Virginia Accident Lawyer

Top Ten Defenses to Virginia Personal Injury Claims

2012-02-09T19:43:00Z

Liability - Many Virginia auto accident cases involve a dispute over who is at fault. In a simple rear end collision, liability is often accepted when the claim is filed. If the accident involves a lane change, sudden stop, multiple impacts or two different accounts of the accident with no police report or witness, the automobile insurance company often denies liability(almost always if the carrier is Geico or MAIF). These claims end up in court where an experienced personal injury attorney has the burden to prove, by a preponderance of the evidence, that the other driver was at fault. The term preponderance of the evidence means more likely than not. In other words, the fate of your accident recovery often depends on the experience of the trial lawyer you retained. A "Trial Lawyer" is someone you need to hire when you first call an attorney, not just a Virginia accident lawyer. Portner & Shure's attorneys are trial attorneys and our website reflects many of the injury awards we have received in court, not just by settling.
Contributory Negligence - Virginia's contributory negligence doctrine is cut throat and can be a complete bar to an injured victim's recovery. Virginia personal injury attorneys often struggle to help clients because of this all or nothing rule. Under contributory negligence, the accident victim's failure to exercise a reasonable degree of care and caution, no matter how slight, is an absolute bar to recovery. If the defendant's lawyer can convince a jury that the victim was only 1% at fault, that individual will not recover any damages.
Low Property Damage - Some Virginia automobile accident claims, where liability is not disputed, don't settle. One of the main reasons these cases fail to settle is because insurance adjusters refuse to offer fair settlements in accidents where the property damage to the injured victim's vehicle amounts to less than $1,000. Insurance companies often argue, in these cases, that the medical treatment received by the injured party was not warranted considering the low impact and that the injuries suffered could not have resulted from a minor accident. The adjusters' low impact argument often fails in court. There are several arguments that can be made on behalf of a plaintiff by an experienced Virginia accident lawyer. First, large accidents with significant property damage can result in little or no injuries to those involved, while minor accidents often result in serious injuries. Second, especially in rear end collisions, the injured victim does not have a chance to brace for impact. Third, sometimes the types of vehicles involved can explain the extent of the property damage. Forth, the evaluation of the accident victim's injuries and treatment is done by medical professionals who, absent evidence to the contrary, give medical treatment that is fair and reasonable and medically necessary. In almost every district court in Virginia, Portner & Shure trial attorneys have prevailed in low impact accidents.
Preexisting Injury or Underlying Condition - In many Virginia personal injury cases, the injured victim may have a preexisting injury or underlying condition. In these personal injury cases, insurance companies' attorneys will argue that the individual was already injured, experiencing symptoms before the accident and that the injury was not caused by the accident. When a plaintiff has a preexisting injury, an experienced Virginia accident attorney can use medical records to show that the plaintiff was fully recovered from the accident and released from treatment. Further, the personal injury attorney can argue that the plaintiff was asymptomatic before the current accident or that the preexisting injury was made worse by the accident. If the injured accident victim has a preexisting injury, such as a degenerative back condition, the fact that the condition was exacerbated or that there was a predisposition for an injury could explain why the accident resulted in significant injury. This argument is based off of the "Egg Shell Theory" which dictates that the condition of the victim prior to the accident does not mitigate the liability of the negligent party for the injuries resulting from the accident. In other words, "you take the victim as you find them".
(a) Causally Related - Sometimes insurance companies and there lawyers will argue that the injuries are not causally related to the accident, and that there is no reasonable connection between the accident and the alleged injuries. For example, if an individual is involved in an automobile accident and claims that, as a result, he or she had an appendix removed there is a strong argument against that claim. However, if a person is involved in an accident, which leads to a panic attack and an overnight stay in a hospital, there is a strong argument to be made that the condition was caused or exacerbated because of another person's negligence. Again, the Virginia personal injury attorneys have to prove by, a preponderance of the evidence, that the injury was caused by the accident, which means that the injury was more likely than not caused by the accident.

