Personal Injury Primer

I’m David Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.

Today’s topic is about proving “non-economic” damages, such as an injury’s impact on a person’s quality of life.

Often people who suffer an injury as a result of another person’s negligence will find that they cannot engage in certain activities (essential tasks, hobbies, social activities, etc.) as did before the injury incident.

These losses are recoverable, but there must be proof to causally relate the loss to the injury incident.

In other words, just saying that you can no longer go grocery shopping, walk the dog, play golf, ski, or ride a bike, will not be enough to prevail in court.

In addition to the plaintiff’s testimony, a doctor will be needed to explain how the injury impacts the ability to do the things the plaintiff says they can no longer do.

Such testimony may come from a medical doctor. It also may come from a psychiatrist or psychologist who may testify about PTSD, anxiety, panic attacks, etc., and the limiting and debilitating impact of these conditions.

Friends and family may also testify to how the injured party was before the incident, and how the person is after the injury incident.

Pre and post-injury photos and videos may also be helpful in establishing the lasting impact of an injury.

I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – While there, make sure you request a copy of our book “Fighting for Truth.”

I’m David Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.

Today’s question comes from a caller who said she lost control of her car on ice and went into a ditch. During the wreck, her driver-side airbag deployed and shot off pieces of metal into the occupant compartment. It was like shrapnel from an improvised explosive device she said. She suffered fairly serious injuries.

She wanted to know her legal options.

There have been quite a few cases over the past several years involving defective Takata airbags.

The car she was driving had a Takata programmable smokeless driver’s inflator.

It is a dual-stage inflator that utilizes a propellant that as it ages is susceptible to moisture and thermal cycling, resulting in a rapid and defective inflation of the airbag.

It is the type of airbag that has been shown to produce excessive internal pressure. Excessive pressure can cause metal fragments to pass through the airbag and strike an occupant.

In the caller’s case she may qualify for compensation through the Takata Individual Restitution Fund established under a Restitution Order entered against the Takata Corporation in connection with Takata’s Chapter 11 Bankruptcy Plan of Reorganization.

The caller may also have a potential claim against the vehicle manufacturer based upon strict product liability, failure to warn, and negligent recall.

I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”

I’m David Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.

Today’s question comes from a caller concerned about being able to sue for injuries sustained in a car crash. She said she was not wearing a seatbelt at the time of the crash, and the police cited her for not wearing her seatbelt.

The answer is generally yes, the caller could sue but may be found to be partially at fault for the injuries suffered, which could reduce how much money she is able to recover.

In the caller’s situation, the defense will likely argue that the failure to wear a seat belt made her injuries far worse than they would have been if she had buckled up.

The defense will argue the caller had the duty to wear a seat belt and acted unreasonably in failing to wear her seat belt.

Of course, the defense team will have the burden to prove that the caller’s failure to wear a seat belt caused or aggravated her injuries.

I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – While there, make sure you request a copy of our book “Fighting for Truth.”

I’m David Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.

Today’s question comes from a caller concerned about the fact that her elderly father was given a chemotherapy drug without his consent, or the consent of the family.

Under the law, a patient must consent to the treatment they receive. A patient’s decision to undergo a particular treatment must be an informed choice.

Healthcare providers must tell a patient the important facts about possible treatments. Before making a choice, a patient has a right to know the nature of a proposed treatment, other available treatments, and the risks involved in the treatment.

To recover damages against a medical provider when the issue is a failure to obtain informed consent, a plaintiff must use expert testimony to prove that a medical provider, using reasonable care and skill under the circumstances, would have informed the patient of the nature of a proposed treatment, other available treatments, and the risks to the patient involved in the treatment.

Keep in mind, that a patient’s consent may be expressed or implied.

“Express consent” means actual, direct, or explicit permission, whether oral or written.

“Implied consent” means permission that is not expressly given, but which the medical provider would reasonably understand from the patient’s conduct and surrounding circumstances.

The caller mentioned that her father was elderly. When the patient is unable to consent to treatment because the patient is a child, is unconscious or is not mentally competent, a medical provider must obtain consent from someone authorized to give consent for the patient.

I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – While there, make sure you request a copy of our book “Fighting for Truth.”

I’m David Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.

Today’s question comes from a caller concerned that her complications from a recent medical procedure were due to her doctor failing to refer her to a specialist.

She wanted to know her rights.

What lay people think of when using the term medical specialist is not necessarily the same as the legal definition of the term.

Under the law, a medical specialist is one who focuses their practice on diagnosing and treating a particular medical condition, consistent with the state of scientific knowledge at the time of treatment for that particular condition.

