St. Joseph Michigan Criminal Defense Blog

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Personal Injury Cases

Damages Allowed in Personal Injury Cases

Personal Injury Cases
If you have been injured in an accident, and another party is to blame, you may be able to obtain monetary damages from that person or business to compensate you for medical expenses, loss of income and pain and suffering as a result of the accident.

There are a variety of types of damages allowed in personal injury cases. Those damages can be divided into several categories. First, there are compensatory damages and punitive damages. There are also two types of compensatory damages: economic and non-economic.

Compensatory damages are damages that are intended to compensate a person for a loss or problem relating to a personal injury, including monetary losses, pain and suffering and physical impairment. Punitive damages are intended to punish the negligent party for its wrongdoing, and aren’t specifically related to a loss the plaintiff suffered.

For example, if a company decided to dump toxic waste into a creek instead of disposing of it safely, and as a result a woman living next to the creek developed cancer, her compensatory damages may include amounts for her medical expenses, her lost wages, and her pain and suffering. In addition to these damages, the jury may also decide to award punitive damages, which are strictly intended to punish the company for its wrongdoing. Punitive damages are somewhat rare in most cases, plaintiffs only receive compensatory damages.

Compensatory damages can be further divided into economic damages and non-economic damages. Economic damages are those damages that result in an identifiable economic loss. For example, economic damages include medical expenses, lost wages, the cost of hiring a helper or nurse, and the cost of special transportation or medical equipment that’s needed as a result of the accident.

Non-economic damages are damages for harm relating to the injury sustained that are difficult to quantify using a specific dollar amount. Instead, non-economic damages are awarded to a person who has suffered a diminished quality of life as a result of the accident. Some examples of non-economic damages include emotional distress, pain and suffering, embarrassment or humiliation, loss of enjoyment of life, loss of consortium (sexual relations) and scarring or disfigurement. Although non-economic losses can be difficult to quantify, they are an important component of a personal injury case.

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1

Who Can Testify in a Domestic Violence Case?

Domestic violence cases

You may have heard that a wife can not testify against her husband. But if the spouse doesn’t testify when one partner abuses the other, then who will? A recent Court of Appeals decision answered the question without a doubt.

The husband in the case brought a rifle to the home of his estranged wife. Another man, Michael, was there. The husband shot Michael in the arm, but luckily the wife was not injured. At the preliminary examination, the husband’s attorney claimed that the wife wanted to assert her spousal privilege not to testify against her husband. The testimony occurred anyway.

Michigan has a spousal privilege statute, created in 2000, that allows a witness to refuse to testify against his or her spouse in a criminal prosecution. But the law does not apply:

In a cause of action that grows out of a personal wrong or injury done by one to the other or that grows out of the refusal or neglect to furnish the spouse or children with suitable support.

This is a change from the previous statute, which gave the power to exclude testimony to the defendant spouse, rather than the witness. The exception for spouse-victims shifted the decision to the witness. Under the new statute, the court ruled that the witness’s power to opt out of testifying ends when the spouse is the victim. At that point, the public has a right to every man’s evidence, so the witness can be required to testify against his or her wishes.

A lot of domestic violence cases rise and fall based on the testimony of the spouse. Prosecutors have long been able to continue the case even when the spouse decides she does not want to prosecute. This new case gives the prosecutors another tool to use in overcoming a reluctant wife’s hesitancy. If you are facing domestic violence charges, call Attorney Peter J. Johnson at 269-982-1100 for a consultation.

*Please note:Every case is different, and there may be some aspect of your particular case which may result in an outcome other than is described above. This post is not intended as legal advice and may not apply to your particular case. It is always best to contact our office for a consultation if you have been or believe you may be charged with a crime.

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Wrongful death claim

Wrongful Death

Wrongful death claim

If you watch the evening news or read the local paper, you’ve probably come across the term Wrongful death. Legally speaking, wrongful death is a term used for a type of action that can be filed by the heirs and beneficiaries of a person who was killed because of the wrongful conduct of another person. Wrongful death laws are intended to provide compensation to help support the dependents of the deceased.

Conduct that can result in a wrongful death claim include negligence, such as reckless driving, or intentional crimes such as assault or murder. In most states, the standard of proof for wrongful death cases is a preponderance of the evidence meaning that the injured party has to prove to the jury that there is a greater than 50% chance that the defendant’s negligent or criminal actions were the cause of death. This differs from criminal cases where the prosecutor must show proof beyond a reasonable doubt, a much higher standard. Therefore, it’s often easier for survivors to prove a wrongful death case than it is for prosecutors to prove a criminal case. One well-known example is the O.J. Simpson case where the survivors of Ron Goldman and Nicole Simpson chose to sue for wrongful death and won after O.J Simpson was acquitted in the criminal case.

Wrongful death laws are different from state to state, and they govern who can sue for wrongful death and whether there are any limits that should be applied to damage awards. In general, a surviving spouse, children, or next of kin can recover for wrongful death. However, in some states, only minor children, not adult children, can sue for the death of a parent.

