impossible.
Negligence by a medical professional could result from an error in diagnosis, treatment, or illness management.
Negligence is based on a failure to follow accepted standards of practice. For example, a hospital may provide improper care in not correctly assessing a fall risk resulting in a patient fall. There may be an error in dispensing medications, or a failure to maintain sanitation, or providing below standard nursing care.
The law involving medical malpractice is designed to protect patients’ rights to compensation if they are injured due to negligence.
But malpractice suits are rarely simple, and they are costly to fight. Sometimes the time and money needed to pursue compensation for an injury that is minor or heals quickly should not be spent.
If you believe you have a medical malpractice claim, it is essential to timely consult with an attorney who can help you determine whether your claim should be pursued.
Today’s question comes from a caller who wanted to sue her doctor for medical malpractice. She got copies of her own medical records because she was concerned about her medical care. But, she is distraught because she thinks the records have been fabricated. She wants to know if her concerns are justified.
Unfortunately, in medical malpractice cases, spoliation of evidence is an all too frequent occurrence.
Traditionally, spoliation of evidence is defined as the destruction of evidence. Or altering evidence to render evidence permanently unavailable to the court and the opposing party.
Estimates are that as many fifty percent of medical malpractice cases involve altered records. Some alterations happen by accident or to insert billing codes. But, as many as ten percent of malpractice cases implicate fraudulently changed records.
Spoliation may be accomplished by altering a medical record or adding to the document at some time after initial entry. However, it may also involve deleting information, fabricating a substitute record, and destroying radiology images, laboratory reports, or biopsy specimens.
Spoliation may involve physical destruction (shredding), alteration (creating a paper copy or erasing electronic records), or concealment of evidence.
Courts have fashioned several remedies for the harm caused by record alteration or destruction.
One remedy is a spoliation inference. Another remedy is sanctioning the responsible party.
Remedial measures are needed to help restore record accuracy, compensate the victim, and punish those altering records.
The spoliation inference permits but does not require the trier of fact to find that the evidence not produced was harmful to the party altering the record.
A presumption of spoliation requires a jury to find that the missing evidence was harmful to the party that altered it.
Traditionally, to apply the inference of spoliation, five elements must be established:
2) the destroyed information must be relevant to the case;
3) the destruction must be intentional;
4) the evidence must be destroyed when legal proceedings are pending or reasonably foreseeable; and
5) a party or its agent must destroy the records.
In almost every case of medical malpractice, an attorney should anticipate altered medical records. And work with witnesses and electronic record experts to determine if something was altered and when it was changed.
Today’s question comes from a caller who was hit by a drunk driver. She said at the DUI criminal trial, the defendant asserted his Fifth Amendment right not to testify. She wanted to know could the drunk do the same in the civil suit she wanted to hire us to file against the drunk driver?
A witness in a civil action may assert a privilege against self-incrimination.
The Fifth Amendment privilege against compulsory self-incrimination can be asserted in a civil or criminal, administrative, or judicial proceeding. It protects against any disclosures which the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be used against the witness.
But if a witness or party refuses to speak based on the Fifth Amendment in a civil case, won’t that look like something they have something to hide?
The answer is, of course, yes. So courts usually allow a jury, in a civil case, to draw an adverse inference from the witness’s refusal to testify.
Keep in mind such an inference would not be permitted in a criminal case.
This means that if a prosecutor refuses to prosecute a crime, for example, a gun discharging and resulting in injury, claiming that the evidence is too circumstantial to justify a prosecution. The victim might still sue in civil court alleging negligent discharge of the gun. Then at trial, the victim’s attorney could call the defendant, let him assert his 5th amendment privilege in front of the jury, and refuse to answer questions. The jury would then hear the refusal to testify.
Of course, if the criminal charge is concluded through a plea bargain or dropped, a civil court might well require the defendant to testify in the civil case. It would, of course, depend upon potential exposure to other criminal charges.
The Law Offices of David W. Holub is a personal injury law firm located in Merrillville, Indiana, focused on providing efficient and effective client-centered representation. Our mission is to provide top quality legal representation, which includes an uncompromising pursuit of our client’s legal interests, while being accessible and attentive to our clients during times of personal challenge.
The firm concentrates in personal injury cases of all types, medical malpractice, and wrongful death litigation. We work tirelessly to serve each client aggressively and with empathy, to communicate regularly and clearly, and to obtain prompt and favorable results, while adhering to the highest standards of excellence and integrity. Our team considers it a high honor to be called upon to serve our clients whom we often come to regard as our friends. Call our number (219)736-9700 for assistance today.
*If you would like to learn more about personal injury law, we encourage you to listen to our Personal Injury Primer Podcast where we break down the law into simple terms, provide legal tips, and discuss topics related to personal injury law. And read “Fighting for Truth: A Trial Lawyer’s Insight into What It Takes to Win” an entertaining and enlightening book pulling readers into the courtroom giving them a glimpse of the legal process and what it takes to win at trial.