St. Joseph Michigan Criminal Defense Blog

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Criminal Law Case

Court Says Chronological Age Trumps Developmental Disorder For Sentencing

Criminal Law Case
Recent decisions by the United States Supreme Court and Michigan Supreme Court have led to more permissive, fact-based sentencing for juvenile offenders. But a recent 6th Circuit Court of Appeals opinion draws a bright line on who juveniles are.

The defendant in this case was a 20 year old who was charged with receiving child pornography. He had admitted to downloading the pornography, and his computer was found to have 261 images and 46 videos of children ages 4 to 12. He pled guilty.

What makes this case interesting is that the Defendant had been diagnosed with a condition called Human Growth Hormone Deficiency, in which the body does not produce enough of certain growth hormones and so physical maturity and sexual development are delayed. When evaluated by a clinical psychologist, the defendant had an IQ of 87 (a low average intelligence score) and a mental age of 15 1/2. The psychologist said that It is quite likely that in all ways other than chronological age, this individual was still a juvenile at the time of his arrest.

The trial court sentenced the defendant to the adult mandatory minimum sentence of 5 years. The judge said that even that sentence was too severe, but that he had to comply with the statutory minimum sentence. The defendant appealed, claiming that he should not be considered an adult for sentencing purposes given his development disability and mental age.

The Federal 6th Circuit Court of Appeals disagreed. After considering the recent Supreme Court cases involving juvenile sentencing, it found one thing consistent: they all cut off at age 18. It acknowledged, The Supreme Court treats juveniles differently because they ‘have diminished culpability and greater prospects for reform, but found that a line still needed to be drawn.

The court found the alternative, a psychological evaluation of the mental maturity of each defendant, to be unsustainable in our current court system and noted that the analysis would have to apply to juveniles too. This could create a situation where a particularly mature juvenile would be treated as an adult in violation of the Supreme Court’s findings of cruel and unusual punishment.

While the court appeared sympathetic to the challenges faced by the defendant, it was unwilling to open the court to such maturity questions just because there may be occasions where a mandatory minimum sentence seemed unnecessarily harsh.

*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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wrong site surgery cases

Wrong-Site Surgeries Increase

wrong site surgery cases

Wrong-Site Surgeries Increase in Number

Imagine that you’re a patient going in for routine surgery. Now imagine that you’re one of 40 U.S. patients a week who awakens from anesthesia only to find that your surgeon has operated on the wrong site. Say for example, your right leg instead of your left leg. What would you do? Sue your doctor? The hospital? A surprising report from The Joint Commission, which accredits and certifies healthcare organizations in the United States, finds that the problem of wrong-site surgery has worsened, not improved. More and more medical patients are waking up to find that their doctors made an error in a common surgical procedure.

According to Kaiser Health News, wrong-site surgeries continue to occur on a regular basis. This comes years after the president of The Joint Commission introduced mandatory rules aimed at preventing surgeons from performing procedures on the wrong site. The study found that wrong-site surgery occurs an estimated 40 times a week in U.S. hospitals and clinics. However, according to the commission, which encouraged surgeons to submit cases of error, only 93 cases were reported in 2010.

According to the commission, reporting of such incidents is voluntary and confidential. This policy is in place to encourage doctors and hospitals to come forward . Aside from the commission, the laws in about half the states, do not require reporting.

Despite campaigns to encourage surgeons to participate in a timeout at the start of every surgery, where each surgical team takes a moment to verify the procedure to be performed, the article posits that the mistakes may be explained by the increased time pressures surgeons face. Because reporting is not required by many states, the number of estimated wrong-site surgeries could be a gross underestimation.

Interestingly, a smaller percentage of wrong-site procedures are litigated in medical malpractice suits than one might think. Settlements in these cases are substantially lower than those where the wrong-site patient seeks representation.

According to a 2010 study, which reviewed 132 wrong-site cases, about one-third of procedures resulted in death or serious injury. Despite these horrific outcomes, the average compensation to victims was approximately $80,000 in cases that resulted in a lawsuit and $47,000 in cases settled without legal action. As incidents of wrong-site surgery continue to increase, patients and their advocates should continue to press for more accountability from their hospitals and their doctors.

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Personal Injury law

Be Wary of Carbon Monoxide Levels During Winter

Personal Injury law
If you live in cooler climes, winter is a time to take precautions against carbon monoxide poisoning. Residents of the northern parts of the country are starting to seal up their homes to keep them warm over the winter, which can increase the threat of carbon monoxide poisoning.

According to the Centers for Disease Control and Prevention, carbon monoxide poisoning is the leading cause of accidental poisoning deaths in the United States. Rates of injury and death are highest in the winter and among residents of the Midwest and Northeast United States. To minimize risk, it is important to understand the symptoms of carbon monoxide poisoning and how to prevent it in your home and other sealed locations like your car and garage. .

Carbon monoxide is a dangerous gas that you cannot see, smell, hear, taste or feel. Without detection equipment, your first clue that carbon monoxide is present may be symptoms of poisoning in yourself or a loved one. Many household appliances produce carbon monoxide, including oil- and gas-burning furnaces, portable generators and charcoal grills.