Where physicians hold themselves out as having special knowledge and skill in the field of medicine, they are bound to bring to the discharge of their duty to a patient, not merely the average degree of skill possessed by general practitioners, but that special degree of skill and knowledge possessed by physicians who are specialists in the treatment of such conditions.

In the caller’s case, she was concerned that all her medical issues flowed from a failure of her general practitioner to refer her to a specialist.

Under the law, a health care provider who is not qualified to treat a patient because he does not practice in a specialty, or lacks the necessary training or facilities, must advise the patient to consult a specialist.

While the caller may have a difficult time proving that her general practitioner was not qualified to treat her condition, if she can prove a lack of qualification, then yes, it may be that her doctor breached a duty to refer her to a specialist.

Nevertheless, to prevail in such as situation, the caller still would have to prove that her outcome would have been different had the referral been made.

I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”

I’m David Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.

Today’s question comes from a caller concerned about her child who was hurt in a school bus crash.

Thankfully, the injuries were not too serious.

But, the bus rolled on its side. Even at low speed, there were moving objects inside the bus which could have caused serious injury had they struck a child. Though no one was thrown from the bus, if they had been, the injuries could have been quite serious or fatal.

When you consider dangers associated with school buses, you have to include dangers beyond those associated with a collision.

For example, an occupant can get caught in the door mechanism when either entering or exiting the bus. A passenger can fall down the stairs trying to get off the bus or trying to step up onto the bus.

Poor driver training and poor driver supervision have been linked to many bus injuries. A school district can fail to do a proper background check on a bus driver, or negligently do a background check, both of which circumstances can increase the likelihood of injury.

Poor bus maintenance by a school district can also lead to injury. Mechanical issues, like worn or defective brakes, can lead to a mechanical failure, which in turn can lead to injury.

One thing to keep in mind, when investigating a public school bus-related injury is that the school will be considered a branch of the government, and will be subject to governmental immunity. This means that special notice of intent to sue must be given within a short few months following an injury incident.

I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”

I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.

Today’s question comes from a caller concerned about her child who was hit by a car while walking to the school bus.

Motorists always have a duty to look out for pedestrians.

Child pedestrians often, despite our best efforts to protect them, are placed in danger as they walk to and from school, or to and from a school bus stop.

Any pedestrian who is struck by a moving vehicle will likely suffer serious injury, but the risk of serious injury is even greater for a small child.

The reason a child is likely to suffer greater injury when struck by a car includes the fact that a pedestrian child hit by a motor vehicle will likely be shorter than an adult. Thus, the chance of a blow to the head for smaller, younger, and shorter children is increased.

One of the reasons school zones have a very low speed limit, in most cases a 20 mph limit, is because a child is not as cognitively developed as an adult. The child isn’t able to recognize potential traffic hazards like an adult would.

Consequently, a motorist has a duty to be more careful when driving in an area frequented by children.

Distracted driving (including texting, or phone use) always is dangerous. Driving under the influence, again, is always dangerous. However, the consequences of such reckless behavior are magnified when a vehicle is operated in a school zone or residential area.

I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”

I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.

Today’s question comes from a caller who said her 12-year-old daughter was seriously hurt while operating a go-kart at an amusement park. She wanted to discuss her legal options.

Upon questioning, the mother revealed that her daughter was operating a go-kart which was struck by another go-kart being operated by a 20-year-old man. The man said that the brakes did not work and that he hit a pothole on the track when he was going too fast, and it caused him to lose control. And, when the brakes failed to work he struck the go-kart the woman’s daughter was operating. He apologized for the incident.

In considering the situation several things point to liability of the 20-year-old man, and other things point to the liability of the amusement park operator.

As to the 20-year-old man, he admitted going too fast for the conditions, which conditions included a track with potholes. Certainly, his conduct could be considered unreasonable under the circumstances. If the man has a driver’s license and a motor vehicle with insurance coverage, the insurance policy possibly would apply to cover his operation of the go-cart. The policy language would have to be checked.

As to the amusement park, it is concerning that they supplied a go-kart without functioning brakes.

It is also concerning that the track the amusement park supplied to those renting go-karts was itself defective and had potholes.

Also of concern is that the man was operating too fast for track conditions. The park should be enforcing speed limits on the track or adjusting the go-karts so as to limit the maximum speed for the go-karts.

While much additional investigation will be required, the caller and her daughter certainly appear to have several options available to them to recover damages suffered by the daughter in this unfortunate situation.

