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FAQ

Frequently Asked Questions

  • Q:What is the difference between a Kentucky personal injury claim and a Kentucky personal injury lawsuit?

    A:A personal injury claim arises in Kentucky when someone is injured as a result of another person's negligence, carelessness or recklessness. The injury can also be caused by an entity like a corporation or a business. A claim can then be pursued against the responsible party and/or the responsible party's insurance carrier. If the Kentucky personal injury claim is "settled" or resolved by agreement, the personal injury claim is completed when the responsible person or company pays an agreed upon amount of money and when the injured party signs a release. If the injured person and the negligent, reckless or otherwise responsible party cannot agree, then often a lawsuit is filed. A Kentucky personal injury lawsuit is filed to seek compensation for the damages that were suffered as a result of the other person or company's negligence or recklessness. In Kentucky there are also specific statutes of limitations and/or other filing/timing requirements. These deadlines mandate that a lawsuit be filed if a personal injury claim is not resolved within a prescribed period of time.

  • Q:What types of compensation can be awarded in Kentucky personal injury claims?

    A:Damages can include items such as past lost wages, impairment to the ability to labor and earn money in the future, medical expenses, both past and future, and pain and suffering. Pain and suffering can likewise be broken down into pain and suffering that has happened in the past as a result of the responsible person's negligence and that pain and suffering that is anticipated to occur in the future. Pain and suffering can further be broken down into emotional pain and suffering (or mental pain and suffering) and physical pain and suffering. In certain cases, punitive damages can be awarded if the responsible person or entity's conduct was intentional, malicious or grossly negligent.

  • Q:What type of lawyers handle Kentucky personal injury cases?

    A:Lawyers in Kentucky do not hold themselves out as specializing in certain areas. However, many Kentucky attorneys narrow the focus of their practice. For example, some Kentucky lawyers handle both civil and criminal cases. Other Kentucky lawyers only handle civil or criminal cases. Some Kentucky lawyers that handle only civil cases will likewise limit their practice by not handling corporate cases, real estate matters, estate planning, divorce work, etc. Many Kentucky lawyers handle primarily personal injury cases.

  • Q:How do I select a lawyer to handle my personal injury case in Kentucky?

    A:Most Kentucky lawyers that handle personal injury cases will offer a free initial consultation. This consultation may be over the phone, by exchange of emails or in person. In any event, a Kentucky attorney handling personal injury cases will ask questions and give you an opportunity to ask questions. At that meeting, you can decide if you want to ask the attorney to take your case and consider hiring him or her. You can also decide that you want a second legal opinion. It is often advisable to talk with multiple lawyers before you select one.

  • Q:What is a contingent fee?

    A:Many Kentucky attorneys that handle personal injury claims take injury cases on a contingent fee basis. This means that the attorney will receive a fee only if there is a successful resolution of the case. A successful resolution of a personal injury case in Kentucky would be a settlement or a jury verdict. A contingent fee is a percentage of the recovery (settlement or verdict). Most contingent fee agreements explain that the client has no responsibility for attorneys' fees in the event of an unsuccessful outcome

  • Q:How much is my Kentucky personal injury case worth?

    A:The value of a case depends on many items including the nature and extent of injury, the amount of medical bills, the amount of lost wages, the extend to which the injured person has suffered a permanent injury, the amount of future care that is necessary, etc. Additionally, the value of a case for settlement purposes depends upon an agreement being reached between the responsible party or his or her insurance carrier and the injured person. If both agree to settle, that sets the value of the case. If an agreement cannot be reached and the case has to be litigated and tried before a jury, the jury sets the value of a case. A Kentucky lawyer handling personal injury cases can assist you in assessing the value of your case based upon the factors listed above and with the assistance of past cases that have settled and past cases that have received a jury verdict.

  • Q:What is a mass tort?

