Frequent Questions
Personal Injury Frequently Asked Questions of South
Florida
Serious Injury Attorney David I.
Fuchs
The following information includes frequently asked personal
injury questions. The answers stated are general in nature and are
not intended to apply to every personal injury situation. Each case
is different and carries its own set of circumstances which must be
taken into consideration by competent legal counsel. By contacting
Florida personal injury Lawyer David I. Fuchs, you can receive
a personal consultation regarding your specific legal claim.
What is Personal
Injury?
Personal injury is any physical or mental injury to a person
that results from another person’s negligence or harmful act.
Personal Injury involves civil law cases as opposed to criminal law
cases which involve a defendant and the State of Florida. Personal
injury often refers to bodily injury and can occur in a wide
variety of ways. The following are some of the most common
accidents resulting in personal injury:
- Auto Accidents
- Other Vehicle Accidents (Aviation, Bicycle, Boat, Motorcycle,
Railroad, Truck)
- Burn Accidents
- Construction/On the job Accidents
- Dangerous or Defective Products
- Dog/Animal Bites
- Medical Malpractice (Birth Injuries, Misdiagnosis, Surgical
Negligence)
- Nursing home abuse and Neglect
- Slip and Fall Accidents/Premise Liability
- Spinal Cord Injury
- Toxic Exposure
- Traumatic Brain Injury
- Wrongful Death
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What
financial compensation can I recover in a personal injury
claim?
Personal injury accident victims are entitled to recover
monetary damages for all losses and expenses sustained as the
result of an accident. Depending upon the particular circumstances
of your case, damages may include recovery for any of the
following:
- Medical bills
- Lost income, including overtime wages
- Pain & Suffering
- Physical Disability
- Disfigurement
- Emotional Trauma
- Mental Disability
- Property Damage
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What are
Negligence Defenses?
In the case of negligence, damages awarded for a negligence
claim may be reduced if there existed some type of contributory or
comparative negligence. In some cases, if an assumption of risk was
involved, the case may be dropped or the award reduced depending on
the circumstances.
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What is
Contributory Negligence?
The term contributory negligence is used to describe the actions
of an injured person that may have also caused that person's own
injuries. For example, a person who ignores a "Wet Floor" sign and
slips and falls in the supermarket may be found to have been
careless and at fault for any injuries sustained. Contributory
negligence can prevent a person from collecting any monies to
compensate for injuries suffered, even if that person's
carelessness was minor. Some states have done away with the concept
of contributory negligence and instead use the concept of
"comparative negligence."
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What is
Comparative Negligence?
Comparative negligence works on a percentage basis to assign a
degree of fault for the injuries sustained. For example, a
plaintiff in a products liability case cannot be found more than
fifty percent at fault in order to be compensated for their
injuries. If a plaintiff is found to be fifty-one percent at fault,
he or she will not receive any damages for said injuries.
Plaintiffs who are found to be less than fifty-percent at fault,
however, are awarded compensation in accordance to their percentage
of fault.
For example, a person slips and falls on a wet supermarket floor
and is awarded $100,000. The supermarket is found to be
eighty-percent responsible for the accident because of dangerous
floor conditions. However, the injured plaintiff is found twenty
percent responsible for not exercising caution, so the award is
reduced to $80,000.
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How do I prove
negligence?
The burden of proof in a tort case, as in most civil law cases,
is lower than the proof required in criminal law cases. In a
criminal case, the state must prove a person's guilt beyond a
reasonable doubt. To win a personal injury lawsuit based on tort
law, the plaintiff need only prove that a majority of the evidence
shows that an injury was caused by the defendant's negligent
actions. This standard of proof is called "the preponderance of the
evidence." The different burdens of proof mean that a company might
be acquitted of criminal charges stemming from its actions, but be
found liable in a civil lawsuit stemming from the same actions.
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What is premises
liability?
Premises liability generally refers to accidents that occur due
to the negligent maintenance, or unsafe conditions upon property
owned by someone other than the injured victim. The State of
Florida requires landowners to maintain their property in a manner
that does not cause injury to those that, for various reasons,
visit the property. This law pertains to both business owners and
homeowners. Crucial to a premises liability settlement is being
able to show how long the defect or injury inflicting element was
there, how visible it was, and how much notice the owner had of the
dangerous condition before the accident.
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Can a property
owner use deadly force to defend their property?
No, a property owner may not use deadly
force to defend their property. The life, health and safety of an
individual, albeit an intruder, is considered to be more valuable
to society than the material possessions in which that individual
is trying to steal. However, a property owner is not prohibited
from defending said property from another. For example, a property
owner is entitled to use reasonable force to prevent someone, or
something, from entering their property, or to remove someone from
their property. Only the use of force calculated to do great bodily
injury, or cause death, is not permitted.
