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Overview of The Jones Act and Seamen’s Injuries

malta lavoro barca

Learn the basics of The Jones Act and maritime worker injuries.

The Jones Act is a federal law that gives seamen who were injured in the course of their employment the right to sue their employer for personal injury damages. Unlike almost all land-based workers, seamen are not entitled to workers’ compensation benefits under either state or federal law. Because injured seamen cannot file workers’ compensation claims against their employers, the only compensation that they are legally entitled to receive for their injuries is through the Jones Act and the general maritime law. This article will focus on the unique issues that come up in Jones Act negligence cases.

What is a Seaman?
In general, a seaman is a person — from crewmember to captain — who performs a significant amount of his/her work on a vessel (any kind of ship or boat). Part-time seamen must spend at least 30% of the time working on a vessel in order to qualify under the Jones Act.

Because seaman status is a difficult issue of maritime law, if you were injured at work and think that you might qualify as a Jones Act seaman, you should contact a maritime personal injury lawyer as soon as possible.

What Does The Jones Act Do?
The Jones Act allows an injured seaman to sue an employer for negligence. In order to recover damages from the employer, the seaman must prove that the owner, captain, and/or crew of the vessel that the seaman worked on were negligent, and that their negligence was a cause of the seaman’s injury.

What is Negligence Under The Jones Act?

  • The Jones Act requires a seaman’s employer to:
    provide the seaman with a reasonably safe place to work, and
  • use ordinary care under the circumstances to maintain and keep the vessel on which the seaman works in a reasonably safe condition.

A maritime employer is liable to the seaman under the Jones Act for the negligence of any of its employees, including the seaman’s captain and co-workers.

The Jones Act is a very employee-friendly law. It places a great burden on a seaman’s employer to ensure that the seaman’s workplace is reasonably safe. An employer can be held liable under the Jones Act for all types of unsafe conditions on a vessel such as:

  • grease or oil on the deck
  • breakage of equipment
  • improperly maintained equipment
  • the employer’s failure to provide crew members with the proper equipment for them to do their work
  • improper training of the seaman or of the crew in general
    unsafe work methods
  • negligence of the seaman’s co-workers, and
    assault by a co-worker.

Let’s look at a couple of examples of Jones Act negligence to see just how employee friendly the Jones Act is.

Let’s say that a deckhand is mopping the deck next to a door and doesn’t cordon off the area. If another deckhand comes out of the door and slips on the deck, the injured deckhand has a good chance of suing his/her employer for negligence because the first deckhand failed to notify other crew members that the deck was going to be soapy and slippery.

Another example might be if the ship owner fails to have the vessel’s equipment properly maintained. This requirement extends to every part of the vessel and every single piece of equipment on the vessel. Let’s say that a hatch cover gets rusty and becomes very difficult to open. If a crew member injures his/her back trying to lift the hatch cover, the employer will be liable for failing to have properly inspected and repaired the hatch cover.

A Jones Act employer can even be liable for hiring and/or failing to fire a violent crew member. Ships can be tough places, but, if a crew member has developed a reputation for being violent or even threatening with his co-workers, the employer has a legal duty to get that person off the vessel.

Lower “Burden Of Proof” Under The Jones Act
In standard negligence cases, the plaintiff must prove that the defendant’s negligence was a proximate cause of the plaintiff’s injury. Proximate cause is a legal term that usually means the plaintiff must prove that the defendant’s negligence played a substantial part in causing the injury. Usually, this means that the defendant’s negligence had to have been the main cause of the plaintiff’s injury.

However, under the Jones Act, a plaintiff’s burden for proving that the defendant’s negligence was a proximate cause of the plaintiff’s injury is much lower. This is a key aspect of the Jones Act.

In order to prove causation under the Jones Act, the plaintiff need only prove that the employer’s negligence played any part — however small — in the plaintiff’s injuries. There could have been three other more significant causes of the injury, but the plaintiff would still be entitled recover damages against a Jones Act employer as long as the employer’s negligence was even a one-percent cause of the injury.

Damages Under The Jones Act
An injured seaman is entitled to all of the usual types of damages in a personal injury case, such as compensation for lost earnings and lost earning capacity, past and future medical expenses, pain, suffering, and mental anguish. Some courts also allow the seaman to be awarded interest on his/her damages.