b) Medically Necessary

Chinese

Korean

Assumption of the Risk - The concept of "assumption of the risk" is fairly basic. For example, bee keepers assume the risk of being stung and rock climbers assume the risk of falling to their death. Simply put, a person who engages in risky activities cannot complain when the result is injury or death. The legal concept of "assumption of the risk" is based on the same principle, but does require a more detailed explanation. In Virginia, a person assumes the risk if that individual voluntarily engages a particular action or inaction known to that person to be inherently dangerous. If that particular action or inaction leads to an accident which results in injury, there can be no claim of negligence. For example, if a person is having a particularly good time and decides to dance on top of the bar, that individual cannot claim negligence if he or she slips on a spilled drink and falls. Assumption of the risk is a favorite argument of defense lawyers in Virginia, however, it is seldom applicable in auto accident, malpractice and product liability cases. The assumption of the risk defense is often utilized successfully in Virginia slip and fall cases.
Subsequent Accident or Injury - If an accident victim is involved in a subsequent accident the insurance companies and their attorneys can argue that the subsequent accident superceded the prior accident. An experienced Virginia personal injury lawyer can overcome this defense by examining the medical records. If the plaintiff's complaints were resolved before the subsequent accident then the defense is without merit. In cases where the subsequent accident was minor and there was little to no treatment, the personal injury attorney can argue that the subsequent accident was merely a blip on the radar and did not impact the more serious injuries resulting from the prior accident.
Gaps in Treatment - Too often Virginia accident victims wait several days before they are seen by a doctor, physical therapist or chiropractor. The longer the gap between the accident and the initial medical evaluation and treatment the stronger the argument that the accident victim did not require treatment. Defense attorneys like to argue that because an accident victim didn't immediately go to the hospital or doctor that the plaintiff's complaints lose credibility. Experienced Virginia personal injury attorneys should know that, in many cases, symptoms such as pain and stiffness do not manifest until a few days after the accident. Once an initial evaluation is done, gaps between treatment can be damaging to a personal injury claim. Most treatment plans follow a schedule prescribed by a medical professional designed to reach optimal recovery. Deviation from the treatment plan should be avoided. A defense attorney, who is presented with gaps ranging from a week to a month between treatment dates, has a very strong argument against the plaintiff's claims.
Fair and Reasonable - This is a term based off of community standards. This argument is often used when an injury victim double treats with two chiropractors and neither of the chiropractors knows. Defense attorneys will argue that an injury victim over treated and that the length of treatment was too long. In some cases, an injury victim may get MRI's of parts of the body that weren't injured in the accident. Sometimes healthcare providers over charge or over treat. When this unfair practice occurs the healthcare provider actually comes under attack and those bills may be nullified by the court's determination. The basic rule to follow in order to avoid this defense is to treat until your injuries are resolved.
Poor Witness - The insurance company will often contend the accident case is worthless because the plaintiff does not present well, or is a poor witness. In these instances the carrier must be pressed to give the exact reason for this contention. Often adequate trial preparation can overcome this issue. Further, the issue may be raised due to prejudice or language barriers. Some adjusters hear a foreign accent, whether Spanish, Chinese, Korean or Vietnamese, and immediately offer less. At Portner & Shure we have experience in Virginia courts litigating cases including Spanish, Korean, Chinese and Vietnamese speaking accident victims. Our Verdicts have never suffered because one of our plaintiffs is non-English speaking.

U.S. Department of Transportation Increases Mandatory Truck Driver Rest Time

2012-02-09T19:16:28Z

U.S. Transportation Secretary Ray LaHood today announced a final rule that employs the latest research in driver fatigue to make sure Maryland and Virginia truck drivers can get the rest they need to operate safely when on the road. The new rule by the U.S. Department of Transportation's Federal Motor Carrier Safety Administration (FMCSA) revises the hours-of-service (HOS) safety requirements for commercial truck drivers.

"Trucking is a difficult job, and a big rig can be deadly when a driver is tired and overworked," said Transportation Secretary Ray LaHood. "This final rule will help prevent fatigue-related truck crashes and save lives. Truck drivers deserve a work environment that allows them to perform their jobs safely."

As part of the HOS rulemaking process, FMCSA held six public listening sessions across the country and encouraged safety advocates, drivers, truck company owners, law enforcement and the public to share their input on HOS requirements. The listening sessions were live webcast on the FMCSA Web site, allowing a broad cross-section of individuals to participate in the development of this safety-critical rule.

]]> "This final rule is the culmination of the most extensive and transparent public outreach effort in our agency's history," said FMCSA Administrator Anne S. Ferro. "With robust input from all areas of the trucking community, coupled with the latest scientific research, we carefully crafted a rule acknowledging that when truckers are rested, alert and focused on safety, it makes our roadways safer."

FMCSA's new HOS final rule reduces by 12 hours the maximum number of hours a Maryland or Virginia truck driver can work within a week. Under the old rule, Maryland and Virginia truck drivers could work on average up to 82 hours within a seven-day period. The new HOS final rule limits a driver's work week to 70 hours.

In addition, Maryland and Virginia truck drivers cannot drive after working eight hours without first taking a break of at least 30 minutes. Drivers can take the 30-minute break whenever they need rest during the eight-hour window.

The final rule retains the current 11-hour daily driving limit. FMCSA will continue to conduct data analysis and research to further examine any risks associated with the 11 hours of driving time.

The rule requires Maryland and Virginia truck drivers who maximize their weekly work hours to take at least two nights' rest when their 24-hour body clock demands sleep the most - from 1:00 a.m. to 5:00 a.m. This rest requirement is part of the rule's "34-hour restart" provision that allows drivers to restart the clock on their work week by taking at least 34 consecutive hours off-duty. The final rule allows drivers to use the restart provision only once during a seven-day period.

Companies and drivers that commit egregious violations of the rule could face the maximum penalties for each offense. Maryland and Virginia trucking companies that allow drivers to exceed the 11-hour driving limit by 3 or more hours could be fined $11,000 per offense, and the drivers themselves could face civil penalties of up to $2,750 for each offense. Commercial truck drivers and companies must comply with the HOS final rule by July 1, 2013.