    A:A tort is the legal term used to describe a civil wrong committed by one person that causes harm to another person. A mass tort is a single tort that results in the harm of many people, usually applying to a single harmful product that injures a large number of victims. Typically, these cases arise when multiple plaintiffs sue a common defendant and the court decides to file the case as a mass tort action. Mass tort actions are usually assigned to a judge quickly because of the number of victims. The judge may also ask that the information be published, usually via social media and news sources, so that other potential victims can be notified. A mass tort most commonly addresses consumer products and pharmaceuticals.

  • Q:What is medical malpractice?

    A:Medical malpractice is a broad term generally used to describe medical treatment that fails to meet the required standard of care resulting in harm to a patient. Medical malpractice can also be a failure to treat a patient when such failure results in harm. In a Kentucky medical malpractice case, it is the failure to meet the required standard of care that defines negligence. Kentucky medical malpractice cases are pursued when that negligence causes significant injury or damages. It is likely that all three of these factors (negligence, causation, damages) must occur before a Kentucky attorney that pursues medical malpractice cases will consider taking your case.

  • Q:Does a bad outcome mean that medical malpractice has occurred?

    A:No. Unfortunately, not every medical procedure returns perfect results. There are many negative results and complications that do not mean malpractice has occurred.

  • Q:Have I waived my rights because I signed a consent form?

    A:Signing a consent form does not give a health care provider a license to commit malpractice. Typical informed consent forms are meant to make sure that you have had an opportunity to ask questions, discuss options and understand the potential for adverse reactions, negative complications, etc. Informed consent forms explain the risks associated with a given treatment or procedure but the duty to meet the required standard of care is a duty that a physician or other medical provider cannot have signed away by the patient.

  • Q:Who Can Commit Medical Malpractice?

    A:Doctors, hospitals, nurses or any medical provider can commit medical malpractice in Kentucky.

  • Q:What Are Some Examples of Kentucky Medical Malpractice Cases?

    A:Medical malpractice cases in Kentucky include birth trauma cases such as the failure to timely deliver a baby during fetal distress, birth injuries such as cerebral palsy, erb's palsy or shoulder distotia, the failure to timely diagnose cancer, failure to timely diagnose heart attack, failure to timely diagnose stroke, gastric bypass malpractice, laboratory errors, medication errors, missed diagnosis, prescription drug errors, failure to recognize pulmonary embolism, failure to recognize surgical complications, surgical mistakes, radiology errors, retained foreign objects (such as retained sponges), failure to diagnose aneurisms and anesthesia errors, to name a few.

  • Q:What is Informed Consent?

    A:Prior to a patient undergoing surgery, certain medical tests, medical treatment or medical procedures in Kentucky, the doctor, nurse, hospital or other medical facility must provide the patient with clear information about the surgery, test, treatment or procedure, the risks associated with the surgery, test, treatment or procedure and alternative treatment options available. This practice is called "informed consent". Informed consent is based upon the patient's right to make educated choices regarding their health and well-being. The doctor, nurse, hospital or other medical provider is to explain the surgery, test, treatment or procedure as well as the risks involved. The patient is to be given an opportunity to ask questions and to have their medical questions answered. Nearly every state has a medical consent law that requires doctors to inform patients of medical treatment, the likely outcome, the risks and alternative treatments or medical options. The majority of doctors, nurses and other medical providers first discuss the treatment plan with their patients, document the discussion in the patients chart or medical records and then require that their patients read and sign a written consent form. A medical informed consent form typically includes: The name of the doctor performing the surgery, test, treatment or procedure An explanation and description of the surgery, test, medical treatment or procedure The purpose of the surgery, test, medical treatment or procedure The risks of performing/not performing the surgery, test, medical treatment or procedure (or at least a statement confirming that risks have been discussed and are understood by the patient) The medical options (or at least a statement that the options have been discussed and are understood by the patient) Confirmation that the patient has read and has understood the contents of the consent form Signatures of the patient, the doctor, the nurse or other medical provider that reviewed the consent form with the patient and a witness A medical informed consent form often also includes: The success rate of the proposed surgery, test, treatment or procedure The projected recovery time Costs and insurance coverage for the surgery, test, treatment or procedure The nature of medicine makes it such that not all risks of every surgery, test, treatment or procedure can reasonably be disclosed. However, certain known complications and risks must be disclosed. Common examples include the risk of infection, an adverse reaction to a dye or anesthesia or medication that is to be used, etc. While disclosure of risks can be somewhat subjective, generally the most common risks and the most serious/dangerous risks are to be presented by the doctor to the patient. There are exceptions to full disclosure. Doctors are not required to disclose medical risks when there is an emergency situation and time is critical. In these cases, the doctor should make the decision that is in the patient's best interest. Also, in cases where the patient is deemed "incompetent" to make a reasoned decision, the doctor should obtain informed consent from a caretaker. If a caretaker is not available, then again, the doctor should make the decision that is in the best interest of the patient. When lack of informed consent occurs and a patient sustains injury or harm as the result of the surgery, test, medical treatment or procedure, then the doctor, nurse, facility or medical provider may be found negligent. Lack of informed consent can occur when: A doctor or other medical provider performs surgery , a test, treatment or a medical procedure without the patient's consent A doctor or other medical provider performs a medical procedure other than that which was consented to by the patient A doctor or other medical provider performs additional procedure(s) that was/were medically unnecessary A different doctor/medical professional performs the surgery, test, treatment or other medical procedure Consent was discussed and/or signed after the patient was sedated or was otherwise impaired to understand what (s)he was reading and signing There must be a link between the lack of informed consent and an injury to the patient to justify a medical malpractice case.

