CannonLaw Newsletter - August 2004
BEWARE OF LEAD POISONING
Lead is a highly toxic metal that can be found in many products and materials in our homes and businesses. The primary source of lead in the human environment is lead-based paint, but lead can also be found in the dust and soil where lead-based paints have peeled off or have been disturbed, as well as in some types of plumbing materials. Although Congress passed laws prohibiting the manufacture and use of lead-based paint in 1978, many buildings and homes built before this ban still contain significant amounts of lead-based paint.
Lead poisoning occurs when lead is absorbed by the body, primarily through breathing or swallowing airborne lead dust or lead paint chips. Children are particularly susceptible because they play on the floor or ground, and they are constantly putting their fingers or various objects into their mouths. Although lead poisoning occurs gradually, after repeated exposure young children will absorb about 50% of the lead that they ingest. Adults, because of physiological differences, will absorb only about 10%. Obviously, children are at much greater risk from lead poisoning than are adults.
If left untreated, lead poisoning has serious effects on the human body, depending on the length and level of exposure. Low levels of lead poisoning can cause developmental, learning, and behavioral problems, which are especially troublesome for children. High levels of lead poisoning can cause brain damage, mental retardation, anemia, liver and kidney damage, and hearing loss. The most severe cases of lead poisoning can result in brain swelling, convulsions, coma, and even death.
If you are unsure or just need peace of mind, have your home checked for lead by a qualified inspector. When renovating older homes or attempting to remove lead-based paint, hire a trained, experienced contractor who will take necessary precautions and properly clean up the area. Keep children away from areas that you suspect may be contaminated by lead, keep dust down by cleaning with lead-specific products, and wash your hands frequently. Finally, if you suspect that a loved one has suffered a lead-related injury, please call us so we can help you determine your legal rights. Depending on your circumstances, you may have a case against a manufacturer, contractor, landlord, or seller, and you may be entitled to recover money for your injuries.
SYMPTOMS OF LEAD POISONING
Common symptoms of lead poisoning in children are decreased appetite, stomach aches, sleeplessness, learning problems, constipation, vomiting, diarrhea, tiredness, lowered I.Q., and anemia.
Common symptoms of lead poisoning in adults are fatigue, depression, heart failure, abdominal pain, gout, kidney failure, high-blood pressure, wrist or foot weakness, reproductive problems, and anemia.
If you live or work in a home or building constructed prior to 1978 or if you feel you may have been exposed to lead, you should have a simple blood test performed by a medical doctor. If it turns out that you have been exposed to lead, the main treatment for lead poisoning is to stop the exposure, but there are also medications available that will lower the lead levels in the blood.
SEVERE INJURIES CAN OCCUR AT CHILDBIRTH
Pregnancy and childbirth have inherent risks and can result in complications and injuries to the mother and the child. All injuries suffered during birth are devastating, but some are the result of mistakes made by health-care providers. You may have a legal claim for damages for yourself and your child if a doctor or other health-care provider:
* fails to adequately monitor the mother's or child's condition;
* fails to choose appropriate procedures and treatment;
* fails to adequately diagnose and treat risks and complications;
* fails to consult specialists when necessary; or
* fails to obtain your informed consent prior to medical treatment.
Birth injuries reportedly occur in 27 of 1,000 live births. One major cause of birth injuries is oxygen deprivation, which commonly happens when the umbilical cord is compressed or twisted during birth. Another cause is trauma that may occur when a baby moves into an unusual position during the birthing process. Common birth injuries include brachial plexus palsy, cerebral palsy, Erb's palsy, Klumpke's palsy, skin irritation, temporary paralysis, brain damage, and fractured collar bones.
Physicians and health-care providers have a duty to act as a "reasonably prudent" person would act under similar circumstances, and they commit malpractice when they are negligent in their treatment, or when they have otherwise departed from accepted standards of medical care. If that negligence injures you or your child, you may have a legal claim.
When a doctor commits malpractice, you can recover damages not only for physical injuries but also for economic damages, such as medical expenses, loss of income, and loss of value of services provided. Other kinds of noneconomic damages may be available, such as money awarded to compensate you or your child for physical or mental pain and suffering, disfigurement, or physical impairment. Of course, the amount of damages varies depending on the severity of the injury and on the circumstances of each case.
A qualified lawyer can determine whether you have a claim for medical malpractice by hiring medical experts, by studying the medical records, and by determining whether your physician or health-care provider deviated from the applicable standard of care. Act quickly! If you are the victim of malpractice occurring during the birth of a child, you must file your claim in a timely fashion (usually within two years, although it may be longer for your child) or else lose your right to do so. Because birth injury cases are complex, it is important to contact our firm AS SOON AS POSSIBLE to receive the legal advice necessary to protect your rights.