A Maryland or Virginia truck driver or company who violates this rule is negligent. Driver fatigue is often the cause of serious truck accidents which result in severe injuries. If you or someone you know has been injured in a truck accident or tractor trailer crash in Maryland or Virginia contact the Maryland truck accident attorneys and Virginia tractor trailer lawyers at Portner & Shure.

Ten Things You Need to Do for Your Automobile Accident Case After You Hire a Virginia Personal Injury Attorney

2012-01-06T20:59:04Z

Hiring the best Maryland or Virginia automobile accident attorney does not mean you no longer have any responsibility for your accident claim. In fact, at Portner & Shure we ask all of our Howard County accident clients to do these ten things in each claim. In our experience, the client who works closely with our office helps ensure a good medical result and greater recovery. Below is a list of what you should expect to be your responsibilities:

1. During the first two days after your Maryland or Virginia automobile accident if you are hurt you must seek medical attention. All insurance companies value claims based on what the medical documentation reveals. An indication that a person was truly hurt in a Maryland or Virginia automobile accident comes from medical documentation close in time to the accident.

]]> 2. Immediately give all insurance information for your insurance carrier and the liability carrier and health insurance to a Portner & Shure paralegal. Cease all communication with both carriers.

3. During the week after the Maryland or Virginia automobile accident, work closely with a Portner & Shure paralegal on all issues concerning your car repair, rental and/or total loss figures. Communicate closely with the paralegal on all issues concerning the storage cost. Cars should not be in storage for more than three to four days.

4. Within a week of the Maryland or Virginia automobile accident seek follow-up medical attention with a doctor who can get you better and is respected by the major automobile insurance carriers. Further medical attention can be obtained with an orthopaedic doctor, a chiropractor, a neurologist or an acupuncturist. Acupuncture presents a problem with billing unless the acupuncture is prescribed by a medical doctor. Unlike less experienced Maryland or Virginia injury attorneys, we do not allow our Chinese speaking accident clients to see an acupuncturist unless they are also seeing a medical doctor. Doing so drastically reduces the value of the claim.

5. Keep a diary on the computer or a notebook of events and problems that occur as a direct result of the Maryland or Virginia automobile accident. Anything at all that occurs to you, even if you think is insignificant, may be important but forgotten later if not recorded timely. Examples, your pain, what you can and cannot do, missed work or school, trouble sleeping, irritability, inability to exercise and weight gain. Missed trips or travel plans.

6. You will be provided with a list of all records and bills in your Maryland or Virginia automobile accident case by a Portner & Shure paralegal before a demand is sent to the insurance carrier. Review the following:

a. list of all medical providers to ensure no doctor reports are missing;

b. list of all medical bills to ensure no treatment expenses are missing;

c. lost wage statement

d. draft demand letter (in all large Maryland or Virginia personal injury cases, the client should review the demand. This way you can ensure that diary notes are included in the demand).

7. Negotiations. In each case approximately six weeks after the demand is sent to the insurance company, negotiations will occur. An attorney from the Portner & Shure personal injury team will obtain an offer from the carrier, work on bill reductions and then call you with two figures. One will be the offer from the carrier, the other is your net recovery. The accident lawyer has years of experience and will make a recommendation as to accepting the offer or filing a Maryland or Virginia lawsuit. However, the decision to accept, or sue, is completely yours. If you accept you will be forwarded a settlement memorandum to sign, showing a breakdown of all expenses, the offer and the net recovery for the Maryland or Virginia automobile accident claim.

8. If a lawsuit is filed in either the Maryland or Virginia Courts, your role will be more involved. However, the bulk of the work will be done behind the scenes by Portner & Shure's personal injury litigation team. This team has obtained several huge recoveries lately, landing Mr. Portner in the select Million Dollar Advocacy Forum. Only 1% of all United States lawyers are eligible to be members. Your role in the litigation will include the following:

a. verifying certain facts so the Maryland or Virginia Complaint filed is accurate;

b. answering written discovery;

c. possibly coming to our office to prepare for a deposition, and then attend the deposition;

d. possibly attending a settlement or mediation conference;

e. possibly coming to one of our Maryland or Virginia offices to prepare for a trial and then attending a trial.

9. Whether your accident case is one where suit is filed, or settled at the claims level, in the age of social media all clients now have an additional obligation. The obligation is to ensure that what you are telling our office and your doctors, is consistent with what is being shown or written about by you on Twitter and/or Facebook. Insurance adjusters and opposing attorneys now review these social media entries and pictures of people making automobile accident claims. Therefore, if you say you can't walk or get out of bed, Facebook photos should not show otherwise.

10. If English is your second language you can not use this as an excuse to not perform all of the above.

In fact, if you speak Spanish, Chinese or Korean and had a Maryland or Virginia automobile accident, we will ask that you do the following:

1. Meet directly with one of our Spanish, Chinese, or Korean speaking staff members;

2. In person or the telephone discuss with one of our Spanish speaking, Chinese speaking (Mandarin or Cantonese), or Korean speaking Paralegals, the following:

a. all facts concerning the Maryland or Virginia automobile accident;

b. all facts concerning your injuries and damage to your car;

3. Communicate with our office on a monthly basis and specifically speak to a Spanish, Chinese, or Korean speaking staff member with respect to any concerns and the status of your treatment for the Maryland or Virginia automobile accident.