Where Can a Seaman File a Jones Act Lawsuit?
A seaman can file a Jones Act lawsuit in either state or federal court.

How Long Does a Seaman Have to File a Jones Act Lawsuit?
A lawsuit under the Jones Act must be filed within three years of the date of the injury.

Disclaimer: This information is not a substitute for legal advice. Laws change from time to time, so if you are injured, protect your rights and call today at 1-800-598-2440 or contact the Womick Law Firm online.

For more information regarding this post, please visit Nolo.com.

When Can You File a Claim for Workers’ Compensation?

Injury claim

You can file a claim for workers compensation benefits as soon as you become injured on the job or develop an illness that is related to your work. In fact, delaying filing for workers’ comp benefits after you’ve become sick or injured can pose a distinct disadvantage and potentially allow a workers’ compensation insurance carrier to deny a worker compensation benefits. At the least, a significant amount of time between when the injury allegedly occurred and when it is reported can throw up red flags for an insurance carrier who suspects that a benefit claim is not wholly legitimate.

Things get more complicated when you have an illness or injury that developed over time, such as mesothelioma or carpel tunnel syndrome (known as a continuous, or cumulative, trauma injury). In these cases, the clock starts ticking toward your deadline when 1) you took time off work because of the injury or see a doctor for the injury, and 2) you knew, or should have known, that the injury was caused by your work.

Initiating the workers’ comp process involves notifying your an employer of your injury or work-related illness and, in most states, filing a formal workers’ comp claim. Employer notification of an injury or illness should be made promptly and should include pertinent details such as the date, time, and place of the injury, as well as how the injury occurred. A worker may also wish to provide a list of witnesses if the injury was due to a specific workplace accident.

Disclaimer: This information is not a substitute for legal advice. Laws change from time to time, so if you are injured, protect your rights and call today at 1-800-598-2440 or contact the Womick Law Firm online.

For more information regarding this post, please visit DisabilitySecrets.com.

Product Liability Claims

Business man with the text Product Recall

Thousands of people are injured each year while using manufactured products. Some injuries happen in normal use of perfectly good products. Many of these injuries though are caused by defective products. If you’re hurt by a defective product, you can be compensated for your injuries.

Product Liability a Consumer-Driven Concept

Product liability is a relatively new concept, so far as the law goes. It burst on the scene in the last half of the 20th century, just as mass production and consumerism took off. Because we live in a consumer-driven economy, it didn’t take long for product liability law to become fully formed.

The law is well-developed and understood. It breaks out into three types of lawsuits: negligence, strict liability and breach of warranty. The forms don’t vary much between states, but there are some differences lawyers and their clients need to understand. Common elements among state laws include:

Defect: you need to prove the product was defective
Causation: you were hurt by and because of the product defect
Injury: you sustained an actual injury because of the product defect
Duty: the seller or manufacturer owed you a duty to make or sell a safe product. Duty is more or less assumed in the usual product liability case.

Negligence Cases
This case type most resembles an ordinary negligence lawsuit. In addition to duty, defect, causation and injury, you need to prove that the manufacturer or seller breached its duty to you. Usually you prove the seller or manufacturer was aware of the defect or should have been aware based on information known or available to it.

Strict Product Liability
Strict liability attaches to the maker of an unreasonably dangerous product. You won’t have to prove the maker was negligent or that there was a manufacturing or design defect.

Breach of Warranty
When the maker of a product warrants its characteristics, if it fails in one of those characteristics and the failure causes your injury, you have a breach of warranty lawsuit. Warranties can be express (written or sometimes verbal) or implied by law.

What Is a Defect?
You may be injured using a product, but if it isn’t defective, you can’t recover for your injuries. For example, perfectly good baseball bats sometimes break in use, but it isn’t a defect if you happen to be hit as the end of the bat detaches from the handle. If the bat maker failed to detect a flaw in a specific bat and it hurt you, you might recover.

There are three product defect types:
Manufacturing Defect: Consider the baseball bats. Let’s say the maker has no process for inspecting the wood used in making the bats. It makes some bats containing knots or voids. One of these breaks and injures you. You have a product with a manufacturing defect.