  • Q:What Must be Proved in a Medical Malpractice Case?

    A:Every Kentucky medical malpractice lawsuit or medical malpractice case must consist of three elements. The first is Negligence, or a deviation from the required standard of care The second is an Injury The third is called Causation — simply put, the negligence must have caused the injury These three elements are like a 3-legged stool — no malpractice case can stand without all three. Negligence The question of negligence examines how a reasonable doctor or nurse would have handled a patient with the same or similar symptoms and complaints. There also may be clear cut rules that were violated. For example, if a hospital has a standing order that requires a chest X-ray for every emergency room patient complaining of shortness of breath, and a chest X-ray is not performed, it can be argued that the negligence was the failure to follow an order. The standard of care may also be clear cut based upon the current state of medicine in a particular specialty. For example, if a difficult vaginal delivery may be assisted by using forceps or a vacuum extractor (but not both) and an obstetrician uses both and injury results, the allegation of negligence can be that the doctor failed to meet that standard. Examples are too numerous to list here, but the basic point is that for a Kentucky medical malpractice case to succeed, there must have been a deviation from the required standard of care, or, negligence. Injury Injury is a simple concept. However, in that medical malpractice lawsuits are vigorously defended in Kentucky, the injury must be significant to justify the risk (both time and money) that will be invested to pursue the case. Wrongful death cases arising from an allegation of negligence are an example of significant injuries. Brain injuries, birth injuries, failure to timely diagnose cancer, etc; often meet the criteria that many Kentucky medical malpractice attorneys establish to justify moving forward with a case. An example of a case that may not meet a certain lawyer's criteria would be a fall in a hospital when a nurse was not tending to a patient in some way that allowed the fall. If the injury is a sprained ankle or a bruised shoulder, those injuries or damages may not justify the time and money necessary to pursue a case alleging negligence against the nurse and/or the hospital. Many potential cases appear to have sufficient negligence, but the damages are minimal. In those cases, a particular medical malpractice lawyer may "pass" on the case. This does not mean the injured patient fails to have a valid claim. On the contrary, another lawyer may evaluate the claim and accept the case because he or she has a different set of criteria when it comes to damages or injury. Causation Causation is often a battleground in Kentucky medical malpractice cases. Patients tend to be ill when they are seeking medical attention. Sometimes it is difficult to determine if a problem is the result of negligence or the patient's underlying medical problem. Patients also can have medical histories and/or medical conditions that relate to the injury and are not the result of negligence. For example, diabetes can contribute to or cause many problems. Circulation issues can be part of many complications. Reduced blood flow can cause (or can be blamed for) many less than optimal results. In many potential medical malpractice cases complex medical histories and preexisting medical conditions make success a challenge (or, sometimes, an impossibility). It is also important to understand that not every negative outcome or medical failure is the result a doctor's or nurse's negligence. Several complications are deemed, "known complications", meaning that the result is an accepted risk of the procedure. An example might include the perforation (creation of a hole) in the bladder or ureter during a hysterectomy. Certain bile leaks after gall bladder removal are deemed to be known complications of the surgery. Another example to help explain the challenge of proving causation can be seen in the case involving a failure to timely diagnose, say, lung cancer. If a chest X-ray reveals a concerning spot on the patient's lung and it is not recognized by the radiologist, yet another study (another X-ray, C-T scan, biopsy, etc) finds the cancer within a very short time, it is difficult to prove that the delay is what caused the damages rather than the cancer itself. Expert witnesses and treating doctors are used to assist the patient and the medical malpractice attorney in proving these three elements. Doctors and nurses educate jurors (and medical malpractice defense attorneys and medical malpractice insurance companies) about the standard of care and what a reasonable doctor or nurse when faced with similar circumstances would have done. Once a deviation from this required standard of care is established—negligence has been established. Expert witnesses and treating doctors also help prove causation. Doctors can help jurors, attorneys and insurance adjusters understand the results of the defendant doctor's failures or the doctor's delay, etc. Damages, or the injuries, are proven by a combination of doctors, the patient and the patient's loved ones. Doctors help by explaining the treatment, recovery and prognosis (medical future). Doctors can also comment on pain and suffering and restrictions. The patient and loved ones tend to put a personal touch on the damages/injuries. For example, if a doctor's negligence caused an injury that precluded the patient from ever gardening again (or ever speaking again or walking) it is important for jurors to understand the impact the negligence had on the lives of the patient and his/her loved ones from both doctors and the patient and loved ones.

