(360) 576-5322 ELEMENTS OF MEDICAL MALPRACTICE
Elements. To sue for medical malpractice, you must prove four elements: duty, breach, causation and damages. Allow me to explain.
Duty. A physician must treat a patient at the professional standard of care of the average physician in the medical community. Sdpecialists must meet or exceed the standard of care of specialists in their area of specialty.
Breach. A physician breaches his duty of care if he does not meet the standards discussed above.
Causation. You must also prove that that breach directly caused your damages. For example, a patient is allergic to medication X. The doctor knows about the allergy and prescribes medication X in error. You have a heart attack and die. The patient was allergic to medication X, but the allergic side effects do not include heart attacks. Therefore, there was no causation between the wrongly prescribed medicine and the heart attack. There is no cause of action for malpractice. Conversely, ff one of the allergic side effects was heart failure, there would a cause of action for medical malpractice.
Damages. Once it is shown that the physician has breached his duty of care and that breach has caused the harm in question, you must show that you have monetary damages. Sometimes, a physician has breached his duty of care causing injuries, but there are no monetary damages. Above, the doctor prescribed medication X he knew you were allergic to. If you only sneezed a few times and got watery eyes for a few hours not causing lost work or any pain, you would not be able to sue for medical malpractice because you sustained no monetary damages. Conversely, if you develop severe sneezing and watery eyes that persisted for several months causing you to miss work and experience great pain and irritation, there would be monetary damages and you could therefore sue for medical practice.
Attorney Jonathan Gill, Salmon Creek Law Offices, (360) 576-5322
number of view: 17
(360) 576-5322 Insurance Companies and Wrongful Death
The unexpected death of a family member is devastating. It is even more devastating when the death is caused by the negligence of someone else. Wrongful death can arise from a car, truck, bicycle or motorcycle accident; accidental shooting; or medical or dental malpractice.
When you lose a loved one at the hands of another, not only must you make the normal arrangements, you are forced to deal with the insurance company of the wrong-doer and your own insurance company. It is common for the insurance company to make you feel like they are on your side and that they want you to get the money you deserve quickly.
BEWARE. Despite what the television commercials portray, insurance companies exist to make money. Therefore, the insurance company you are dealing with (including your own insurance company) is acting 100% in their best interest. The earlier they can get you to settle a claim before you are aware of the full extent of your loss, the better it is financially for the insurance company. If you are not willing to settle quickly and not represented by an attorney, the insurance company will drag things on and on. Without the real possibility of a lawsuit, the insurance company has absolutely no reason to settle. The longer the insurance company can keep the money to which you are entitled, the more interest they can earn from your money.
Insurance Company Behavior. Consider this: IF insurance companies behaved ethically, honestly, fairly– there would be no need for attorneys and especially no need for laws protecting consumers from insurance companies.
There are many ins and outs of a wrongful death claim. Make sure you have an attorney on your side looking after your best interest — be assured, the insurance company will be looking after their best interest.
Attorney Jonathan Gill, Salmon Creek Law Offices, (360) 576-5322
number of view: 24
Millions of motor vehicle accidents happen each year–thankfully only a small percentage of those accidents result in death http://www.census.gov/compendia/statab/2008/cats/transportation/motor_vehicle_accidents_and_fatalities.html . Many accidents do unfortunately result in injuries– some quite serious and disabling.
The State of Washington requires that motorists carry minimal amounts of insurance coverage. The problem is actually accessing the insurance proceeds after you are injured. These insurance proceeds are the very same that you pay your monthly premiums on. However, when it comes to actually paying out, the insurance company has an agenda far different than yours. Your agenda is to be made whole for your losses. The insurance company’s agenda, on the other hand, is to make money. For an insurance company to make money it must collect enough premiums to pay all of its employees and for all its big skyscrapers and for all of the claims made. That is why insurance companies never want to pay the full amount of the claim. Further, if insurance companies paid the fair and full amount of every claim, there would be no need for attorneys.