How Some Law Changes Could Reduce Fatal Automobile Accidents in Virginia

2011-12-19T19:34:16Z

Hundreds of lives could be saved in both Maryland, D.C., and Virginia, over the next five years if the legislature passed more phased-in driving privileges for teens. Across the nation, and in the Maryland and Virginia area, motor-vehicle crashes are the leading cause of death for teens. In fact, per each mile driven, drivers ages 16-19 are four times more likely to be involved in an automobile accident.

]]> Experts have noted that graduated driver licensing (GDL) programs for teens reduce the death and accident tolls significantly. In fact, they have identified several components that constitute a strong GDL. Amazingly, only two states, New York and Delaware have programs with all seven.

The seven components are as follows:

1. A minimum age of 16 for a learner's permit (Maryland now has);

2. Six months of supervised driving before unsupervised driving;

3. A minimum of 30 hours supervised during learner's stage (Maryland now has a supervised hour requirement);

4. A minimum age of 16 ½ for intermediate licensing (Maryland now has);

5. Intermediate night-driving restriction beginning at 10p.m. (Maryland now has a night driving privilege);

6. No more than one non-family member passenger for intermediate license holders (Maryland now has);

7. A minimum age of 17 for a full license.

The last restriction could place undue hardship on many working families in Maryland and Virginia who rely on their teenagers to help with car pool. As a result, while it saves lives, it seems unlikely to become law in our area.

Five Social Media Tips for Virginia Injury or DWI/DUI Clients

2011-12-19T18:26:38Z

Thousands of Portner & Shure's personal injury and criminal clients, in both Maryland and Virginia, log onto social media sites every day to chronicle their personal and professional lives. These sites create a virtual gold mine of potential legal liability and discoverable information that may have a devastating impact on the outcome of both a Maryland or Virginia accident, or criminal case. One of the first lawsuits to be filed over social medica activity involved country singer, Courtney Love, who was sued by her former designer for defamation concerning alleged damaging statements posted by Love on her Twitter account. Love's supposed damaging tweets were "published" to her 40,000 Twitter followers, and set the stage for the world's first well-known social media suit.

]]> 1. Social media content may be used in the courtroom, or by insurance adjusters in matters involving personal injuries, including Maryland and Virginia automobile accidents, workers' compensation and medical malpractice cases. Social media users often post information about vacations, participating in sports or other activities. These posts may be inconsistent with claimed injuries. Information and comments posted by Maryland or Virginia accident injury victims on Facebook, Twitter or blogs, may be admissible at deposition or trial and could destroy or dramatically reduce the value of a Maryland or Virginia injury case. Five years ago a personal injury client at Portner & Shure would be warned that insurance companies may hire an investigator to follow them and video their daily activities. While this practice is now decreasing, the use of adjusters reviewing Facebook or Twitter posts in a Maryland and Virginia in a personal injury case is now on the rise. Be advised that everything a personal injury client is putting on Facebook or Twitter may be reviewed by an insurance adjuster to reduce the value of a Maryland or Virginia automobile accident, workers' compensation or medical malpractice claim. Below are some examples to take into consideration:

a. In one case a woman was claiming that because of her back injuries, suffered in a Maryland car accident, she could no longer walk. An adjuster reviewed her blog posts. In the blogs she described taking belly dancing classes for years. She in fact even posted photo's of her dancing at monthly performances. The photos and blog posts were later shown to her treating physician. The doctor testified that he was:

unaware of the woman's belly dancing classes

unaware that she had been doing belly dancing monthly performances

unable to state she was not physically capable of employment

b. A second time Maryland DUI client recently wondered why he was facing a probation revocation after boasting on Facebook that he just went to a concert and smoked marijuana.

c. The Workers' Compensation Commission recently stopped a clients benefits after an adjuster learned he was making money selling personal items on Craigslist.

2. Under current Maryland or Virginia rules it is not unfair or unethical for a defense attorney or insurance adjuster to collect evidence from your Facebook or Twitter posts. Ethical rules are slowly developing with respect to the boundaries of investigators using social media to destroy or limit Maryland and Virginia automobile accident, workers' compensation or medical malpractice claims. In fact, no hard and fast rules have yet emerged. As a result, you cannot claim foul or unfair, once the damaging information passes into the hands of unwanted persons. At this stage, defense attorneys, insurance defense paralegals, and investigators maybe using "friend requests" to gain access to online information of Portner & Shure automobile accident clients.

3. Social media can be used to attack the need for medical treatment, or the actual testimony of your doctor in a Maryland or Virginia automobile accident, Maryland and Virginia in a personal injury case or medical malpractice case. The activities you talk about on Facebook or Twitter, i.e. running, working out, raking leaves, skiing, cannot in anyway be consistent with what you are telling your doctor you cannot perform. In the event that they are, and this is discovered after the course of medical treatment, all the medical bills and treatment may be called into question.

