Alabama Injury Law Blog

Injured Minor Child? Who Brings a Claim for Medical Costs?

Published on: May 9, 2018 | by Hollis Wright

Any attorney that represents injured children has to consider the question of who has standing or the right to bring the claim on behalf of the injured child? Are the incurred medical expenses the parents’ claim or the minor child’s claim? And, what adult or person should serve as the representative for the minor child? These are just some of the many questions that arise in the context of an attorney’s representation of an injured child.

While the above questions will depend upon the state in which the injury occurred, this article focuses on Alabama law and how it views these issues. Essentially, Alabama allows the parent or the person representing the minor child to elect who makes the claim for medical bills, past and future, during the minority years. The parent, who likely incurred the medical bills, can bring the the claim in their individual capacity or, the parent can waive their right to bring the claim individually in favor of simply allowing the minor to pursue the claim through their representative.

The issue was first addressed in Cabaniss v. Cook, 353 So. 2d 784 (Ala. 1977); see also, Broughton v. Kilpatrick, 362 So. 2d 865 (Ala. 1978) (affirming the holding in Cabaniss one year later by reversing the trial court when it did not allow the introduction and admission of medical expenses on behalf of a minor suing by and through his mother as next friend). The Cabaniss Court directly addressed the issue of whether a minor child has the right to pursue medical expenses through a representative as opposed to the parent pursuing said damages individually. In Cabaniss, Warren Cook, and unemancipated minor, sued by and through his father as next friend, for damages arising out of an automobile accident. Cabaniss at 785. In the Cabaniss opinion, the Court noted:

Wait, I Have to Pay My Health Insurance Carrier Back?

Published on: February 14, 2018 | by Hollis Wright

by HWCV Associate Attorney John Spade

If you have ever had a personal injury claim that has resolved either through a settlement or a verdict, the attorney handling your case likely told you that a portion of your settlement would have to be used to pay back your health insurance company for the medical bills they paid relating to your injuries. This process is call subrogation and can have a major impact on your personal injury case.

For the purpose of this post, we will be discussing how subrogation works in the context of medical bills that have been paid by private health insurance companies, such as BlueCross BlueShield or Humana. However, it is important to note that the subrogation process applies, not only to private health insurance companies, but also to government entities such as Medicare, Medicaid, Tricare or any other entity that pays to satisfy your medical bills, which then make the basis of your personal injury claim, including hospitals. Furthermore, in regards to governmental entities, a failure to protect their subrogation interests can result in significant penalties to all individual attorneys and/or parties that impaired the governmental entity’s right to get reimbursed. Therefore, the attorney handling your personal injury claim should be aware of which entities are paying your medical bills, so they can make sure to properly protect their subrogation interest.

Uninsured Alabama Motorists to Face Penalties

Published on: November 29, 2017 | by Hollis Wright

Beginning November 2017, Alabama motorists should be prepared to incur stiff penalties if they are caught without liability insurance on the state’s roadways. Although Alabama motorists have been required to carry liability insurance on their vehicles since the Alabama Mandatory Insurance Act was initially passed in 2013, the Alabama Legislature recently enacted a bill which gave the Alabama Law Enforcement Agency a procedure to levy civil penalties against drivers found to be in violation of the previously enacted Alabama Mandatory Insurance Act. The bill, which was passed by the Alabama Legislature in 2016, gave drivers a grace period in an effort to allow motorists time to obtain proper coverage.

With the grace period expiring on November 1, 2017, all motorists are now effectively responsible to be properly insured when taking to Alabama roadways. Applicable fines include the following:

$200 for the first offense,

What You Should Know About Dog Bite Liability

Published on: September 18, 2017 | by Hollis Wright

While most Americans, including Alabamians, love their dogs and generally consider them part of the family, it is important to remember that dogs are still classified as animals. And being animals, as well as descendants of wild animals, dogs are capable of unpredictable and violent behavior. In fact, some 47 million Americans per year are bitten by dogs, half of whom are children between the ages of five and nine years old. Some 9,500 people per year are hospitalized due to the seriousness of their dog bite injuries. In addition to dog bite wounds, dog attacks can result in sprains, broken bones, lacerations, infections, and many other health and medical issues, including death.

In Alabama, there are several ways in which you can recover when you suffer injuries as the result of a dog bite. However, the two primary theories of liability are either statutory, under Alabama’s Dog Bite Statute (Ala Code § 3-6-1 et seq) or through Alabama’s common law, under general negligence principles.