Do not take an early settlement offer–contact an attorney to ensure you get what you are entitled to.
Attorney Jon Gill, Salmon Creek Law Offices, (360) 576-5322
number of view: 24
In order to sue for medical malpractice, the plaintiff must prove four elements. These elements include duty, breach, causation and damages. Let me explain each in turn.
Duty. A physician has the duty to treat a patient at the professional standard of care of the average physician in the medical community. Medical specialists must meet or exceed the standard of care of specialists in their area of specialty.
Breach. A physician breaches his duty of care when his actions do not meet professional standards set by the medical community.
Causation. Not only must a plaintiff prove the physician breached his duty of care, the plaintiff must prove that that breach was the cause of the patient’s damages. For example, a patient is allergic to a specific medication. The patient’s physician is aware of the allergy and treats the patient with that medication in error. The patient has a heart attack and dies. Though the patient was allergic to the medication, none of the allergic side effects include heart attacks. There was no causation between the medicine and the heart attack. The patient therefore had no cause of action and could not sue the doctor for malpractice. If one of the allergic side effects was heart failure, the patient would have a cause of action for medical malpractice against the physician.
Damages. Once a plaintiff has shown that the physician has breached his duty of care, and that breach has caused the harm in question, the plaintiff must show that he has monetary damages. Sometimes, a physician has breached his duty of care causing injuries, but there are no significant damages. In the above example, a physician could administer medication he knew his patient was allergic to. The patient sneezed a few times and got watery eyes for a few hours not causing lost work or any pain. In this scenario, the patient would not be able to sue for medical malpractice because he sustained no monetary damages. Conversely, if the patient develops severe sneezing and watery eyes that persisted for several weeks causing him to miss work and experience great pain and irritation, there would be monetary damages and the patient could therefore sue his physician for medical practice. There are many potential medical malpractice lawsuits where the plaintiff cannot show that he has experienced monetary loss.
Attorney Jonathan Gill, Salmon Creek Law Offices, (360) 576-5322
number of view: 13
If you are injured by the negligence of someone else, you can be compensated for your injuries.
Your injuries could have been caused by a car accident, motorcycle accident bike crash or truck wreck; all accidents cases are analyzed the same way. Can we prove there was negligence? To show that someone was negligent, you must prove the four elements of negligence. The elements of negligence are duty, breach causation and damages. To properly analyze and explain your case, an attorney should discuss with you each of these elements and whether or not each can be specifically established in your case. If these four elements cannot be proven, you do not have a case. These four elements must be proven in wrongful death actions as well as in medical malpractice actions.
What folks are always most interested in is the fourth element — damages. The economic damages incurred are what insurance companies base their settlement offers on. There are often large discrepancies in what the insurance companies believe are your damages and what your actual damages are. The insurance company has no incentive to settle your case for its actual value when it can offer less. You are the one suffering the economic loss and are often in the need of the funds. Without the threat of a lawsuit, the insurance company will simply offer minimal amounts and wait, they have nothing to lose. The longer they keep the money in their accounts, the more interest they can earn. If insurance companies always offered fair settlements, there would be no need for attorneys and there would be no need for laws that protect people like you from insurance companies.
The attorney you choose should offer a free consultation and collect no fees until you win. I wish you a speedy recovery from any injuries you may have received.
Attorney Jonathan Gill, Salmon Creek Law Offices, (360) 576-5322
number of view: 21
Wrongful Death and Insurance Companies
The unexpected death of a spouse or child is a devastating experience, especially when the death is caused by the negligent behavior of someone else. Not only must one make the normal arrangements following the loved ones death, one must deal with the insurance adjustor of the wrong-doer. Often the adjustor will make you feel like he is on your side and wants to get the money you deserve to you quickly. Beware. Despite what the television commercials portray, insurance companies are in the business of making money. What that means to you is that the insurance company you are dealing with (including your own insurance company) is acting solely in their best interest. After all, if insurance companies behaved fairly, there would be no need for attorneys and no need for laws protecting consumers from insurance companies. There are many factors to consider in evaluating a wrongful death claim; have someone on your side assist you in analyzing the factors not the insurance company.