4. At trial credibility (believability) of an accident victim or DUI defendant is at issue. In other words, the outcome often hinges on whether the jury believes this one persons account of what occurred. Social media posts can destroy a plaintiffs credibility. Credibility will cause irreparable damage, if evidence of activities is not inconsistent with the claims made to a medical doctor.

5. In light of the above, we suggest you make sure the following changes while using Facebook or Twitter if you have an active Maryland or Virginia injury case.

a. Check the privacy settings on your accounts and make sure you only share information with people you trust. Never accept a friend request or invitation from someone you don't know;

b. Assume the insurance company and defense lawyers have access to everything you post. Avoid talking about, mentioning, or referring to your case in anyway so that nothing can be used against you in court;

c. Don't put any photos or videos of yourself on Facebook, even if they are from before the accident occurred. Ask your friends to avoid putting any pictures or videos of you on Facebook, and even if they do, request that they be removed or untag yourself right away;

d. Don't engage in any conversations about your injury case in online forums, blogs, chat rooms, message boards or even email;

e. If you are a Maryland or Virginia Chinese speaking, Korean speaking or Spanish speaking automobile accident victim, these rules also apply to you. Insurance companies are using interpreters to go through Facebook, Twitter and blog posts.

Hand-Held Cell Phone Use by Drivers of Buses and Large Trucks Banned

2011-12-02T16:34:01Z

U.S. Transportation Secretary announced a rule specifically prohibiting interstate truck and bus drivers from using hand-held cell phones while operating their vehicle. This new rule is certainly news to me. I would have thought that this rule was in affect for some time. The joint rule from the Federal Motor Carrier Safety Administration (FMCSA) and the Pipeline and Hazardous Materials Safety Administration (PHMSA) is the latest effort by the U.S. Department of Transportation to end distracted driving. Personally, the fact that the rule was not in affect until now is alarming. When drivers of large trucks, buses and hazardous materials take their eyes off the road for even a few seconds the consequences can be deadly. This rule will save lives by helping truckers stay focused on safety at all times.

]]> The final rule prohibits commercial drivers from using a hand-held mobile telephone while operating a commercial truck or bus. Drivers who violate the restriction will face federal civil penalties of up to $2,750 for each offense and disqualification from operating a commercial motor vehicle for multiple offenses. Additionally, states will suspend a driver's commercial driver's license (CDL) after two or more serious traffic violations. Commercial truck and bus companies that allow their drivers to use hand-held cell phones while driving will face a maximum penalty of $11,000. Approximately four million commercial drivers would be affected by this final rule.

While driver distraction studies have produced mixed results, FMCSA research shows that using a hand-held cell phone while driving requires a commercial driver to take several risky steps beyond what is required for using a hands-free mobile phone, including searching and reaching for the phone. Commercial drivers reaching for an object, such as a cell phone, are three times more likely to be involved in a bus crash or other safety-critical event. Dialing a hand-held cell phone makes it six times more likely that commercial drivers will be involved in a truck crash or other safety-critical event. Nearly 5474 people died and half a million were injured in crashes involving a distracted driver in 2009. Distraction-related fatalities represented 16 percent of overall traffic fatalities in 2009, according to National Highway Traffic Safety Administration (NHTSA) research. Many of the largest truck and bus companies, such as UPS, Covenant Transport, Wal-Mart, Peter Pan and Greyhound already have company policies in place banning their drivers from using hand-held phones. If you our someone you know has been injured as the result of a truck accident contact our Maryland truck accident lawyers and Virginia tractor trailer accident attorneys.

NSTB Study Finds Low-fare Buses Crash More Often

2011-11-03T20:24:00Z

Small, low-fare curbside bus companies are involved in fatal crashes seven times as often as those run by traditional companies such as Greyhound and Peter Pan according to a federal study. The smaller companies often pick up their customers by the curb, saving the cost of maintaining a presence in bus terminals. The same study, conducted by the National Transportation Safety Board, also showed that the federal agency in charge of oversight of buses is overwhelmed and understaffed, averaging one staff member for every 1000 companies. The report was done in the wake of a March 12^th bus crash in New York that killed fifteen and injured eighteen

]]> That crash involved a bus transporting gamblers home to New York's Chinatown from a Connecticut casino. The bus slid on its side and almost had the entire roof ripped off by a pole. The company that owned the bus was subsequently shut down by the Federal Motor Carrier Safety Administration.

The report's findings indicate that fatal accidents were more frequent in small companies that are relatively new to the bussing industry. Starting in 2005, the study shows that smaller, curbside companies average 1.4 fatalities per 100 vehicles while conventional bus companies averaged only 0.2 fatal accidents per 100 vehicles. If you or someone in you know has been injured in a bus accident contact the Virginia bus crash attorneys and bus accident lawyers at Portner & Shure.

