Please review article that highlights an overview of the topic of forensic mental health law and provide the class with an in-depth review of the article

The Law of Torts ______ “It is difficult to imagine a human activity that is not subject to the law of torts.” A tort is a civil action for damages relating to a variety of injuries. The law of torts is concerned with the allocation of losses arising out of human activities; to afford compensation for injuries sustained by one person as the result of the conduct of another. Tort Claims Motor vehicle accident cases comprise the single largest number of tort cases. In the Arizona Superior Court, for instance, approximately two-thirds of the tort cases filed arise out of motor vehicle accidents. The remaining tort cases filed involve claims of medical malpractice, assault, battery, conversion, false imprisonment, intentional infliction of emotional distress, defamation, invasion of privacy, misrepresentation, malicious prosecution, interference with business relations, premises liability, and product liability. Freeway Collision Results in Brain Injury In this accident case, we represented a 43-year old woman who was rear-ended while traveling on the 101 freeway in Scottsdale, Arizona. The impact propelled our client’s car into the rear of the vehicle in front of her. Our client briefly lost consciousness after the initial impact, and she was transported to a level one trauma center for care. On admittance, she complained of neck and back pain and severe headaches with mental fogginess. Our client’s neck and back pain eventually improved with physical therapy, but she continued having painful migraines. In addition, she experienced troublesome short-term memory loss and word-finding difficulties. For this, she sought treatment from a neurologist who, after examination and evaluation, diagnosed her with mild post-concussive syndrome and trauma-induced migraine headache. Despite continuing treatment, our client’s language and cognitive problems did not improve and, nearly one year after the accident, she underwent a neuropsychological evaluation. The neuropsychologist concluded, based on the test results, that she suffered residual cognitive deficits with signs of frontal lobe involvement secondary to her motor vehicle accident. In other words, the accident caused a brain injury. The neuropsychologist recommended further treatment with a speech therapist to help with her language and communication deficits. Given the possibility of a permanent impairment and future medical expenses, the responsible driver’s insurance company offered to settle our client’s claim for the full policy limits of $100,000. Our client’s own insurance company paid an additional $25,000, for a total settlement of $125,000. Some of the torts mentioned in the above paragraph are also crimes, such as assault and battery. A tort is not the same thing as a crime, although the two sometimes have many features in common. A crime is an offense against the public at large, for which the state, as the representative of the people, will bring proceedings in the form of a criminal prosecution. The purpose of a criminal proceeding is to protect and vindicate the interests of the public as a whole, usually by punishing the offender. The civil action for a tort, on the other hand, is maintained by the injured person himself. Its purpose is to compensate the victim for the damages he or she has suffered, at the expense of the wrongdoer (also known as the tortfeasor). If the injured party is successful, he or she will receive a judgment for a sum of money, which may be enforced against the tortfeasor. Liability Insurance In many cases, insurance is available to pay a money judgment entered against a continued on page 2 Motor vehicle accidents comprise the single largest number of tort cases. More Case Summaries on Page 2 “Extraordinary service, exceptional results” Case Summaries tortfeasor. Auto and homeowners’ policies are the two most common types of tort insurance policies in effect today. Both cover negligent acts committed by the policyholder. Most professionals also have professional liability insurance to cover work-related negligence. This type of insurance is commonly referred to as malpractice insurance, and most doctors, lawyers and accountants carry it. Under almost all insurance policies covering torts, in addition to paying damages, the insurance company must provide a defense for its policyholder in any civil action brought against him. This means that insurance companies hire and pay for the defense attorneys in almost all tort cases. Contingency Fees In the vast majority of tort cases, the plaintiff, i.e., the person who claims injury by the wrongful act or conduct of another, is represented by an attorney on a contingent-fee basis. When the fee is contingent, the attorney receives a predetermined percentage of the amount recovered as his fee in the case. Conversely, if there is no recovery, there is no attorney’s fee. It is widely believed that the contingency fee holds the keys to the courthouse doors for this country’s poor and middle class. The Florida Supreme Court has stated, “…the poor and the least fortunate in our society enjoy access to our courts, in part, because of the existence of the contingency fee.” Regardless of whether a fee is contingent, it must be reasonable. The State Bar of Arizona requires that all contingent fee contracts be in writing, and that the fee be reasonable under the circumstances of the case. Tort Awards The median award received by injured plaintiffs in large U.S. counties is $30,500, according to a recent U.S. Department of Justice study. This includes both compensatory and punitive damages. Compensatory damages compensate the plaintiff for losses caused by the tortfeasor’s negligent or wrongful conduct, while punitive damages punish for a tortfeasor’s egregious misconduct and willful or malicious acts. Punitive damages are awarded in only 3% of tort trials won by plaintiffs. And, according to the study, the median punitive damage award for outrageous misconduct is only $38,000. In every case, the trial judge has the power to reduce the jury’s damage award if he or she believes it is excessive. The “Headline Awards” of millions of dollars are clearly the exception to the rule in tort cases. Scope of Law The law of torts covers a wide range of human activities. Indeed, its scope is so broad it is difficult to imagine a human activity that is not covered by this branch of the law. Thus, a person who sustains injury to his or her person or property as a result of somebody else’s act or conduct, whether it be negligent or intentional, likely has a claim for damages based on the law of torts. Reprinted with the author’s permission from Arizona Laws 101: A Handbook for Non-Lawyers, by Donald A. Loose (Fenestra Books 2005). Continued on Page 3 Torts (continued from page 1) Post-accident Hospital Treatment Causes Injury; Wrong Drug Administered Our client, a 68-year old man with a history of chronic back pain and coronary artery disease, was rear-ended near his home in Phoenix, Arizona. Although his car was badly damaged in the accident, our client chose to go home rather than being transported to the hospital from the scene. Later in the evening, when our client’s wife got home from work, she found him to be uncharacteristically disoriented, confused, and incoherent, and he was having problems walking. Accordingly, his wife took him to the emergency room, where a workup was done to determine the cause of his altered mental status. Case Summaries “Extraordinary service, exceptional results” The hospital determined that our client suffered a minor head injury from the motor vehicle accident, but also inexplicably diagnosed him as an opiate addict (presumably due to the presence of the drug Vicodin in his system, which he had taken for back pain). He was admitted and administered the drug naltrexone, an opiate blocker typically used to treat lethal heroin overdoses. Our client suffered an adverse reaction to the drug, and his physical and mental health deteriorated thereafter. He was hospitalized for eight days after the accident, during which he underwent surgery to implant a pacemaker. Our client’s gait abnormalities, confusion and disorientation failed to improve over time and his cardiologist referred him for a neurological evaluation. The neurologist opined he had suffered a traumatic brain injury and Welcomes referred him for neuropsychological testing, which revealed significant neurocognitive impairment with lateral deficits to the right hemisphere. We retained a psychiatrist to evaluate our client and review his medical records. The psychiatrist determined that the hospital’s administration of the drug naltrexone for opiate overdose was not validated, and that it was an adverse reaction to the drug with aggravation of his heart condition (requiring implantation of a pacemaker) that likely caused the cascading deterioration of our client’s health. Because our client’s post-accident health problems likely were caused by the treatment he received at the hospital after the accident, we successfully argued that the other driver was liable for his injuries regardless of whether they were caused by the accident itself or his resulting hospitalization. The other driver’s insurance company offered the full policy limits of $100,000 to settle the case. Rear-end Collision Causes Rotator Cuff Tear and Permanent Impairment; $525,000 Settlement In this case, we represented a 50-year old man who was rear-ended in a motor vehicle accident. At the time of the accident, our client was working for a local construction company as a service technician. By all outward appearances, the accident was relatively minor (the repair costs for our client’s work van totaled less than $3,000). Despite the apparent minor nature of the accident, however, our client experienced considerable subsequent discomfort in his right shoulder. After initial physical therapy, his symptoms worsened and an MRI was ordered. About of work restrictions for our client, including no heavy or overhead lifting. To establish our client’s wage loss, we retained an economist to perform a vocational economic evaluation. This evaluation projected the impact of our client’s physical injuries on his reduced employability potential and his loss of earning capacity. Our client had historically earned approximately $50,000 per year. Based on our client’s medical restrictions, age, educational background, work history and transferable skills, it was determined that any future employment would be limited to sedentary work such as a retail salesperson job. The evaluation showed our client’s future lost wages to be more than $400,000. Based on the permanency of our client’s injury and his considerable future lost wages, we were able to settle his claim for $525,000 (combined from both the responsible driver’s policy and the underinsured motorist policy maintained by our client’s employer). Case Summaries “Extraordinary service, exceptional results” one month after the accident, our client was diagnosed with a full thickness rotator cuff tear. Our client’s job duties as a service technician included performing follow-up repair services on manufactured homes after delivery to their placement sites. He repaired carpets, flooring, appliances, doors, windows, and roofs. Because of the shoulder injury sustained in the accident, our client was unable to perform his job duties and, therefore, he began receiving worker’s compensation benefits. After an unsuccessful course of conservative treatment, our client underwent surgery to repair his torn rotator cuff. The surgery was followed by months of physical therapy, but the pain in his shoulder persisted. Because of the persistent pain, our client underwent another MRI which revealed that the rotator cuff might not have properly healed despite the corrective surgery. Ultimately, our client’s doctor declared our client “permanent /stationary” and assigned him a 15% permanent impairment rating of his upper extremity. He also imposed a number Jennifer Arrington recently joined Loose Brown as a legal assistant. Jennifer brings with her more than 7 years of extensive legal administrative experience in the fields of commercial and complex civil litigation, bankruptcy, insurance defense, construction, and corporate law. Jennifer takes pride in her organizational knowledge and analytical skills. Kiley Gomez recently joined Loose Brown as a legal clerk. Kiley has 9 years of management and customer service experience. Kiley manages all client files and documents, and she provides assistance and support in the areas of estate planning and litigation.