However, there are legal loopholes to these guidelines. If an
intruder threatens personal safety, or is committing a forcible
felony, deadly force may be appropriate. For example, if a robber
enters a home and, while stealing items, attempts to rape the
property owner, the owner may be legally justified in shooting the
robber.
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What should I do if I've
been injured in a slip & fall accident?
Most businesses and homeowners carry liability insurance to
protect them in the event that someone is injured while on their
property. The owner or possessor of a residence, land or place of
business has the duty to exercise reasonable care for the
protection of those individuals who are invited to come upon the
premises; i.e. individuals visiting for business or pleasure. In
such cases, the owner, company or person must inspect the premises
to discover any dangerous conditions and warn the invitee of
dangers upon said premises. Those injured by a negligent owner or
possessor of a premise may recover damages for their injuries,
including loss of income, medical expenses, pain and suffering,
etc.
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What should I
do if I've been injured in an automobile accident?
When a motor vehicle is in an accident, it is important that
certain action is taken. The name and address of the operator of
each vehicle should be obtained. Additionally, the name and address
of the owner of each vehicle involved should be obtained and
license plate number of all vehicles should be recorded. Lastly,
the name of the automobile insurance company for each vehicle
should be obtained. If possible, obtain the names, addresses and
telephone numbers of any witnesses to the accident.
If there has been any type of injury, the police should be
called to investigate the accident. The police officer will write a
report which includes the details of the accident and the nature
and extent of any damages and injuries. Insurance companies will
require that a report of the accident be obtained before providing
any benefits. It is most important to immediately contact your own
motor vehicle insurance company to report to them any property
damage or personal injury. If you or a family member is injured in
a motor vehicle accident, prompt medical attention should be
obtained.
If you are seriously injured in an automobile accident as the
result of someone else's negligence, please contact
Florida personal injury Attorney David I. Fuchs, today, for
more information.
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What is Assumption of
Risk?
If you have knowingly and voluntarily assumed the risk inherent
in a particular action that caused an accident, you cannot sue
another person for negligence. For example, if you went to a
friend’s house and they told you not to go out the backdoor because
the deck was being repaired and after being told you still went out
the backdoor, you assume the risk. If you become injured in most
jurisdictions, under the doctrine of the assumption of risk, you
would most likely not be able to collect damages.
Another example of assumption of risk is participation in a
sport in which certain risks are inherent to the game. For example,
if you are playing football and you get tackled and break an arm,
you may not sue the person who tackled you. On the other hand, if
you are playing tennis and a fight breaks out and you injured as a
result of the altercation, you may be able to sue the person who
injured you, since the assumption of risk does not cover any injury
that was intentionally inflicted and not an inherent part of the
game.
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What is
Liability?
The term liability generally means that an individual, company
or some other entity may be obligated to pay damages or
compensation to another. The negligent driver, manufacturer or
seller of a product may be responsible or liable to pay for
damages, including pain and suffering and financial losses, if they
are caused by their carelessness.
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What is strict or
absolute liability?
Strict or absolute liability means that the defendant is
responsible for injuring another person regardless of negligence or
intent. It means that the manufacturer of a product is liable for
selling any defective product that is considered "unreasonably
dangerous" and results in injury either to the buyer or someone
else who uses it. In strict product liability, it is unnecessary to
prove that the manufacturer was negligent; all you have to do is
show that the product was defective, that it was allowed to be
sold, and that the injuries were caused by the defect in the
product.
Some instances in which the law might apply strict liability are
with regard to product liability, abnormally dangerous or
ultra-hazardous activities, and animal owner's liability. For
example, a plaintiff may be entitled to compensation after a
defective product injures him or her regardless of whether the
manufacturer was actually negligent.
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What is
Intentional Misconduct?
Intentional misconduct is a deliberate action resulting in an
injury to another person or damage to another person's property. A
plaintiff alleging intentional misconduct need not compare the
defendant's actions to those of a reasonable person; he or she only
must show that the defendant intended his or her actions. In a
civil lawsuit in which the plaintiff alleges intentional
misconduct, the plaintiff can recover punitive damages in addition
to awards for injuries, pain and suffering.
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What is the
Statute of Limitations?
Every state has certain time limits, called "statutes of
limitations," that govern the period during which you must file a
personal injury lawsuit. In some states, for example, you may have
as little as one year to file a lawsuit from an automobile
accident. When the statute of limitations expires on your case, you
simply don't have a case anymore.