  • Q:Do I have a medical malpractice claim?

    A:If you’ve been wrongfully injured by a medical professional, you may have the means to seek compensation. Whether the fault lies with the doctor, nurse, or the facilities themselves, medical errors do occur and can result in serious emotional and physical harm. Read on to determine whether or not you have a claim. Requirements for a Claim In order to prove that medical malpractice occurred, you must be able to show the following: A doctor-patient relationship existed: Medical records can easily prove if you were seen and treated by a specific doctor. The doctor-patient relationship may be called into question if the doctor was a consulting physician who did not treat you directly. Proof of the doctor’s negligence: You must be able to prove that your doctor made a breach in what other qualified specialists would classify as the medical standard of care. The doctor must have made an incompetent decision, or been unable to provide “reasonably skillful and careful” care. This means doctors needn’t be the best, but they must be competent. Most states require a medical expert witness to testify to the correct standard of care for the medical situation in question. The doctor’s negligence caused the injury: The injury in question must have been directly caused by the doctor’s treatment, or lack thereof. The injuries must not have been caused by underlying medical issues or preexisting conditions, but must be a result of doctor negligence. The injury led to specific damages: The harm caused by the doctor’s actions must be accounted for. Even if the doctor clearly made a mistake, they must have caused the patient physical or mental harm in order to warrant legal action. Damages can refer to physical pain, mental harm, or financial loss.

  • Q:What is a Kentucky Wrongful Death Case?

    A:When a person loses their life as a result of another's negligence, carelessness or recklessness, his or her estate or family may be able to pursue a wrongful death claim. Kentucky lawyers that handle wrongful death claims will meet with you to understand the allegations and circumstances surrounding the death and be able to determine whether or not a valid wrongful death claim exists.

  • Q:What Types of Damages Can Be Sought in a Wrongful Death Claim?

    A:In a Kentucky wrongful death case, damages may include pain and suffering, medical expenses, loss of income and loss of future earnings. Additionally, in certain circumstances, Kentucky wrongful death claims may seek compensation for loved ones such as a spouse's loss of consortium or a minor child's loss of love and affection.

  • Q:Which Nursing Home Injuries Result in Claims?