THEY SAID IT
The following exchanges actually took place in courtrooms across the country.
Q: Doctor, as a result of your examination of the plaintiff, is the young lady pregnant?
A: The young lady is pregnant--but not as a result of my examination.
Q: When was the last time you saw the deceased?
A: At his funeral.
Q: Did he make any comments to you at that time?
WHAT IS "COMPARATIVE NEGLIGENCE"?
The term "comparative negligence" is often used in connection with a lawsuit, but many of us don't really know what it means. The idea is fairly simple, but any explanation of comparative negligence must start with a simple definition of "negligence." A person is negligent when he or she owes someone else a duty to act in a certain way but doesn't live up to that duty and carelessly causes an injury to the other person. Depending on the circumstances, the law imposes different standards of care on people, including (1) ordinary care (the care exercised by a reasonably prudent person), (2) high degree of care (the care owed by some highly-specialized professionals), or (3) a child's degree of care. If the injured person elects to sue the careless person, the lawsuit is a negligence suit.
When a defendant is sued for negligence, he will defend himself as best he can, and one of the defenses available to him is the defense of comparative negligence. "Comparative negligence" (which Texas officially calls "proportionate responsibility") is just that: The defendant argues that he was not the only one who was careless, and that the injured person (the plaintiff) shares some of the blame for his own injuries. If a defendant proves that the plaintiff was also negligent, the plaintiff's recovery will be reduced in an amount equal to the plaintiff's own negligence. In Texas, however, if the plaintiff is found to be over 50% responsible for his own injuries, then he is barred from recovering any damages.
In cases involving comparative negligence, the jury will determine the percentage of responsibility of each plaintiff, of each defendant, and of other responsible persons. After hearing the evidence, the jury will assign a percentage of responsibility to everyone involved, ranging from 0% (completely not responsible) up to 100% (entirely responsible). Based on these percentages of fault, the plaintiff's recovery may be reduced or may be completely prohibited.
It is important to remember that just because you are partially responsible for an accident does not necessarily mean that you cannot recover for your injuries. Although your damage award may be reduced, it will only disappear entirely if you are more than 50% responsible for the accident.
NO INSURANCE FOR "DIMINISHED VALUE"
Most of us have experienced the nightmare of a "fender-bender." Even if you are lucky enough to escape physical injury, a simple car accident can still lead to problems, aggravations, frustrations, and inconveniences. You may find yourself without a vehicle or with a vehicle that needs repairs. You may struggle with insurance companies in order to get a property settlement. Even after your vehicle has been repaired, it remains damaged in your eyes and in the eyes of others. It has lost that new feel and look. When you try to sell it, potential buyers will be suspicious of the repairs and may be leery of buying a previously "wrecked" vehicle. Unfortunately, there is not a thing you can do about it except to drive defensively and stay out of accidents.
The Texas Supreme Court recently ruled that the Texas Standard Personal Auto Policy does not provide coverage to compensate an insured policyholder for the diminished market value of his or her vehicle if it has been adequately repaired. For all of us covered under the Texas Standard Personal Auto Policy (which is just about everyone), buckle up, drive safely, and try to avoid accidents. If you find yourself in a car accident and your vehicle needs repair, be satisfied if the insurer makes complete and adequate repairs to your vehicle. There is no reason to fight with the insurance company to try to recover for the diminished value of your car, a matter for which the insurance company has no legal liability. Save your energy for those fights you can win!
As roads become more congested and people's lives become more hectic, aggressive driving and the dangers associated with it increase. Aggressive driving is the combination of unsafe and unlawful driving actions that show a disregard for safety. An aggressive driver is one who operates his or her vehicle in a selfish, bold, or pushy manner, without regard for the rights or safety of others.
Aggressive driving is often triggered by trivial disputes and includes such things as refusing to allow a motorist to pass, obscene gestures, horn blowing, tailgating, and failure to obey traffic laws. Aggressive driving is different than "road rage." Road rage usually involves a driver breaking a criminal law, such as by shooting a gun at another driver who cut him off. However, aggressive driving can be just as dangerous, to both the aggressive driver and those with whom he shares the road.
You can protect yourself from the hazards posed by aggressive drivers by allowing yourself extra travel time to arrive at your destination so you do not have to hurry, by avoiding stress, and by remaining calm in traffic. The best way to avoid being the target of an aggressive driver is to practice basic traffic courtesy. Assume the best of other drivers, and assume if they make a mistake that it is not personal. Avoid conflict if possible (even if you are in the right) and carefully consider the possible consequences before you react. Finally, call 911 to report unsafe or aggressive drivers. The risks and consequences of aggressive driving are great, and you should take care to be neither a perpetrator nor a victim.