The Law of Tort

Introduction

This article is a publication of Loose, Brown, and Associates, P.C. It was documented in the Spring/summer of 2012 and outlined an in-depth analysis of the law of torts and the various ways it is applied in the modern contemporary world.

Summary

In summary, this article provides an in-depth understanding of the law of tort and a wide range of human activities the law of tort covers. Under the law of torts, all industries are liable to injuries, malpractice but some are more at high risk than others. This article showcases the distinct features of tort cases and how the legal process takes place. In addition, it showcases how the contingency fee funds justice in the United States “it is widely believed that the contingency fee holds the keys to the courthouse doors for this country’s poor and middle class” (Loose, Brown & Associated, P.C, 2012).  For decades tort court cases accrue huge awards. Looking at case summaries, it is evident that the law of torts is parallel in all types of malpractices and does not favor the tortfeasor or the plaintiff.

Critique

Although the tort law is effective, it oppresses the insurance tort companies due to the company’s hefty prices to pay for the defendant s attorney.  On the contrary, proper utilization of the contingency fees collected from Torts is adequate for the adequate funding of the justice system. This article offers in-depth knowledge of why it is pertinent to secure insurance companies with tort covering to compensate. However, there is a ripe area of study to evaluate the tort court proceedings in the case of doctor malpractice

In surmise, every human activity is subject to tort law and is engineered to help people recover their losses from negligence and malpractice. Traditionally tort causes aid in financing the justice system due to the enormous compensations.

References

Loose, Brown & Associated, P.C. (2012). The Law of Torts.