    A:A. Injuries or death that occur in Kentucky nursing homes and which result from negligence, mistake, carelessness, neglect or abuse are some of the types of injuries that form the basis of nursing home injury or nursing home wrongful death cases in Kentucky. There are many laws, regulations, policies and procedures that are put in place to protect nursing home residents. If you suspect that a loved one has been the victim of nursing home neglect, abuse or malpractice while a resident, several things can be done. First, it's unfortunate, but occasionally the police need to be called. There are also governmental entities such as the Attorney General's Office and the Adult Protective Services that can come in and investigate claims. Also, a Kentucky lawyer that handles nursing home injury, nursing home neglect and nursing home abuse cases may be consulted.

  • Q:What are some types of Kentucky nursing home injury cases?

    A:Many Kentucky nursing home injury cases are based upon allegations of malnutrition or dehydration. Additionally, bed sores (also called pressure sores or decubitus ulcers) form the basis of allegations of nursing home negligence. Prescription drug errors also can result in injuries. Errors can include dispensing the wrong medication to the wrong resident or failing to give a patient his or her medicine. Sometimes, when infections occur, or when infections are improperly treated or not timely recognized, it is appropriate to investigate concerns about nursing home negligence or nursing home neglect. Fractures, dislocations or other injuries also form the basis of Kentucky nursing home injury claims. If you have concerns that a loved one was the victim of nursing home neglect, nursing home abuse or suffered an injury in a Kentucky nursing home, you should consider contacting authorities, like the police, Attorney General's Office and/or Adult Protective Services and you should also consider consulting a Kentucky attorney that handles nursing home injury cases.

  • Q:Can I Still Make a Claim if My Loved One Passed Away?

    A:Yes, in Kentucky you can pursue a claim and/or file a lawsuit on behalf of a deceased loved one. If it can be proved that your loved one was abused or neglected, you have the opportunity to hold accountable those that were responsible for your loved one's death and to seek compensation and move toward making positive changes to help protect the next resident.

  • Q:How can I tell if my loved one has been neglected or abused?

    A:Unfortunately, often nursing home residents that are neglected or abused are incapable of expressing the pain or reporting the neglect on their own. It is important to visit your loved one often and look for signs of abuse. These signs and symptoms might include any of the following: Sudden mood swings Anxiety Dehydration Depression Bed sores Cuts and bruises (or more significant injuries) Heavy sedation Anxiety Significant weight gain or weight loss

  • Q:What Should I Do If I'm in a Car Accident in Kentucky?

    A:If you are injured in a Kentucky car accident, the most important thing is to seek medical treatment. It may also be important to contact the police to request medical attention and to conduct an investigation. When the police arrive, ask them to prepare a Kentucky Motor Vehicle Traffic Collision Report (Accident Report). Make sure you inform them of all injuries and complaints you are feeling. Make sure that you tell the investigating officer your version of the story. Seek out all witnesses and get their names and phone numbers. From the other driver, get a name, address, phone number, make, model and color of their car, and all of their auto insurance coverage information. You may also want to contact a Kentucky attorney that handles personal injury claims. Specifically, consider contacting a Kentucky attorney that handles car accident injury cases.

  • Q:What types of compensation or damages are sought in a Kentucky car accident case?

    A:When you're involved in a car accident in Kentucky, there are many types of claims for damages. Property damage means the damage to your motor vehicle or any other property involved in the accident. There are also claims for medical expenses and lost wages. Medical expense and lost wages anticipated to be incurred in the future are also recoverable in Kentucky. Pain and suffering damages may also be sought.

  • Q:How soon after an accident in Kentucky should I contact an attorney?

    A:It is important that an investigation be done quickly. Memories fade. Evidence disappears. Witnesses become difficult or impossible to locate. A Kentucky attorney that handles personal injury claims can advise you on how to preserve evidence and can conduct an investigation, locate witnesses and advise you from the very beginning.

  • Q:Will I have to go to trial over my Kentucky auto accident case?

    A:Most injury claims arising out of Kentucky car accidents are settled with the responsible party's insurance carrier. Most of these settlements occur before a lawsuit is even filed. However, if a reasonable settlement is not offered, a lawsuit may be filed. Once a lawsuit is filed, the case may settle prior to trial or the case may actually need to be tried in court.