Statutes of limitations differ not only from state to state, but
also in regard to the kinds of lawsuits involved. In some states
the statute of limitations for medical malpractice, suits against
governmental agencies, and wrongful death actions is shorter than
that for other types of personal injury cases. In general, however,
the statute of limitations for personal injury cases is from one to
three years, and the time begins from the time of the accident. For
more information regarding the limitations for your specific case,
please contact
Florida personal injury Lawyer David I. Fuchs.
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How long will it take
to settle my claim?
The time it takes to settle a personal injury case depends on
the circumstances surrounding the case. The more complex the case
the longer it may take to settle. Many cases can take anywhere from
3 to 18 months to settle depending on its complexity.
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What is a
tort?
A tort is a civil wrong recognized by law as grounds for a
lawsuit. Torts fall into three general categories: intentional
torts (e.g., intentionally hitting a person); negligent torts
(e.g., causing an accident by failing to obey traffic rules); and
strict liability torts (e.g., liability for making and selling
defective products). These wrongs result in an injury or harm
constituting the basis for a claim by the injured party (tort
litigation).
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What are Toxic
Torts?
Toxic torts are caused by exposure to toxic or dangerous
substances, chemicals, dangerous forms of energy, and medical
products or devices. Toxic tort cases are usually brought as class
action lawsuits, because usually the same toxin affects large
numbers of people.
Plaintiffs who win toxic tort lawsuits can recover monetary
damages for past and future medical expenses, past and future pain
and suffering, lost wages, loss of future earning capacity, loss of
enjoyment of life, emotional distress and sometimes punitive
damages.
Because the effects of toxic substance exposure may take years
to manifest, it may be months or years before the toxic tort case
is actually litigated. Examples of toxic tort cases include, but
are not limited to:
- Asbestos
- Chemicals
- Pharmaceuticals
- Cosmetics
- Pesticides
- Radiation or Electromagnetic Energy
- Medical Products and/or Devices
- Well Water Contamination Caused by Oil, Gas or Other
Toxins
There are many different ways to establish liability in a toxic
tort case including negligence, premises liability, breach of
warranty, misrepresentation and products liability. In litigating a
toxic tort case, the plaintiff must prove that:
- He or she was exposed to the toxic substance, energy, product
or device
- The defendant(s) caused his or her injuries
- He or she suffered damages from exposure to the toxic
substance, energy, product or device
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What is Toxic Mold
Litigation?
A related practice area is toxic mold litigation, where the
exposure is to toxic molds rather than toxic substances, energy,
products or devices. Molds are microscopic fungi that need plant
and animal matter in order to grow. Molds are found in almost every
environment outdoors, and in homes and buildings. Household molds
exist in colors such as red, green, blue-green, brown and black.
Most molds pose little or no health risks to people, but exposure
to some molds (including two household varieties) can cause severe
health complications and even death for infants and sensitive
individuals. A few examples of toxic molds include:
- Aspergillus
- Fusarium
- Memnoniella (toxic household mold)
- Paecilomyces
- Penicillium
- Stachybotrys (toxic household mold)
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What are
Aviation Accidents?
Aviation accidents occur in a variety of different situations.
While the most common aviation accidents are those involving
commercial airlines, many accidents occur with private airplanes,
as well as commercial and private helicopters. The leading causes
of commercial airline accidents include engine failures, controlled
flight into terrain, approach and landing, loss of control, runway
incursions and weather (including turbulence). Private or "general"
aviation accidents can include controlled flight into terrain,
weather, loss of control, and runway incursions.
Depending on the circumstances surrounding the accident, the
investigation is conducted by one or more of the following
agencies: National Transportation Safety Board (NTSB), Federal
Aviation Administration (FAA), Transportation Security
Administration (TSA) and Federal Bureau of Investigations (FBI).
But, accident investigations may also involve foreign or local
authorities, or the Departments of Justice, State and/or Defense.
Agencies such as the American Red Cross, Department of Health and
Human Services, and the Federal Emergency Management Agency may
also be involved in providing services to victims and their
families.
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What is Nursing Home
Neglect?
The State of Florida has special laws enacted for the specific
purpose of protecting the elderly population (over 65) and
dependent adults. These laws were designed to encourage victims and
their attorneys to pursue legal cases against all persons or
entities that abuse or neglect this vulnerable segment of society.
Elder, disabled and dependent adults depend on nursing homes to
provide most if not all of their daily care, which includes food,
water, medicine, toileting, grooming, social and physical
stimulation, as well as regularly being turned in their beds.