Symptoms of Carbon Monoxide Poisoning

A person with carbon monoxide poisoning may exhibit flu-like symptoms, such as:

  • Headache
  • Dizziness
  • Chest pain
  • Nausea and vomiting
  • Fatigue
  • Confusion

Pets as well as humans can exhibit these symptoms. If anyone in your home shows these signs, it is important to immediately:

  • Provide fresh air, either by leaving the premises or opening all doors and windows
  • Put distance between the victim and the likely source of the carbon monoxide
  • Call 911 and state that you suspect carbon monoxide poisoning
  • Get medical attention for the victim
  • Have your home inspected before returning (your local fire department or police department should be able to help with this)

Preventing Carbon Monoxide Poisoning

Carbon monoxide can easily be fatal if untreated, especially among children and the elderly,. Increase your family peace of mind by taking the following steps to prevent carbon monoxide poisoning:

  • Install CO detectors outside every bedroom and in the basement or where your oil or gas-powered appliances are.
  • Get regular service for appliances that use oil or gas.
  • Do not use appliances to heat your home that are not built for that purpose, such as portable camping stoves, lanterns, charcoal grills or your oven.
  • Never sleep in a room heated by a gas or kerosene space heater.

Taking these simple steps can keep your family safe from CO poisoning throughout the winter months.

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Intentional infliction of emotional distress

Intentional Infliction of Emotional Distress

Intentional infliction of emotional distress

Can you be sued for hurting someone’s feelings?

In a civilized society, citizens are expected to conduct themselves with at least a small amount of regard for the feelings of others. To prevent behavior that can cause severe anguish, the law has created a tort called intentional infliction of emotional distress. An intentional infliction of emotional distress claim allows those who are emotionally injured by another person to recover for emotional injuries as well as any physical injuries that result from distress induced by the bad behavior, such as migraines, ulcers or a miscarriage.

In order to prove intentional infliction of emotional distress, four elements must be shown. First, the defendant must act either intentionally or recklessly. The defendant conduct must be extreme and outrageous. Third, the plaintiff must have suffered extreme emotional distress. And lastly, the plaintiff conduct must be the cause of that distress. In addition, some states require that the incident that caused the emotional distress must have taken place in public.

Some examples of behavior that may constitute intentional infliction of emotional distress include a person telling a parent their child has died, while knowing it wasn’t true; a medical professional telling a patient he or she is HIV positive as a joke; or a person threatening to shoot another person if he or she does not meet certain demands. Some behavior that may seem like intentional infliction of emotional distress but probably is not would include a person having an affair with a friend’s spouse; a landlord evicting a dying person who hasn’t paid rent for a few months; or an action that was intended as a harmless prank, such as toilet papering someone’s house.

When determining whether intentional infliction of emotional distress has occurred, a judge or jury must take into account the emotional state of the victim and whether the plaintiff knew of that emotional state. For example, a person locking another person who is scared of roaches in a closet filled with roaches could be intentional infliction of emotional distress in that instance, while it may not be to a person who isn’t afraid of roaches.

Intentional infliction of emotional distress can be hard to prove. The hardest element to show is that the defendant’s conduct was so extreme or outrageous to be completely intolerable in a normal society. It is not enough for the defendant to simply have behaved badly or even very badly “ the behavior must be atrocious and harmful to one’s mental health.

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suing for personal injury

Should I Sue for My Injuries?

suing for personal injury
Whether you’ve been injured as result of a car accident, fall at the local market or a bite by a neighbor’s pit bull, you may be asking yourself, Should I Sue? Most people think they should, and that a sizable settlement payment will be forthcoming.

In our legal system, a negligent party is expected to pay for damages you incurred because of the accident or injury, such as medical costs, lost income, property damage, and pain and suffering. In certain cases, punitive damages may be awarded if a person’s conduct was malicious or intentional. Nevertheless, just because you have been injured does not necessarily mean that you should file a lawsuit, a decision which rests on multiple factors.

Such factors include the seriousness of your injury, the level of fault that rests with the negligent party, and your own liability for involvement in the accident or causing your own injury. One of the biggest considerations, however, is whether the wrongdoer has the financial means to pay any judgment that you may be awarded. If the defendant is insolvent, your judgment may prove to be worthless but your attorney and other professionals involved in your case will expect to be paid.

Accordingly, insurance coverage is a significant consideration. Although the defendant may have few assets from which to collect a future judgment, there may be sufficient insurance coverage available to pay any eventual judgment. Note, however, that most insurance policies typically do not cover intentional torts.

An experienced personal injury attorney can help you review the various risks and benefits of pursuing a lawsuit, in light of your specific circumstances. Before deciding whether to undertake the time and expense of litigation, you must carefully weigh your involvement in any comparative or contributory negligence, what evidence will be necessary to prove your case and the amount of damages you should be awarded, and the availability of assets or insurance to secure payment of a future judgment.

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