Virginia Accident Facts You Should Know

2011-10-14T18:04:31Z

The Virginia State Highway Safety office has complied some interesting accident statistics. They include:

• (rush hours, no surprise) There were nearly 7,000 car accidents that happened in the 4:00 p.m. to 5:59 p.m. time period

• Most fatal car accidents happened after rush hour and it was dark, between 9:00 p.m. and 9:59 p.m.

• The highest percentage of injury crashes took place between 5:00 p.m. and 5:59 p.m.

• Safest time and lowest number of injury collisions occurred between 4:00 p.m. and 4:59 p.m..

Most fatal accidents occur after rush hour when it gets dark, while the most accidents occur during rush hour. In the Virginia area, therefore, if you can avoid driving, or reduce your driving at rush hour times, statistically you reduce your chances of being in an accident.

What Is the Difference in Virginia Between a Survival and a Wrongful Death Action?

2011-10-05T17:01:17Z

When an automobile accident, truck accident or doctor's negligence results in a fatality there are two separate claims that can be made on behalf of the victim's family and estate. A Virginia wrongful death attorney can bring a wrongful death action. This type of claim is brought by the immediate relatives of the victim. In a wrongful death claim the family seeks to recover for their losses resulting from the accidental death of a loved one. A Virginia personal injury lawyer can bring what is called a survival action on behalf of the victim's estate. A survival action claims damages for the injuries suffered by the decedent including the pain and suffering and other damages and actual expenses incurred by the victim up until the time of death. In Virginia, one must choose between a survival action and a wrongful death action. Virginia does not allow both claims to be pursued.

]]> In a wrongful death action in Virginia, the amount immediate family members can recover is determined by the emotional and financial harm they experienced as a result of their loss. In a wrongful death case the estate of the decedent is not involved and the family members of the victim are acting entirely on their own behalf. In a survival action in Virginia, the amount the decedent's estate can recover is determined by the harm to the actual victim. The representative of the estate brings the lawsuit on behalf of the decedent.

The Virginia personal injury attorneys and Virginia wrongful death lawyers at Portner & Shure are experienced in handling these types of lawsuits. Our attorneys balance professionalism, aggressiveness and compassion when we represent client's who have lost a loved one

What Is Contributory Negligence in a Virginia Automobile Accident Case?

2011-10-05T15:56:19Z

Virginia is one of five states that uses contributory negligence instead of comparative negligence. The majority of states use the doctrine of comparative negligence which means, when both the victim and the defendant contributed to an accident by failing to exercise a reasonable degree of care and caution, each party's degree of liability is apportioned. The total amount that an accident victim is awarded is lessened in direct relation to his or her own negligence. For instance, if a jury found that an accident victim was entitled to $1,000,000.00 in damages but found that the victim was 20% at fault, the jury award would be $800,000.00.

Virginia''s contributory negligence doctrine is more cut throat and can be a complete bar to an injured victim's recovery. Virginia personal injury attorneys often struggle to help clients because of this all or nothing rule. Under contributory negligence, the accident victim's failure to exercise a reasonable degree of care and caution, no matter how slight, is an absolute bar to recovery. If the defendant's lawyer can convince a jury that the victim was only 1% at fault, that individual will not recover any damages.

]]> Virginia personal injury lawyers have been struggling against the doctrine of contributory negligence since it was adopted, accident victims received some reprieve with the advent of the last clear chance doctrine. The last clear chance doctrine allows recovery by an accident victim, who would other wise be barred from recovery due to contributory negligence, if the defendant had the last chance to avoid the accident. When the defendant is negligent and the victim is contributorily negligent, the plaintiff can still recover damages if there is a showing that something new or sequential affords the defendant a fresh opportunity to avert the consequences of his original negligence.

What Rights Does a Person Without Legal Status Have in a Maryland or Virginia Personal Injury Claim?

2011-09-16T17:45:17Z

In today's world, with so many people living throughout the United States with varying degrees of immigration status, the question is constantly asked: what rights does a person without legal status have. Despite the hundreds of thousands of laws, and cases that fill the legal libraries, this question still has no clear and definite answer.

In a Virginia or Maryland personal injury action, many victims are unable to work for extended periods of time. In some serious cases, a Plaintiff may never work again. If an injured person is still young, the future lost wage claim can amount to hundreds of thousands, if not millions of dollars. The question is, if that person is not a citizen, and has no legal status in this Country, can they make a claim for the past and future lost wages. The answer may depend on what state the claim is brought in and what the political orientation of the state is.

For instance, in Virginia, if a person without legal status is injured on the job, while they can have their medical bills paid for, they cannot claim their lost wages. The Virginia legislature has decided that if a person shouldn't have been able to work because of their immigration status, then to pay them for missing that work would not make sense. On the other hand, in Maryland, the legislature has made the opposite conclusion. The Workers Compensation law in Maryland allows a person without legal status, that has been injured on the job, to make a claim for the wages that they have lost as a result of their injury. Perhaps the reason for the differences is that Virginia is typically more conservative a state than Maryland, both socially and politically.