  • Q:How long does it take for a Kentucky personal injury claim to resolve?

    A:Personal injury claims may be resolved in months or even weeks. However, for complex cases or cases with questions of liability or long recoveries from major injuries may even take years. Certainly, an injured person should consider talking with an attorney that handles car accident injury claims to get an idea as to how long his or her particular case will take to resolve.

  • Q:I don't understand Kentucky No-Fault law. Can you give me a basic explanation?

    A:Kentucky No-Fault law establishes certain types of insurance benefits that are available without regard to fault or liability. For example, in a Kentucky car accident case, the insurance company for the vehicle in which the injured person is riding is typically responsible to pay medical expenses and lost wage benefits up to a certain amount. Often an injured party that did not cause the accident is uncomfortable with making a claim against his or her insurance policy. A claim against a no-fault policy should not negatively impact ones insurance premiums, rates, etc.

  • Q:What is a product liability case?

    A:A Product Liability case is when an injured consumer looks to hold a manufacturer or supplier responsible for a product defect or for a failure to warn.

  • Q:What is a defective product?

    A:A defective product is one that causes injury or damage to the user. There are three types of defective products: Design Defects – There is a flaw in the development or design of the product (prior to manufacturing) that makes it unreasonably dangerous to consumers Manufacturing Defects – There is a flaw during the production of the product that makes a product unreasonably dangerous to consumers. This is a defect that in the way a product is built or made (as opposed to how it was designed) Failure to Warn – Seller/Manufacturer does not give directions for safe use of the product or the product/packaging does not warn of potential harm if product is not used correctly or the seller/manufacturer does not warn of unavoidable dangers of using product.

  • Q:What do we need to prove in a product liability case?

    A:There are three types of claims in a product liability case. The case can involve any one, two or all three of these types of claims. Strict Liability – A seller or manufacturer is responsible for any product that causes injury/damage to the consumer or the consumer’s property. The injured consumer does not have to prove that the seller/manufacturer was negligent. Negligence – When the seller/manufacturer does not exercise a standard of reasonable care in anticipating harm arising from the design, manufacturing or instructions and warnings of a product. The manufacturer needs to consider all reasonably forseeable uses of the product. Breach of Warranty – The product did not work properly or perform as the manufacturer/seller marketed.

  • Q:What is causation in product liability?

    A:The plaintiff (consumer) needs to show that the product was defective at the time of purchase or delivery and that the defective product was a substantial factor in causing the injury or damage.

  • Q:What are damages in a product liability case?

    A:Damages will vary substantially based on the losses/injuries suffered. There are essentially four types of damages to consider: Compensatory Damages – The expenses associated with medical bills/treatment, loss of income, property damages associated with the defective product. Compensatory damages are also called "economic damages." Pain and Suffering – These types of damages compensate for physical pain and mental anguish caused by a defective product. Often damages are considered not only for the time period from the injury thru the time the case is being valued, but also into the future ("future pain and suffering"). These damages are more subjective and may be classified as "noneconomic damages." Loss of Consortium – Damages that are given as compensation for the losses a spouse suffers when their partner is injured by a defective product. Loss of consortium (or loss of love and affection) can also be claimed for the death of a parent or a minor child in certain circumstances Punitive Damages - These types of damages are awarded not to compensate the consumer, but as a deterrent or punishment for reckless or grossly negligent behavior on the part of the manufacturer or seller of the defective product.

  • Q:What are the different types of product liability cases?

    A:Nearly any manufactured goods could be included, but many product liability cases involve: Drugs/Medications Vehicles and Vehicle parts (tires, brakes, airbags, etc) Medical devices Defective baby products or children’s toys Industrial equipment Appliances Power tools

  • Q:What should I do if I think I have a product liability case?

    A:A. If you believe you have suffered an injury or loss as the result of a defective product, you should contact an attorney. One such attorney is Brett H. Oppenheimer. Brett’s office phone number is (502) 242-8877. You can also email brett at: brett@bluegrassinjury.com

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