Design Defect: Sticking with bats, say the maker decides to build a new type of bat with an aluminum head attached to a composite handle. It seems superior, but after a certain amount of use and contact, the head tends to detach from the handle. You’re hit by a detached bat head. That’s a design defect. In some cases where the product is of great utility you may have to prove the product is on whole more dangerous than useful.

Failure to Warn: Let’s move from bats to wood mauls. You use a maul to split firewood. The maul is wedge-shaped and the blunt end looks like a good substitute for a sledge hammer. You strike a spike with this end, the wedge splinters and a piece flies into your eye.

Your case could turn on whether there was a proper warning label on the maul. If there’s not a warning about product use, the maker may face for failing to warn about safe use.

Disclaimer: This information is not a substitute for legal advice. Laws change from time to time, so if you are injured, protect your rights and call today at 1-800-598-2440 or contact the Womick Law Firm online.

For more information regarding this blog, please Product-Liability-Lawyers.com.

Medical Malpractice Basics

Learn about medical malpractice and how to prove a claim.

Medical malpractice occurs when a patient is harmed by a doctor (or other medical professional) who fails to competently perform his or her medical duties. The rules about medical malpractice — from when you must bring your lawsuit to whether you must notify the doctor ahead of time — vary from state to state. But there are some general principals and broad categories of rules that apply to most medical malpractice cases. Here’s an overview of the law and some of these special rules.

 

Basic Requirements for a Claim

To prove that medical malpractice occurred, you must be able to show all of these things:

A doctor-patient relationship existed. You must show that you had a physician-patient relationship with the doctor you are suing — this means you hired the doctor and the doctor agreed to be hired. For example, you can’t sue a doctor you overheard giving advice at a cocktail party. If a doctor began seeing you and treating you, it is easy to prove a physician-patient relationship existed. Questions of whether or not the relationship exists most frequently arise where a consulting physician did not treat you directly.

The doctor was negligent. Just because you are unhappy with your treatment or results does not mean the doctor is liable for medical malpractice. The doctor must have been negligent in connection with your diagnosis or treatment. To sue for malpractice, you must be able to show that the doctor caused you harm in a way that a competent doctor, under the same circumstances, would not have. The doctor’s care is not required to be the best possible, but simply “reasonably skillful and careful.” Whether the doctor was reasonably skillful and careful is often at the heart of a medical malpractice claim. Almost all states require that the patient present a medical expert to discuss the appropriate medical standard of care and show how the defendant deviated from that standard.

The doctor’s negligence caused the injury. Because many malpractice cases involve patients that were already sick or injured, there is often a question of whether what the doctor did, negligent or not, actually caused the harm. For example, if a patient dies after treatment for lung cancer, and the doctor did do something negligent, it could be hard to prove that the doctor’s negligence caused the death rather than the cancer. The patient must show that it is “more likely than not” that the doctor’s incompetence directly caused the injury. Usually, the patient must have a medical expert testify that the doctor’s negligence caused the injury.

The injury led to specific damages. Even if it is clear that the doctor performed below the expected standards in his or her field, the patient can’t sue for malpractice if the patient didn’t suffer any harm. Here are examples of the types of harm patients can sue for:

  • physical pain
  • mental anguish
  • additional medical bills, and
  • lost work and lost earning capacity.

Common Types of Medical Malpractice

A wide variety of situations can lead to a medical malpractice claim — from a doctor leaving a sponge in a patient’s stomach during an operation to failing to tell a patient that a prescribed drug might cause heart failure. Most medical malpractice claims fall into one of these categories:

Failure to diagnose. If a competent doctor would have discovered the patient’s illness or made a different diagnosis, which in turn would have led to a better outcome than the one actually achieved, then the patient may have a viable medical malpractice claim.

Improper treatment. If a doctor treats the patient in a way that no other competent doctor would, the patient could have a medical malpractice claim. In a similar vein, it may also be malpractice if the doctor selects the appropriate treatment but administers it incompetently.

Failure to warn a patient of known risks. Doctors have a duty to warn patients of known risks of a procedure or course of treatment — this is known as the duty of informed consent. If a patient, once properly informed of possible risks, would have elected not to go through with the procedure, the doctor may be liable for medical malpractice if the patient is injured by the procedure (in a way that the doctor should have warned could happen).

 

Special Requirements in Medical Malpractice Cases

Many states have special rules and procedures for medical malpractice claims. It is important to know about these rules and follow them carefully.