In some cases, however, there is no answer as the issue is one that the courts and the legislature have failed to address. While the Supreme Court of the United States has considered some specific issues involving the rights of illegal immigrants, they have not decided whether a victim in a personal injury lawsuit that has no legal status is allowed to claim past and future lost earnings. This issue is still left up to the individual states. While some states like Texas have specifically allowed future wages to be awarded, other states have flat out denied that right, or have chosen to require the victim to show what the lost wages would be in the country that they maintain citizenship. In the mid Atlantic region, this issue has not yet been resolved.

If the courts follow the analysis that has been used in the realm of Workers Compensation, it seems likely that while Virginia may disallow such claims, Maryland will permit them. This knowledge could make a difference in an attorney's decision of where to file a personal injury lawsuit, or the manner that the lawsuit is prosecuted and defended. Portner and Shure deals with complex issues like these on a regular basis. Our injury practice does not just involve "cookie cutter" claims and lawsuits. We are prepared to take on the tough issues, and make the arguments that give our clients the best chance for the greatest success.

If you or a family member has been injured or killed in an automobile accident, truck, bus or motorcycle accident, and would like a free legal consultation or if you would like more information on car accidents please feel free to contact our office or visit us on the web at www.portnerandshureaccidentlawyers.com.

How do you give a doctor a check-up?

2011-08-31T18:11:54Z

I am always surprised that many people neglect to check their doctor's credentials? A doctor should not be chosen merely by a friends referral or geographic location. More work should go into finding a doctor then say finding a landscaper. There was a time when checking up on a doctor was difficult. Therefore, not doing any homework before picking was excusable. This is no longer the case. Now a little internet search could reveal that the doctor that you were about to select is actually incompetent.

Three factors need to be researched with respect to a physician: first, what are his credentials. Is he "board certified" in a particular area. When and where did he attend school and what has he done recently to supplement his education. Pay particular attention to this point if the physician is older. You want a doctor who is educated on the newest techniques and advances in medicine. Second, has the doctor been disciplined. In other words, has the State licensing board taken any action against him. Third, has the doctor been sued for malpractice.

Below are some links to help you learn more about your doctor:

Maryland / DC / VirginiaMaryland Doc Finder - The Maryland Board of Quality Assurance is a state agency which issues licences to physicians and other health care providers. The Board is responsible for investigating complaints against licensees and takes action against the license of those who fail to maintain Maryland's standards of medical care delivery.

District of Columbia, Department of Health - The mission of the Department of Health is to promote and protect the health, safety and quality of life of residents, visitors and those doing business in the District of Columbia.

Virginia, Department of Health Professions - to ensure safe and competent patient care by licensing health professionals, enforcing standards of practice, and providing information to health care practitioners and the public.

National Level - American Medical Association provides links to state disciplinary boards. AMA physician Select provides information on the training and certification of over half a million physicians licensed in the United States.

Health Grades - Health Grades also maintains a searchable database of over half a million physicians. The search will reveal whether a doctor has been sanctioned.

Data Banks

The National Practitioner Data Bank (NPDB) Licensing Boards report all actions that revoke, suspend, or restrict a license for reasons related to competence or conduct to NPDB. Further, professional societies must report all actions that adversely affect the physician, and hospital administrators must report disciplinary actions that negatively affect a doctors privileges for more than 30 days. In addition, malpractice insurance carriers are required to report all settlements against physicians. This information is available to Plaintiff's and their attorneys in a medical malpractice suit.

The Healthcare Integrity and Protection Data Bank (HIPDB) - collects information about licensor and certification actions, criminal convictions, exclusion from federal and state healthcare programs, civil judgements and other adjudicated decisions.

Car Accidents and Punishment

2011-01-05T18:41:52Z

A common misconception of plaintiffs in a personal injury action is that a claim can be made for punitive damages as a result of the car accident. The thought that a defendant driver can be punished for causing the accident is generally mistaken. In fact, in Maryland and Virginia, a defendant could be driving: using his cell phone, eating a Whopper with both hands, and reading a magazine, when he speeds into a school zone and strikes a school bus, and still not be responsible for punitive damages.

In almost all car accident cases, Maryland and Virginia follow the rule that in order to get punitive or exemplary damages, a defendant must intentionally cause an accident. It is not sufficient that the defendant be criminally negligent. There is, however, one significant exception. Unlike the Maryland courts, the Virginia laws make an exception for drunk drivers. While the common law is clouded as to the availability of punitive damages, the statutory law is not.

]]> Virginia Code Section 8.01-44.5 specifically provides for punitive damages against drunk drivers in a personal injury action when specific criteria is met. The plaintiff must demonstrate that the defendant's actions were willful and wanton and showed a conscious disregard for the rights of the plaintiff. This must be demonstrated by showing that the defendant had a blood alcohol concentration of 0.15 percent or more by weight by volume or 0.15 grams or more per 210 liters of breath; by the defendant knowing or should have known, at the time he began drinking alcohol, or during the time he was consuming alcohol, or during the time he was operating a vehicle, that his ability to operate a vehicle was impaired; and finally that the defendant's intoxication was a proximate cause of the accident and resulting injuries suffered by the plaintiff.

