Answers to Your Questions About Mid-South Injury Lawsuits
Have questions about what to do if you have been injured in a car or truck wreck in Tennessee or one of the neighboring states? Don’t know how to proceed if a medical error or birth injury has harmed or killed a loved one in Memphis or another Tennessee location? The experienced trial attorneys at the Holton Law Firm have the answers you need. If you do not see your question answered here, contact our office to learn more about your individual case.
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What is the difference between a birth injury and a birth defect?
Of the nearly four million babies born in the United States each year, approximately 150,000 are diagnosed with a birth injury or birth defect, according to statistics from the Physicians Committee for Responsible Medicine. When parents learn that their newborn has been diagnosed with a birth injury or defect, it's important that they understand the differences between these diagnoses.
Birth defects are physical or biochemical abnormalities that occur during the infant's development. These abnormalities can be caused by genetics or other factors such as the use of illicit drugs, alcohol, or certain prescription medications during pregnancy, and they may result in lifelong physical or mental disabilities. Common birth defects include:
- Congenital heart disease
- Down syndrome
- Cleft lip and palate
- Spina bifida
- Club foot
Birth injuries are injuries and traumas sustained by otherwise healthy infants during the labor and delivery process, often as the result of a doctor or nurse's mistake. Birth injuries are particularly common in cases involving prolonged labor, delayed delivery, or instrument-assisted delivery. Common birth injuries caused by medical negligence include:
- Brain injuries such as Cerebral palsy
- Brachial plexus injuries such as Erb's palsy and Klumpke's palsy
- Broken bones such as clavicle fractures
- Cephalohematoma (bleeding underneath the cranium)
- Caput succedaneum (severe swelling of the scalp tissue)
The biggest difference between birth defects and birth injuries is that birth defects aren’t normally linked to a medical mishap and are not usually legally actionable. Exceptions may include cases where a birth defect is thought to have been caused by the use of a prescription drug linked to an increased risk of birth defects.
Experienced Representation for Birth Injury Plaintiffs
If your infant was diagnosed with a birth injury that you believe was caused by a mistake made by a doctor, nurse, or other medical professional during the labor and delivery process, you may be entitled to seek compensation. The knowledgeable birth injury attorneys with Holton Law Firm can help you explore your legal options. Contact Holton Law Firm today to schedule an appointment for a free initial case analysis.
What defenses are commonly used against a product liability claim?
Consumers injured by defective or unreasonably dangerous products may be entitled to compensation from the product's manufacturer or seller. However, financial recovery in product liability cases is far from guaranteed. Plaintiffs who file product liability claims often find themselves going head-to-head with high-powered corporate attorneys who are committed to finding ways to reduce their client's financial responsibility. To achieve this goal, product liability defense attorneys may employ a variety of tactics designed to refute the plaintiff's arguments, defeat the claim, or limit their client's legal liability.
If you're considering taking legal action after sustaining serious injuries from a defective or dangerous product, be prepared for these common product liability claim defenses.
Some state laws such as statutes of limitation or statutes of repose may be offered as defenses in product liability claims.
Statutes of limitation determine exactly how long a would-be plaintiff has to file a particular type of lawsuit. In Tennessee, the statute of limitations for product liability injury cases is one year, so the lawsuit must be filed within one year of the date the injury occurred. Filing a lawsuit after the statute of limitations has expired will, in most instances, result in the case being thrown out.
While statutes of limitation dictate how long a plaintiff has to file a lawsuit after sustaining an injury, statutes of repose cut off the right of action following the elapse of a specified time frame. This means, you can be barred from bringing a product liability claim, even if your injury has not yet occurred when the statute of repose expires.
Tennessee has a 10-year statute of repose for product liability claims that bars plaintiffs from filing lawsuits against a product's manufacturer or seller if it's been more than 10 years since the product in question was first sold to consumers.
Conduct-related defenses seek to shift the blame for the plaintiff's injuries to his own actions. Examples of conduct-based defenses include those involving:
- Comparative or contributory negligence. These defenses assert that the plaintiff was at least partially at fault for his own injuries. Because Tennessee follows modified comparative fault rules, plaintiffs who are partially to blame for their injuries can still potentially collect compensation provided their fault in causing the injury is 49% or less. However, comparative negligence may be used to reduce the amount of damages the plaintiff receives.