Medical malpractice cases must be brought soon after the injury. In most states, you must bring a medical malpractice claim fairly quickly — often between six months and two years, depending on the state. (The time period in which you must bring the lawsuit is called the “statute of limitations.”) If you don’t file the lawsuit within the specified period of time, the court will dismiss the case regardless of the facts.

When the time period starts ticking also depends on the state. In some states, the clock starts when the negligent act occurred; in others, it starts when the patient should have discovered the injury.

Special medical malpractice review panels. Many states require the patient to first submit the claim to a malpractice review panel. This panel of experts will hear arguments, review evidence and expert testimony, and then decide whether malpractice has occurred. The panel decision does not replace an actual medical malpractice lawsuit, and the panel cannot award damages, but it’s a hoop the patient must jump through before getting to court. The findings of the review panel can be presented in court, and courts often rely on a review panel’s finding of no medical malpractice to throw out a case before it goes to trial.

Special notice requirements. Some states require that the patient give the doctor notice of the malpractice claim, in the form of a basic description, before filing anything.

Expert testimony is required. Expert opinions are often a crucial feature of the patient’s case. A qualified expert is usually required at trial. (And often, expert testimony or an expert affidavit is required at the malpractice review panel proceedings prior to commencing trial.) State rules vary as to what makes somebody qualified to provide expert medical testimony, but generally it is someone with experience in the particular field at issue. In a very limited number of circumstances, expert testimony is not required, such as when a surgical towel is left inside the patient after a surgery.

Limits on damage awards. Many states limit or “cap” the amount of money that can be awarded to a medical malpractice patient.

Disclaimer: This information is not a substitute for legal advice.  Laws change from time to time, so if you are injured, protect your rights and call today at 1-800-598-2440 or contact the Womick Law Firm online.

 

Getting Help

Medical malpractice law is highly regulated by a complex body of rules, which vary considerably from state to state, so it’s often essential to get advice or representation from a lawyer.

 

http://www.nolo.com/legal-encyclopedia/medical-malpractice-basics-29855.html

Lifeguard Liability: 3 Things Swimmers Should Know

lifeguard liabilityBy Brett Snider, Esq.

Lifeguards may seem like towering figures with their tall posts and zinced noses, but they can be liable for swimming injuries and deaths when they make mistakes.

For this reason, lifeguards are required to be certified and trained to deal with common emergencies that occur in and around pools. Different states’ safety standards are not always identical, but they form a general patchwork of legal liability for when lifeguards falter in their duties.

For swimmers, here are three things you should know about lifeguard liability:

1. Lifeguard Duties, Certifications Are Regulated by State Law

There is no federal standard for how lifeguards need to be trained and certified, but most states have statutes which require Red Cross lifeguard and CPR training (or their equivalents) before an applicant can work as a lifeguard. For example, Texas requires lifeguard, CPR, and community first aid training for all lifeguards on duty, and where lifeguards are provided, no swimmers can be present in the pool unless a lifeguard is on duty.

States may also define what a lifeguard can do in terms of their on-job duties. California limits on-duty lifeguards to perform no duties “other than to supervise the safety of participants in water-contact activities.”

2. Standards Are Higher for Lifeguards

Because of this web of legal requirements woven by state laws, lifeguards are often held to a higher legal standard when a person is injured or dies under their watch. In injury cases involving negligence of an average person, the law asks only if that person acted in giving the same care as a reasonable person might under those circumstances.

Those who belong to professions which have specific training related to injury, like lifeguards, are held to a different standard of care: How a reasonable lifeguard would have acted under the circumstances. This may lead a court to find a lifeguard negligent in providing aid when a reasonable lay person may have acted the same way.

3. No ‘Good Samaritan’ Protection

Unlike most people, on-duty lifeguards do have a legal duty to rescue and provide emergency aid to those in need — it’s pretty much their main jobs. For this reason, “Good Samaritan” protections do not provide lifeguards legal cover for mistakes or negligence on the job that leads to injury or death.

If you or a loved one has been injured by a lifeguard, contact a personal injury attorney today.


Disclaimer: This information is not a substitute for legal advice.  Laws change from time to time, so if you are injured, protect your rights and call today at 1-800-598-2440 or contact the Womick Law Firm online.


Information from findlaw.com

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