While the hurdles to get to this point are difficult, the benefit to a plaintiff injured by a drunk driver in an automobile accident can be significant. The Northern Virginia population has very little tolerance for drinking and driving and resulting accidents. Having the ability to argue that a defendant should be "punished", is a powerful tool for any plaintiff's lawyer, and one that can force insurance companies to settle car accident cases they would normally have taken to trial. An insurance company must assess the value of the personal injury case, not just based on the injury to the plaintiff, but also on the potential for a angry and retributive jury. This can force the insurance companies to make settlement offers far in excess of the amounts that they typically make.

If you or someone you know has been involved in a car accident or if you would like more information relating to motor vehicle accidents, please feel free to contact Portner & Shure. Our Virginia car accident attorneys are available to provide you with a free legal consultation.

Fireworks Injury Leads To $4.75 Million Jury Award

2010-12-15T21:17:23Z

A Northern Virginia firework show turned tragic when a mother and her two sons were seriously injured by a rocket. The injuries occurred when a box of linked fireworks, called a "finale box", accidently fell over sending a mortar into a crowd of onlookers. After knocking over one man, the rocket exploded next to Hollis as she sat with her three year old son in her lap. The rocket packed an extremely powerful charge, which exploded, causing massive injuries to Hollis and her son. "Katy" Hollis suffered ruptured eardrums and a traumatic brain injury which has affected her memory and ability to complete normal everyday functions. Her brain injury has left Hollis unable to accomplish the simplest of tasks without someone walking her through every step of the process. Hollis' son, Max, was also seriously injured after taking the force of the blast to his face. Doctors were forced to induce a coma for three days in order to treat Max's brain injury. The full extent of Max's injuries will not be known until he is in his early teens.

]]> The case against the fireworks company focused on the so called "finale box". A finale box typically consist of up to twenty five rockets clustered and wired together with timed fuses. Schaefer Pyrotechnics, the company responsible for the firework show in Vienna City, coordinated dozens of fireworks shows throughout Northern Virginia on the same night. Similar accidents involving the finale box occurred at about thirty other Schaefer shows on the same night, four of them in Northern Virginia. Fortunately, the accident in Vienna was the only one to result in serious personal injuries.

At the heart of this case is the theory of negligence. Hollis' attorney was able to show that Kimmel Schaefer, the owner of the fireworks company, knew finale boxes blew up frequently. Therefore the owner had a duty to take additional measures to protect the crowd from the potential danger. Schaefer did not take any additional measures and, as a result of his negligent oversight, a mother and her two sons suffered serious personal injuries. As a result of the accident, Hollis' medical bills and lost earning capacity were estimated at $1.9 million. The jury awarded a $4.75 million verdict for Katy Hollis and $45,000 to her older son, Alex, who was also injured in the accident.

If you or a family member is injured as a result of someone else's negligence, an attorney is instrumental in recovery damages for lost wages, medical bills and most importantly pain and suffering. If your family has been involved in an accident, you should immediately contact our Virginia personal injury attorney, Kevin A. Ruby, Esquire, and the attorneys at Portner & Shure to determine if negligence was the cause and whether recovery of damages is appropriate.

Two Virginia Families' Celebrations Become a Time of Mourning After Tragic Automobile Accident

2010-06-08T19:25:57Z

Gary Anthony Thorne was traveling northbound on Lee Highway, shortly after 4:00 p.m., Friday, May 21st ,when his SUV crossed over a median strip and six traffic lanes onto a bicycle path striking and killing a young teen, Abdel Ouahid Chadli. The driver, Mr. Thorne who was to turn 32 the next day, also died at the scene, in Fairfax County, Virginia.

Mourning replaced the graduation celebration for Abdel Ouahid Chadli, a senior and wrestler at Fairfax High School. The young man was the eldest of four boys who was a dedicated athlete and liked to work out at the gym and biked on the bike path for exercise on a regular basis. Chadli had been accepted at George Mason University and had hoped to become a veterinarian.

]]> car accident. It was also believed that his SUV had been in good mechanical order. Still, Fairfax police continue to investigate this unexplained accident.

While it is believed that Thorne did not have any known medical condition, it does not mean that one did not occur. In the event a medical condition was the proximate cause of this car accident, Chadli's family could be precluded from making a claim based on the "sudden emergency defense." With the help of an experienced personal injury lawyer there are ways around this "sudden emergency defense", depending on the circumstances.

Another possible cause of this accident could have been a phantom motorist cutting off Mr. Thorne's vehicle, which caused him to lose control of his vehicle in an attempt to avoid striking the phantom vehicle. If this turned out to be the cause of the car accident, Thorne's family and Chadli's family would both be entitled to make an uninsured motorist claim for the wrongful deaths of their loved ones.

If you, a family member or someone you know has been involved in a car accident or you need more information on car accidents, wrongful death claims or sudden emergency defenses, please contact Portner & Shure for a free consultation with one of our Virginia personal injury lawyers.