There are some exceptions to who can be sued for wrongful death. In order to promote strong family relationships, some states don’t allow a person to sue another member of his or her family for wrongful death, However, many states have dropped this rule, because it has at times prevented families from collecting insurance proceeds. It can also be hard to sue states or local governments, or the federal government for wrongful death of the rules vary among jurisdictions.

In order to sue for wrongful death, it must be shown that the defendant’s actions (or failure to act when he should have) were the immediate and foreseeable cause of the deceased’s death. In wrongful death cases, state laws govern what amount of damages can be recovered. Usually, wrongful death cases include compensatory damages, which provide an amount of restitution for lost income, medical and funeral expenses, and economic support in an amount the plaintiffs would have received if the deceased had not died. In some cases, the survivors can also recover for loss of companionship and sexual relations. Calculating the exact amount of damages requires the consideration of a number of a variables, such as the amount of time the deceased would have continued working and the deceased’s salary, and the deceased’s life expectancy, including physical and mental health.

In some wrongful death cases, punitive damages (which are intended to punish the defendant) can be awarded if the defendant’s actions were extremely reckless. The jury decides whether there should be an award of punitive damages. Any punitive damages that are recovered are generally divided among the survivors by statute.

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Mental health courts

Local Courts Authorized to Create Mental Health Courts

Mental health courts

For many defendants, repeated criminal behavior is a symptom of an underlying mental disability. Local judges and probation officers have struggled to craft elaborate probation orders that address the illness as well as the discipline and safety concerns inherent in any criminal case. But starting in 2014, judges and defendants will have another option.

At the end of 2013, the Michigan Legislature authorized the formation of local mental health courts. Like the drug courts that currently exist in Berrien County and elsewhere, these courts would allow defendants with serious mental illness, serious emotional disturbance or developmental disability, or whose substance abuse is connected with those disabilities, to complete probation including intensive mental health treatment and by doing so avoid conviction or reduce their potential sentence.

Under the new statutes, a defendant charged with a non-violent offense can enter a plea and submit to a screening and mental health evaluation. Based on that evaluation, the judge may accept the defendant into the mental health court. If the judge doesn’t send the defendant to the program, then he or she is allowed to withdraw the plea and nothing that was said in the evaluation regarding drugs or alcohol can be used against him or her at trial.

Once in the program, the defendant will be provided individual, comprehensive treatment and community services including mental health and substance abuse treatment, education, and vocational assistance. On the other hand, the defendant is required to complete all terms of probation, treatment, drug and alcohol tests, and pay fines, costs, fees, and medical treatment expenses (unless doing so would be a financial hardship or interfere with treatment).

If everything goes as planned, the defendant’s charge could be dismissed if the he or she qualifies for one of several second-chance statutes. But if dismissal is not an option, sentencing will still take into account the defendant’s cooperation and success in the program. If the defendant does not complete the program, the failure cannot be held against him or her at sentencing.

Local mental health courts provide structure and options to defendants and courts trying to manage mental illness that causes or impacts his or her mental health difficulties. However, whether each court decides to implement this option remains to be seen. If you need help with criminal charges, call Attorney Peter J. Johnson at 269-982-1100 for a consultation.

*Please note: Every case is different, and there may be some aspect of your particular case which may result in an outcome other than is described above. This post is not intended as legal advice and may not apply to your particular case. It is always best to contact our office for a consultation if you have been or believe you may be charged with a crime.

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Medical Malpractice Claims

Defensive Medicine

Medical Malpractice Claims

Defensive Medicine: Many Doctors Over-Treat Patients Due to Fear of Medical Malpractice Claims

The skyrocketing cost of medical malpractice insurance premiums has changed the way many physicians practice medicine, prompting some to refuse certain patients with complex medical problems or to order unnecessary tests on other patients. Such defensive medicine can involve unwarranted lab tests or x-rays or even more invasive procedures to help ensure certainty regarding a diagnosis. Even more troubling for the most vulnerable patients, defensive medicine can result in a surgeons refusal to perform a complex operation on a sick patient for fear of a negative outcome and eventual malpractice lawsuit.

A recent study published in the Archives of Internal Medicine revealed that many patients receive too much medical care and treatment. The study found that 42 percent of American primary care physicians believe that patients receive more aggressive medical care than is necessary. The study also revealed that many doctors feel they must provide excessive care to patients, due in large part, to concerns about being the subject of medical malpractice claims.

The study involved 627 physicians, most of whom had practiced medicine for nearly 25 years. Of the doctors surveyed, just 6 percent expressed concern that patients were receiving too little care. Most doctors reason that they could risk medical malpractice lawsuits if they fail to take every conceivable measure to cure or prevent an illness. They admitted over-treating and over-testing, in order to attain clinical performance standards, despite the small amount of time they have to actually consult with each patient.

The vast majority of physicians surveyed a €“ 83 percent a €“ believe they could be sued if they opted not to order every test that is indicated for a particular situation. On the other hand, just over 1 in 5 doctors believe they could be sued for ordering an unnecessary test.

Nearly half of the survey respondents reported that nurse practitioners and physician assistants provided more aggressive treatment than primary care doctors, and 61 percent indicated that sub specialists also provide more aggressive treatment. Experts believe that defensive medicine could be mitigated if doctors more effectively communicated with their patients about their illness and the pros and cons of various tests.

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