- Assumption of risk. Product liability attorneys may argue that the plaintiff was aware of the risks surrounding the use of the product in question but chose to voluntarily expose himself to those risks, rather than attempt to avoid them.
- Product modification or alteration. If the plaintiff or a third party modified or altered the product such as changing the design, construction, or formula or by removing relevant warnings or instructions, it may provide the product manufacturer or seller named in the lawsuit with an effective defense against liability.
- Product misuse. Attorneys for the defense may argue that the plaintiff was injured while using the product in a way that wasn't intended and couldn't have reasonably been foreseen by its maker.
Other Common Defenses
Product liability defense attorneys may also try to help clients avoid liability or reduce their financial obligations to plaintiffs by claiming that the defendant's product complies with all government or industry standards.
Attorneys may also opt for an “unusually susceptible consumer” defense, which tries to link the plaintiff's injuries to allergies or susceptibilities that couldn't have been foreseen by the manufacturer or seller.
Do You Need a Product Liability Lawyer?
If you were injured by a defective or dangerous product, you may be eligible for compensation. Experienced product liability lawyers can help you address potential defenses that could be used in your case. Contact Holton Law Firm today to schedule a free initial consultation to discuss the details of your claim with a legal professional.
Who pays the medical bills for passengers injured in car accidents?
Drivers injured in car accidents may be entitled to compensation for medical expenses, lost wages, pain and suffering, and other damages. But when passengers are hurt in a wreck, you may wonder who pays for their damages. Ultimately, it depends on who was responsible for the accident and how well insured the involved parties are.
For passengers seeking compensation for accident-related injuries and losses, the first step is to file a claim against the at-fault driver's insurance policy. Typically, these policies cover medical bills, lost wages, and even pain and suffering—but there’s often a limit. If a passenger's injuries are significant or costly, it may be necessary to pursue compensation from additional sources, and the injured victim has a number of options.
Car accidents are not always the fault of a single motorist. If the drivers of any of the other involved vehicles were found to be even partially responsible, injured passengers can file claims against their insurance policies, as well. However, the amount received can't exceed the total value of the claim.
In cases where the at-fault driver or drivers lacked insurance—or when the compensation recovered through their insurance policies is insufficient—injured passengers may be able to file a claim against the uninsured/underinsured provision of their own automobile insurance policy. In Tennessee, all liability car insurance policies automatically include uninsured motorist coverage. The limits for this type of coverage are equal to the policy's bodily injury liability limits.
Car Wreck Lawyers You Can Count On
If you were a passenger and injured in a car accident, the experienced car wreck lawyers with the Holton Law Firm can help you explore your legal options and identify all potential avenues of compensation. Contact the Holton Law Firm today to schedule an appointment for a free initial case consultation.
What steps should I take after a cerebral palsy diagnosis?
Finding out your child has a disability that requires life-long care can be traumatic and frightening for parents. Understanding the disability, the challenges it presents, and the legal options available to you can help you decide what to do after a cerebral palsy diagnosis.
What Is Cerebral Palsy?
Cerebral palsy is a serious central nervous system disability that can have wide-ranging, adverse effects on a child and will often impact movement and posture, as well as cognitive development. This disease and its treatments can be incredibly costly, as people with this disability often require a number of supportive care services, including special medical care, tailored education and social services, and the use of assistive devices such as braces, walkers, and wheelchairs.
Over a lifetime, these necessary services cost an average of $921,000 per person, according to a Centers for Disease Control and Prevention (CDC) Morbidity and Mortality Weekly Report (MMWR), published in 2003.
Caring for someone with cerebral palsy can be extremely expensive. However, if your child's cerebral palsy was caused by oxygen deprivation during the birth process, you may be eligible to seek compensation for medical malpractice related to a birth injury.
After a Cerebral Palsy Diagnosis
When you're faced with a cerebral palsy diagnosis, take the following steps to help ensure your child is able to receive the appropriate care:
- Find the right pediatrician. Look for a doctor who has experience treating children with cerebral palsy and can develop a treatment plan that meets your needs, as well as address any concerns you may have.
- Hire an attorney. A knowledgeable personal injury attorney can help you pursue compensation for your child's birth injury and work to ensure you receive a fair settlement offer.
Do You Need a Personal Injury Attorney?