Liability Under Alabama’s Dog Bite Statute

Proton Pump Inhibitor (PPI) Claims Granted Multidistrict Litigation (MDL)

Published on: August 10, 2017 | by Hollis Wright

The U.S. Judicial Panel (JPML), a separate body within the Federal Court System, has granted the plaintiff’s second motion for consolidating Proton Pump Inhibitor (PPI) drug claims to Multidistrict Litigation (MDL). This allows the plaintiffs to consolidate the cases that allege PPI drugs caused kidney disease in those who used them. The benefit for plaintiffs is that the consolidated action will expedite the overall process, prevent duplicate discovery, and reduce a backlog in the court system.

The PPI drugs at issue include four prescription drugs: Prilosec, Nexium, Protonix, and Dexilant; and three over-the-counter drugs: Prilosec OTC, Prevacid 24-hour, and Nexium 24-hour. Plaintiff’s allege these PPIs cause kidney injuries, which include acute interstitial nephritis, chronic kidney disease, and end-stage renal disease. This type of drug first received FDA approval in 1989.

The suits, citing a host of studies, claim the manufacturers of the PPI drugs (the defendants) should be held liable and accountable for the damage caused to patients while taking said drugs. Furthermore, the defendants should take financial responsibility for failing to warn consumers of the potential health issues related to PPIs.

Are “Possible Causes” of an injury admissible?

Published on: August 3, 2017 | by Hollis Wright

Any attorney who has ever litigated a personal injury claim has heard the legal standards “reasonable degree of medical certainty” or “reasonable degree of medical probability.” Further, attorneys understand and appreciate that the plaintiff has the burden of proving that the claimed injuries were caused by the underlying events in compliance with these standards. However, what do the standards mean and what is required? In essence, the standards require that it is more probable than not, or more likely than not, that the claimed injuries were caused by the incident giving rise to the lawsuit. Typically, a qualified medical doctor or medical clinician will have to testify on this issue.

In many circumstances where medical causation is in dispute, the defendants may respond or defend the case by asserting that the claimed injuries were not caused by the underlying incident, or were in fact caused by some other, unrelated event. The question becomes: What legal standard applies to a defendant desiring to make this argument and admit evidence in furtherance of same. Can the defendant introduce “possible” alternative causes? Does the defendant have to present medical evidence or testimony within a reasonable degree of probability to be able to introduce the evidence before the jury?

These questions are often raised and debated in many personal injury cases throughout the State of Alabama and around the country. While the issue may be addressed or handled differently among the jurisdictions, the better practice should be to hold the defendants to the same standard of admissibility as the plaintiff. Under no circumstances would an Alabama trial judge allow a plaintiff to present medical testimony indicating that his injuries were only “possibly” caused by the incident. If this were the testimony in the case, the defendant would undoubtedly file a motion in limine to preclude the plaintiff from arguing that the claimed injury was caused by the accident. Alabama law is clear that “possible causes of an injury to a plaintiff represent nothing more than rank conjecture and speculation.” Western Ry. of Ala. v. Brown, 196 So. 2d 392 (Ala. 1967); see also Hooks v. Pettway, 142 So. 3d 1151 (Ala. Civ. App. 2013); Portis v. Wal-Mart Stores East, L.P. 2008 WL 3929672 (S.D. Ala. 2008).

Discovery and Admissibility of Video Surveillance and Audio Tapes

Published on: July 5, 2017 | by Hollis Wright

It is a customary practice in any lawsuit to request that the opposing party produce any and all statements and/or recordings of your client(s). However, are these types of recordings and/or statements discoverable? Further, what procedural or technical hoops must the attorney jump through prior to trial in order to use such evidence? In the event that an attorney confronts these issues, the attorney should at the very least review the opinions of Ex parte Doster Construction, 772 So. 2d 447 (Ala. 2000) and Ex parte Weeks, 810 So. 2d 661 (Ala. 2001).

In Doster, the Alabama Supreme Court addressed two issues. First: Is the existence of a surveillance videotape discoverable, and if so, at what point? Pursuant to Rule 26(b)(1) and (3), the Court answered that the mere existence of the videotape is discoverable but stated that the trial court has the discretion under Rule 26(d) to control the timing of the disclosure if it would promote truthfulness by the party/claimant seeking the disclosure in a deposition and/or in responses to other discovery requests. Second: Is the actual surveillance videotape discoverable? The Court held that generally such a videotape is not discoverable pursuant to Rule 26(b)(3), because such a tape would constitute “materials prepared in anticipation of litigation or for trial.” However, such a tape would be discoverable by a showing of “substantial need and an undue hardship in obtaining the substantial equivalent by other means.” The Court said that it would be unlikely that the seeking party could satisfy the “substantial need” requirement given that it would be difficult to establish that the party was ignorant as to what activities could have been observed. However, the Court noted that, in the event the party possessing the videotape intends to use same at trial, then, the party would be obligated to provide the opposing side a copy of the videotape within a reasonable amount of time prior to trial. This would ensure that determinations as to authenticity occur and that no manipulations of the tape were performed.