However, because nursing homes are not sufficiently staffed, and
the staff there is generally underpaid, millions of elder and
dependent adults are currently being neglected and abused. Signs of
nursing home abuse and neglect include:
- Bed sores (pressure sores, decubitus ulcers)
- Burns
- Rapid weight loss
- Unexplained bruises
- Emotional withdrawal
- Malnutrition or dehydration
- Heavy sedation
- Inability of caretakers to explain patient’s condition
Whether it is a single incident that causes injury or recurrent
neglect or abuse, the victim or his/her next of kin has a right to
bring claims against the nursing home under the nursing home
neglect laws. If the nursing home is found to be negligent or
abusive, the victim and/or next of kin will generally be awarded
monetary compensation and the nursing home could potentially lose
its certification for failing to supply the expected care (leading
to a loss of federal funding).
The best prevention of neglect and abuse is attentive family
members, who, on an ongoing basis, are aware of the general health
of their vulnerable relatives. If you suspect that you or a loved
one is or was subject to an abuse or neglect, it is important to
report that abuse or neglect right away.
Florida nursing home abuse Attorney David I. Fuchs has
prosecuted many cases involving the abuse or neglect of the elderly
and dependent and provides free consultation to any individuals who
believe that abuse or neglect may have been committed.
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What is Wrongful
Death?
Wrongful death occurs when a person's death was caused by the
negligent, willful, or wrongful act, neglect, omission, or default
of another, such as careless driving or a deliberate murder. In
addition to injuring the person who died, people who depended upon
the deceased for financial or emotional support may be entitled to
compensation for the wrongful death. The State of Florida has
enacted a statute permitting a lawsuit to be brought by the
relatives of a person who died as a result of a wrongful act.
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Under what circumstances
can a wrongful death occur?
Wrongful Death Law provides financial compensation to the family
of a person whose death was caused by the negligent, willful or
wrongful act of another. Wrongful death cases are filed as a result
of a variety of situations, including:
- Medical malpractice resulting in decedent's death
- Neglect or abuse on the part of a nursing home that results in
decedent's death
- Automobile, bus, train, airplane or other common carrier
fatality accident
- Occupational exposure to hazardous conditions or substances
(exposure to asbestos, etc.)
- Death during a supervised activity (sports tournament, field
trip, etc.)
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What is
medical malpractice?
Medical malpractice is negligence committed by a professional
health care provider-a doctor, nurse, dentist, technician,
hospital, or hospital worker-whose performance of duties deviates
from a standard of practice of those with similar training and
experience, resulting in harm to a patient or patients. Most
medical malpractice cases are based on the concept of
negligence-that is, the patient was harmed because the health care
provider failed to meet the required standards of skill and care,
in accordance with generally accepted standards. Instances of
malpractice might include cutting off the oxygen supply during
surgery, misdiagnosing an injury because routine tests and
procedures were not followed, or prescribing an illegal drug or one
not approved for the patient’s condition.
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Does someone who is
simply not satisfied with the results of surgery have a malpractice
case?
No. In general, there are no guarantees of medical results, and
unexpected or unsuccessful results do not necessarily mean that
negligence occurred. To succeed in a medical malpractice case, a
plaintiff has to prove that a medical injury or related damages
resulted from the doctor's deviation from the standard of care
pertaining to the procedure, not that the results from a
standardized medical treatment were unsatisfactory.
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What is a Contingency
Fee?
A contingency fee is an industry standard fee that is applied to
personal injury cases and is dependent upon the successful
resolution of your case. A contingency fee is a percentage of the
monetary recovery obtained by counsel on a client's behalf and is
only paid if and when counsel is successful in obtaining monetary
recovery, whether through settlement or litigation. The
industry-standard contingency fee is about one third of the awarded
settlement. A contingency fee is the form of payment earned by a
lawyer when he or she states that "there is no fee unless we win
your case."
Florida personal injury Attorney David I. Fuchs uses
contingency fees for his personal injury cases and will not charge
you for services rendered unless you are awarded monetary
recovery.
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How do I know if I
need an attorney?
If you have been seriously injured in South Florida, or within
the surrounding areas of Florida, and are unsure about the outcome
of your injury, consult with an experienced personal injury
attorney as soon as possible. Make sure this is done before you
give any official statements or sign papers of any kind. Florida
laws require filing a lawsuit within a specific period of time.
Depending upon the circumstances of your case, you may be
prohibited from filing a lawsuit and obtaining any compensation for
your injuries.
Serious injury Attorney David I. Fuchs can advise you on the
applicable statute of limitations for your injury case.
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