If you're considering taking legal action in a birth injury case, the skilled personal injury attorneys with the Holton Law Firm can provide the honest, yet aggressive, representation you need. Contact our Memphis law office today to schedule a free initial consultation about your case. You can also request a free copy of our eBook, Answers to Parents' Questions About Birth Injuries, for more information.
Can a doctor’s mistake cause both birth defects and birth injuries?
Birth-related medical malpractice happens when a medical professional or a hospital fails to use reasonable care during a woman’s pregnancy and the labor and delivery of her child. When anyone on the medical staff acts negligently, it can cause a birth defect and/or a birth injury that may affect a child for the rest of his life.
Birth Defects and Medical Negligence
Every 4.5 seconds, a baby with a birth defect is born in the U.S., according to the Centers for Disease Control and Prevention (CDC). A birth defect is a structural change that occurs at birth and can impact almost any part of a baby’s body. This change may affect how the body part looks, functions, or both. It can last a lifetime or even end in death.
One common birth defect is cerebral palsy, and a child with this condition will typically have difficulty controlling muscle motion. A newborn may suffer from cerebral palsy for a variety of reasons, including not getting enough oxygen flow to the brain (referred to as hypoxia) or enough oxygen to the body (referred to as asphyxia). Umbilical cord problems and excessive hemorrhaging during pregnancy or delivery can also cause cerebral palsy. Often, a doctor’s mistake or series of mistakes is the cause of a birth defect that could have been prevented.
Birth Injuries and Medical Negligence
Birth injuries can also be caused by medical negligence. These injuries include:
- Muscular injuries
- Skeletal injuries
- Nerve damage
- Brain damage
Some of these may result from an unavoidable complication, but most occur because a doctor:
- Uses excessive force to pull or rotate the baby
- Uses extraction tools improperly such as forceps or a vacuum
- Fails to monitor the vital signs of the fetus or mother, or both
- Fails to give a cesarean section when necessary
- Gives the wrong dose or wrong medication
A Team Committed to Your Case
If you believe a doctor, nurse, or other medical staff member injured your baby or is responsible for a birth defect, it’s important to contact an experienced attorney. At the Holton Law Firm, we want to put our combined years of experience to work for you. To begin a conversation with a member of our team, contact us today.
What if I've used a defective product in a way not intended by the manufacturer?
When a consumer purchases a product, he does so with the expectation that the product will be both safe and effective. Buyers trust that manufacturers have upheld their responsibility to let only tested goods out into the market. There are times, however, when this is not the case. Dangerous or defective products find their way into the hands of consumers and cause significant harm. In some cases, the liability of the manufacturer is clear. However, there are other times when a consumer is unsure of his rights, especially when the product was not necessarily used as intended. So, it’s important for consumers to know their options.
The Elements of Product Liability in Tennessee
To pursue a successful product liability case in Tennessee, victims must show that the manufacturer is at fault for their injuries or other damages. In general, it must be proved that:
- A person suffered an injury
- The product used was defective or dangerous
- This defect caused the injury
Defects can be shown in design, manufacturing, or failure to warn. A design defect would indicate an inherent flaw in the product that makes it dangerous, while a manufacturing defect would be a problem with some specific part of the product. Failure to warn refers to a manufacturer’s duty to provide warnings about ways in which the product could potentially cause harm and instructions for its proper use.
Who Is Liable When Consumers Don’t Follow Use Instructions?
In general, it is expected that a consumer follow the product instructions and use the product as the manufacturer intended. However, there is some leeway when addressing this guideline. Tennessee statutes state that manufacturers should take into consideration both the intended use and other uses that could be reasonably expected from the general public. This means, even if a person is injured while using a product outside of the specific intent, but still in a manner that is reasonable for other ordinary consumers, the victim could still pursue a legal claim. Manufacturers should offer products that will be safe in all of the ways people may be expected to use them. While this guideline may not apply in every case, it can be possible to obtain compensation if you or someone you love suffered injuries from a defective product even if it was used outside its stated purpose.
Every situation is unique, and the experienced product liability attorneys at Holton Law Firm can help you understand your rights. Call our Memphis office today to learn more about your possible legal options, and schedule a free, no-obligation consultation.
Hurt In A Wreck? Call Our Office Today.
Life is often very frantic after a car accident, but it is very important to remain calm. Below is a list of the steps you should take if you were in a car accident in Tennessee.
First, bring your car to a stop, and put on your hazard lights if they are still functional.