In Weeks, the Alabama Supreme Court addressed a similar issue but ruled differently. The issue in Weeks was whether the Plaintiff Weeks was obligated to disclose an audiotape of a recording between Weeks and the Defendant, Case. The attorneys for Case objected to Case being deposed prior to the Plaintiff’s attorney providing a copy of the audiotape. The trial court held that Case was entitled to a copy of the audiotape and further was entitled to same prior to sitting for his deposition. The Supreme Court affirmed the trial court decision despite the fact that the Supreme Court noted that Case did not show “substantial need.” How did the Alabama Supreme Court distinguish the facts in Weeks from Doster? First, the Court noted that Rule 26(b)(3) states that “a party may obtain without the required showing a statement concerning the action or its subject matter previously made by that party.” In other words, the audiotape in Weeks concerned a recording that was the “subject matter” of the lawsuit and/or the basis for the lawsuit whereas in Doster, the videotape footage likely involved activities that occurred well after the claim or lawsuit arose and was likely done in response to the claim/lawsuit. Secondly, the Court seemed to be motivated in favor of disclosure of the audiotape due to the stealth manner by which the Plaintiff Weeks secured the recording.

Evidence of FDA’s 510(k) Clearance. Admissible or Not?

Published on: June 7, 2017 | by Hollis Wright

Medical devices, implants and tools are used daily by people and medical personnel all over the country and are intended to improve the overall health and quality of life in patients. These medical devices are often intended to prevent or protect against certain medical dangers or injuries during the course of performing medical treatment or surgery.

However, what happens when the medical device or implant causes an injury to the patient? Such an occurrence will likely result in the pursuit of a product liability lawsuit against the manufacturer by the injured patient. During the course of litigation, the issue of the U.S. Food and Drug Administration’s (FDA) 510(k) clearance process of the subject medical device will likely arise. The FDA’s 510(k) process is one way to introduce new medical devices or implants to the market. In pursuing the 510(k) approval route, the manufacturer will submit an application to the FDA seeking clearance under the 510(k) process. Among other items, the 510(k) application will include a description of the medical product and the intended use of the product. Further, the application will reference other similar products that are on the market being used in a substantially similar manner.

While we would like to believe that the FDA is conducting a thorough and complete analysis of each medical product that is on the market, this is not the case. The FDA was never set up in this manner and simply does not have the resources to conduct such an analysis on every product. This type of in-depth, thorough evaluation is reserved for a different class of medical devices and implants, which is known as Pre-Market Approval (PMA).

Fires and Burn Injuries

Published on: March 9, 2017 | by Hollis Wright

Fires are a leading cause of burn injuries, death and property damage in the United States and in the world. According to the World Health Organization, some 265,000 people die worldwide due to fire-related incidents. Lower-income areas are more prone to fire accidents, injuries and deaths than higher-income demographics. In the same vain, lower-income countries see far more fire-related deaths than the United States.

The American Burn Association in 2016 recorded 486,000 burn incidents in the United States that required medical attention, 3,275 of which resulted in fire or smoke inhalation deaths. Some 40,000 Americans are hospitalized each year due to burn injuries, 30,000 of those are admitted to specialized burn units. Most burns, a whopping 73 percent, in the U.S. result from in-home accidents. And while most burns are a result of fire or flame, many occur due to scalding, contact, chemicals, and electrical episodes.

If you are burned, the American Burn Association indicates the following:

When Your Medical Device is Defective: Surgical Mesh

Published on: February 28, 2017 | by Hollis Wright

Millions of Americans annually rely on medical devices to either save their lives or improve the quality of their lives. While most medical devices perform properly and provide doctors with the means to maintain their patients’ quality of life, many devices fail and, either do not help the patient, or actually cause further harm. According to a May 2016 article in The Expert Institute, the FDA each year receives thousands of reports of deaths, injuries, and malfunctions associated with medical devices.

Surgical mesh is a commonly used type of medical device that has, in some cases, had adverse effects on patients. Hollis Wright is currently reviewing claims involving complications with two types of flexible, composite surgical mesh devices. Both mesh devices that Hollis Wright is currently investigating were recalled by the products’ manufacturer, not the FDA. Both products also were introduced via the controversial 510(K) Premarket Notification Program, not the FDA’s more stringent Premarket Approval Process (PMA).

The two surgical mesh devices for which Hollis Wright is currently reviewing claims are as follows.