Attorney Jonathan Gill, Salmon Creek Law Offices, (360) 576-5322
number of view: 17
Estate disputes arise for a variety of reasons, however the majority of disputes I see stem from the personal representative or executor acting inappropriately.
First and foremost, an executor must follow the provisions outlined in the will. If an executor does not follow the will to the letter, the executor is not upholding his or her duties. Further, an executor has fiduciary duties or responsibilities not outlined in the will to which the executor must conform under the law. Basically, an executor must do everything in the best interest of the estate and the people entitled to benefit from the estate. If the executor does anything in the executor’s best interest over the estate’s best interest, the individuals entitled to benefit from the estate can have the executor removed and collect any damages from the removed executor personally, including attorney fees.
The executor is only really overseen by those entitled to benefit from the estate — there are no “estate police.” If you, as an heir or devisee, believe the executor has acted inappropriately and do nothing, the executor may never be held responsible for his or her wrongdoing. Furthermore, any monies the executor misappropriates unltimately come out of your share.
Attorney Trent Kunz, Salmon Creek Law Offices, (360) 576-5322.
number of view: 38
Most probate disputes arise from the executor not fulfilling his or her fiduciary duties.
There are numerous fiduciary duties that an exeutor or personal representative must comply with. A Washington case that illustrates the duties of a personal representative is the Estate of Drinkwater, 22 Wn. App. 26 (1978). The responsibilities individually discussed in several cases as summarized in Drinkwater are as follows (note that the term trustee applies equally to a personal representative or a Guardian): 1) Trustees and guardians must conform to stringent standards of responsibility; 2) Trustees must administer the trust solely in the interest of such beneficiary with undivided loyalty to the trust; 3) Trustees are not allowed to make a profit or derive any benefit or advantage out of the trust; 4) Trustees are bound to the universal rule that a trustee must do that which will best serve the interests of the trust beneficiaries (his good faith is not enough); 5) Trustees cannot set up a claim against the trust estate; 6) Trustees cannot set up a title to the trust property in himself. In summary, a personal representative may not do anything that is not entirely in the best interest of the devisees or heirs of the estate and may not personally benefit from the estate at the expense of the devisees or heirs.
Who ensures the personal representative is acting appropriately? I often tell my clients that there are no “estate police” meaning the only people overseeing the actions of the personal representative are the heirs of the estate. If the heirs of the estate do not closely monitor the actions of the personal representative, the personal representative could do something that is not appropriate without the heirs ever finding out. There are specific provisions in Washington law that allow the heirs to request notice when the personal representative takes specific actions like distributing money, paying themselves as the personal representative or paying attorney fees, among other things. It is a good idea for heirs in every estate to request this notice. Heirs may also request an accounting from the personal representative. Washington probate law only requires a brief summary of attorney fees, personal representative fees, appraiser fees and accountant fees to close a non-court supervised estate. The heirs should also request a full accounting of all of the financial transactions undertaken by the personal representative. There is no other way to ensure the personal representative has upheld his or her fiduciary duties.
If the personal representative has not upheld his or her fiduciary duties, the heirs of the estate can have the personal representative removed. If it is in the best interest of the estate to have the personal representative removed, the court will remove the personal representative. A later article will discuss how to remove the personal representative and what specific things the court considers in removal.
In summary, as an heir of an estate, it is your responsibility to ensure that the personal representative upholds his or her fiduciary duties — no one else will. If you discover that a personal representative has not upheld his or her fiduciary duties, you may dispute the estate and have the personal representative removed if it is appropriate to do so.
Attorney Trent Kunz, Salmon Creek Law Offices (360) 576-5322
number of view: 19
Practice Areas | Jon Gill May 20, 2009 | 
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