Second, you want to check yourself and any passengers for any injuries. Look for any serious injuries, and when in doubt call for an ambulance.
Third, call 911 or your local police non-emergency number. You want to have a police report made that documents the accident. Accident reports establish who was driving, what insurance was covering the vehicle, and how the vehicles made impact.
Fourth, exchange insurance information with the other driver. You should also make note of their license plate number, and drivers license number when possible. This information should be included in the accident report, but the report will not be immediately available to you.
Fifth, take pictures or video of the vehicles and the accident scene. If there are any witnesses to the accident, be sure to ask them for their name and number so that they can be contacted at a later time.
Sixth, do not sign any insurance documents before consulting with a lawyer. Insurance companies are notorious for trying to settle claims cheaply and quickly right after the accident happens. They know that an accident can turn life upside down, and early on it is less likely the injured person has had time to consider any long term damages.
Recently we heard of two young parents who were horrificly injured in a car accident which left them in the ICU for weeks. Before they had even finished their medical treatment, the insurance company was calling them trying to settle their claims for less than two weeks of lost wages. The unfortunate reality was that those serious injuries had lifelong implications, and those two weeks of lost wages would have been less than a drop in the bucket.
If you've been injured in an accident, call our office at 901-523-2222. We know how to help.
What Causes Car Accidents?
It is true that no two car accidents are exactly alike, but there are certain common elements that show up time and again in the accidents that we review at the Holton Law Firm. We hope that you will take note of the following list of common causes of car accidents.
- Distracted Driving- In today's modern age of technology, the likelihood of driving while distracted has increased dramatically. In fact, each year, more and more accidents occur because someone was texting, checking facebook, or taking a selfie with their phone. Often these accidents involve rear end collisions where the driver's focus shifts from the road to a phone or other device and doesn't see traffic slowing or stopping.
- Drunk Driving- Even With the increasing availability of affordable ride-sharing services like Uber and Lyft, drunk driving continues to be one of the most deadly causes of car accidents. Driving under the influence of alcohol or drugs (even prescription drugs) has consistently been shown to decrease reaction times, coordination, and focus, and makes car wrecks more likely.
- Excessive Speed- It may seem like a victimless crime to exceed the posted speed limit, but speeding is often a cause of accidents. Having an accident at more than 55 mph significantly increases the chances of your vehicle rolling over in the crash. Speeding also makes defensive driving more difficult because the faster your vehicle is traveling the less time you will have to react to sudden stops or improper lane changes from other drivers.
- Hazardous Weather Conditions- Whether it is rain, fog, sleet, snow, or ice, hazardous weather conditions cause or contribute to many wrecks every year. Safely driving in these weather conditions often involves driving at lower speeds with your windshield wipers and lights on. In extreme conditions where visibility is exceedingly low, you can use the hazard lights to help alert other drivers to your presence.
- Reckless Driving- Reckless driving can include improper lane changes, failing to use turn signals, following too closely, or swerving within the lane. Reckless drivers are often focused on getting somewhere, on "beating" others in traffic, or on a distraction such as music, phone, or other electronic device.
- Roadway Defects or Obstructions- Defects and obstructions to the road can include potholes, debris from another accident, wildlife such as deer, or construction cones or barrels that are improperly placed without adequate warning. These defects and obstructions can cause sudden stops or swerving in drivers who are caught off guard.
There are many causes of accidents, but paying attention to these six will help you become a safer driver.
What Causes a Car to Rollover?
Rollover accidents carry a higher fatality rate than any other type of crash. While vehicles rolling over is not common in car accidents, rollovers still account for nearly 200,000 accidents in a year.
There is no way to absolutely rule out rollovers, but there are certain risk factors that you can avoid to make a rollover less likely. It is significant to note that more than 80% of rollovers are single vehicle accidents. As you will see in the list that follows, this is directly tied to the fact that the majority of risk factors for rollovers are irresponsible driver behaviors.
- First, the majority of fatalities in rollover accidents involved persons who were not wearing seatbelts. This is true for any type of collision, but it bears repeating that the first line of defense in an accident is a buckled seatbelt.
- Second, almost 50% of all rollover crashes involve alcohol. Again, this is true for preventing any type of collision, but driving drunk is a behavior that endangers the drunk driver as well as innocent passengers and other drivers. It has been well documented that reaction times, decision making, and coordination are all impaired when the driver is under the influence of alcohol.