I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”

I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.

Have you noticed that the cost of repairing modern cars is getting higher and higher?

While we rarely take on a case involving only property damage, where there is no injury claim resulting from a crash, we have noticed over the years that repair costs are skyrocketing.

Also, we have noted that a big factor in high vehicle repair costs is associated with the computer components of a vehicle.

There is also a trend in people keeping older vehicles longer for a variety of reasons.

Older vehicles without computers cost less to repair, license plate fees are often lower, and insurance rates are often lower.

As we mentioned in an earlier episode, Indiana is known to be a farm state.

Farmers have also found that keeping and repairing older equipment can be a way to save money.

For example, when a brand-new tractor breaks down, you need a computer to fix it.

When a tractor manufactured in the 1970s and 1980s breaks down, you can repair it yourself or buy another old tractor.

New farming equipment, containing computers, often comes with digital rights management software. This makes simple repairs very expensive.

Instead of farmers being able to fix equipment on their own, they now have to pay to plug a computer into the onboard computer of the newest machinery and then pay a big diagnostic fee.

Keep in mind that older farm tractors manufactured in the late 1970s and 1980s look and run like modern tractors. They lack the computer components, however, which keeps repair costs low.

But, as we have discussed in another episode if someone is injured as a result of a defect in an older vehicle, whether it be a farm tractor or automobile, Indiana has a 10-year statute of repose.

This means, that if the manufacturer sold the product more than 10 years before a defect or failure to warn led to an injury, it may be too late to sue the manufacturer.

I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – While there, make sure you request a copy of our book “Fighting for Truth.”

I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.

Today’s question comes from a caller concerned about her daughter who was injured when the car her boyfriend was driving was hit by a train.

She wanted to know her daughter’s legal rights.

Railroad crossing crashes are often complex and require extensive investigation.

In the caller’s case, the boyfriend driver died, and the daughter who was injured as a passenger was in a coma in the ICU.

The caller said she knew of no witnesses to the crash as it happened late at night at a rural grade crossing.

The crossing did have a flasher and bells, but no gate.

The crossing had poor visibility due to its angle, steep incline, and overgrown brush. Though the crossing had an active warning device in the form of a flasher and bells, the caller said she has to cross at the same crossing every day and has noticed that sometimes the flasher does not come on at all, or comes on when a driver is so close to the tracks that you cannot see the flasher. She says she almost got hit the week before but was lucky and slammed on her brakes.

A police report that the caller obtained said the police asked neighbors near the crossing if they heard a train whistle at about the time of the crash. No neighbor recalls hearing a whistle or horn or any other sound besides the crash.

As we analyze the legal options of the daughter of the caller, it is fair to first observe that a driver traveling on a highway must exercise ordinary or reasonable care in approaching a railroad crossing to avoid injury.

It is possible that an investigation will reveal that the deceased boyfriend was at fault, in which case his auto insurance may be required to make good up to policy limits on a judgment obtained against the estate of the deceased driver. The caller did say that there were empty beer cans found in the car, so perhaps the boyfriend was drinking.

But, what is the duty of the railroad, and the railroad engineer?

An operator of a train has a duty to exercise the care an ordinarily prudent person would use, under the same or similar circumstances. The failure to exercise such care is negligence.

In the absence of legislation regulating the speed of railway trains in rural districts, a railroad company has the right, as between it and travelers on the highways, to run its trains over country crossings at any speed it may choose, subject to the common law rule of reasonable care.

Generally, speed alone is rarely negligence in the absence of a statute or ordinance limiting speed, but railroads must regulate speed with proper regard for human life.

It is also the duty of railroad companies to give signals required by statute when approaching a public crossing, and a breach of this duty constitutes negligence. So if a statute requires a horn or whistle, the train operator must give the signal required and it can be negligent if a warning signal is not given.

In the caller’s case, it also would be advisable to investigate federal law dealing with grade crossing protection. Perhaps the railroad was required to have gates. Perhaps the flashers were set to activate so as to give a motorist enough warning for a train going 45 mph but did not activate soon enough because the train was going 70 mph, as confirmed by the event recorder on the train.

Another area to investigate would be federal and state laws governing the removal of overgrown brush at a crossing. Especially brush that would block the view up and down the tracks by drivers stopped at the crossing. This may be grounds to hold the railroad negligent given the angle of the crossing and the steep incline, both of which would magnify the danger posed by failing to clear away overgrown brush.

I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – While there, make sure you request a copy of our book “Fighting for Truth.”