- Third, roughly 40% of all rollover crashes involved excessive speed. Most of the accidents happened where the posted speed limit was 55 mph or above. Again, this is a risky driver behavior that can endanger the life of not only the driver, but also his or her passengers.
- Fourth, the majority of rollovers happen in rural locations where roads are more likely to be narrow without separation between lanes or barriers, and the speed limit is more likely to be 55 mph or above. Further, rural roads are often winding with twists and turns and poor visibility.
- Fifth, certain vehicle designs are more likely to rollover when involved in a single vehicle crash. Generally those include tall and narrow vehicles such as SUV's, pickups and vans. These vehicles have a higher center of gravity which makes them less stable and more prone to rollover. If you are concerned that your vehicle may be more likely to rollover, please search for information provided by the National Highway Traffic Safety Administration at https://www.nhtsa.gov/ratings.
For your safety and the safety of others, please take note of these risk factors. Drive sober, avoid distractions, and watch your speed.
What is Klumpke’s palsy?
A doctor must meet an expected standard of care each time he cares for a patient, which includes making good decisions during a complex birth. If the doctor who delivered your child used excessive force or pulled the baby from the birth canal by an arm extended above the baby’s head, damage to the child’s nerves can result—known as Klumpke’s palsy. It’s important to understand this condition, how you can identify it, and how a lawyer can help determine if you have a birth injury lawsuit.
Understanding Klumpke’s Palsy
Also known as Klumpke’s paralysis or Dejerine-Klumpke palsy, Klumpke’s palsy is a condition resulting from injury to a newborn’s brachial plexus—the network of nerves sending signals from your spine to your hand, arm, and shoulder. This injury occurs when:
- The nerves are totally severed from the spine
- The nerves are torn at an area not connected to the spine
- The nerves are overstretched
- The nerves were injured but did not heal properly
This type of birth injury usually occurs during a vaginal delivery, and it could be the result of a doctor’s negligence. Common symptoms of this injury include:
- Rigid, claw-like hands
- Asymmetrical posturing
- Bent arm held close to the body
- Weak muscle on the affected side
- Diminished sensation or function in the arm, or total paralysis
- Excessive pain
Although not every birth injury is caused by a doctor’s negligence, it’s possible your baby’s Klumpke’s palsy was preventable. A delivery becomes more complicated and difficult if:
- The baby is large
- The baby has a large head
- The mother has a small pelvis
These scenarios may lead a doctor to use more force when helping the baby exit the birth canal and pull too hard or pull on the baby’s arm, which is often extended over the baby’s head. This extra force can lead to injuries resulting in Klumpke’s palsy.
Effects of Klumpke’s Palsy Could Last a Lifetime
Determining whether you have a potential birth injury lawsuit is important because the effects of an injury leading to Klumpke’s palsy could last the rest of your child’s life. Many injuries to the brachial plexus will heal with no complications. However, other injuries may lead to long-lasting or permanent consequences—which means your baby could need continued medical attention. Common complications associated with Klumpke’s palsy include:
- Pain. It’s not uncommon that nerve damage results in pain. This may be connected to how the nerves heal and if any scar tissue exists.
- Stiffness. Because the pain limits mobility during the healing process, it’s possible joints and muscles will become stiff and difficult to move, or they may even stay rigid after the injury is healed.
- Permanent disability. The nerves in the brachial plexus could heal improperly, failing to restore connectivity with the brain and losing functionality entirely.
- Loss of feeling. It’s possible that scar tissue or improper healing will result in loss of feeling in the shoulder, arm, and hands.
- Atrophy. Nerves can take a while to heal, and it’s important to keep in mind that some nerves must regrow. As this happens, your baby’s muscle might atrophy—which could mean muscle deterioration or prolonged weakness.
During childbirth, if a baby’s nerves were simply stretched, the injury typically heals more easily. If the baby’s nerves were torn, the injury may be improved by engaging in prescribed physical therapy to keep the joint active and get blood flowing to the area. Additionally, a doctor may recommend surgery to remove scar tissue if he believes the injury isn’t healing as well as it needs to.
Your Baby Deserves Quality Representation
If your baby suffered injuries during delivery, you should speak with an attorney. The legal team at The Holton Law Firm can review your case, help determine if you have a birth injury case, and provide superior representation, if necessary. To get started on your case, contact a team member today by calling our toll-free phone number.