St. Joseph Michigan Criminal Defense Blog

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Confidential Settlements

Confidential Settlements

Confidential Settlements
The vast majority of significant personal injury settlement offers come with a catch “ the defendant wants a confidentiality clause included in the settlement agreement, barring the plaintiff and his or her attorneys from publicly discussing the facts of the case or terms of the settlement. In exchange for keeping their mouths shut, plaintiffs often benefit by obtaining higher compensation. In many circumstances, the plaintiffs also have a preference for maintaining their own privacy.

Why do the defendant attorneys routinely insist on confidentiality clauses in their settlement agreements? Typically, defendants “ and their attorneys “ want to prevent evidence, such as witnesses or documents, from being accessible to future plaintiffs. In the grand scheme of things, this makes the defendant less accountable for its conduct.

Arguably, our legal system and the overall population would benefit from an outright rejection of confidential settlement agreements. Yet, most plaintiffs lawyers quickly capitulate; a settlement in hand is a sure thing, prevents future expenses necessary to bring a case to trial, and avoids the uncertainty regarding how much a jury might award in damages. Plaintiffs typically agree to maintain secrecy, as well. Seriously injured victims and their family members may be struggling financially and emotionally, and have a strong desire to put the matter behind them. It is understandable that they focus on their own needs and recovery, rather than how it may impact future plaintiffs or the public’s access to information and evidence.

Some attorneys and ethicists believe that lawyers rules of professional conduct provide them with sufficient grounds to reject secrecy clauses. Most states ethical rules favor enabling the public to have a realistic understanding of which attorneys have expertise in cases involving certain circumstances or against particular defendants.

However, those same rules of professional conduct also require attorneys to act in the best interests of the client “which often means agreeing to a speedy or generous settlement offer. Some legal ethicists suggest addressing confidentiality upfront, at the beginning of settlement negotiations. However, this approach may reduce the amount of a future settlement offer, or cause the defendant to take settlement off the table entirely. This risk, too, must be discussed with and agreed to by the client.

Furthermore, in this type of situation, the risk is borne by the plaintiff but the benefits are only realized by the general public, as mentioned above, or the lawyer who later enjoys bragging rights when he would otherwise be muzzled. It can be a tough sell, and one fraught with its own ethical implications. In the end, only the client can decide what is best for his or her situation. Some will agree to the risk for the greater good while others must do what is best for them and their families.

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Medical Malpractice

Do You Have a Medical Malpractice Case?

Medical Malpractice

Your Doctor Made a Mistake But Do You Have a Medical Malpractice Case?

The term medical malpractice, sometimes called medical negligence, refers to a situation in which a health care provider fails to act in accordance with standards of accepted medical practice, causing injury or death to the patient. A physician, nurse or other health care professional is considered negligent if his or her conduct is below the standard of care, i.e. the degree of care and skill that the typical health care professional would provide to a patient seeking treatment for similar symptoms or under similar circumstances.

It’s not just doctors and nurses who can be sued for medical malpractice. Any licensed health care provider who is in a position of trust can be held accountable for diagnosis or treatment that causes injury or death. These can include lab technicians, radiology technicians, specialists who interpret your test results, ambulance companies and their employees, and facilities such as hospitals, nursing homes and pharmacies.

There are many types of mistakes which may be considered medical malpractice, depending on the overall circumstances of your injury or illness and the treatment you received. Common medical malpractice claims include:

  • Incorrect or missed diagnosis
  • Failure to conduct appropriate diagnostic tests
  • Failure to properly treat your medical condition
  • Failure to properly administer medications
  • Failure to properly perform a surgical procedure
  • Failure to manage a pregnancy or safely deliver a baby
  • Failure to warn you of the risks of treatment, which would enable you to give your fully informed consent to the treatment
  • Failure to anticipate a problem which should have been anticipated in accordance with the standard of care

Even if your medical treatment results in a negative outcome, the doctor’s or nurse’s conduct may not rise to the level of malpractice or negligence. Furthermore, even if the treatment you received clearly fell below the standard of care and is deemed negligent, you may run into difficulties bringing your claim due to the high cost of litigating a medical malpractice case. Because medical malpractice cases often hinge on the definition of the standard of care required for that particular situation, experts must be consulted and retained to prepare reports, give depositions and testify in court.

You should consult with an experienced medical malpractice attorney who can help you determine whether the health care provider’s negligence was truly the result of malpractice and whether your case is worth pursuing. Your attorney will review your medical records and will likely have to retain a medical expert who can review your records to evaluate the merits of your claim. Due to the significant expense involved in performing such reviews and obtaining assistance of experts for a medical malpractice claim, the vast majority of meritorious cases settle before the case goes to trial.

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Intoxicated Law

Michigan Court Broadens Operating While Intoxicated Law

Intoxicated Law

The state’s operating while intoxicated statute (OWI formerly DUI) is relatively clear and well settled. It prohibits operating a motor vehicle while under the influence of alcohol (over 0.08% blood alcohol content) or a controlled substance. Most people who get charged with the statute know exactly why. But a recent decision by the Michigan Court of Appeals could put many drivers in danger of receiving this potentially life-changing misdemeanor charge.

The risk: driving while under the influence of a medication labeled a controlled substance. The statute clearly includes controlled substances, which are drugs listed on schedules 1 to 5 of the Controlled Substances Act.

A person, whether licensed or not, shall not operate a vehicle upon a highway or other place open to the general public or generally accessible to motor vehicles, including an area designated for the parking of vehicles, within this state if the person is operating while intoxicated. As used in this section, “operating while intoxicated” means any of the following: (a) The person is under the influence of alcoholic liquor, a controlled substance, or other intoxicating substance or a combination of alcoholic liquor, a controlled substance, or other intoxicating substance.

This prevents people from driving after using marijuana or cocaine, for example.

But further down the list of schedules are drugs that are often prescribed for daily use. In addition, the Michigan Board of Pharmacy has the authority to add drugs to the schedules or to change on which schedule a drug is listed.

The defendant in People v. Kane had accidentally taken an Ambien (Zolpidem) sedative rather than his prescribed Xanax. Zolpidem is not listed on the statutory schedules 1 through 5, but the Michigan Board of Pharmacy has listed it as a schedule 4 controlled substance. The court ruled that he could be charged with operating while intoxicated because he drove with Zolpidem in his system.

The court held the defendant responsible not only for knowing whether the drug he took was on the legislatively set schedules, but also for keeping up with the changes made by the Michigan Board of Pharmacy. The lists can be found here. If he was under the influence of anything on those lists, he was not allowed to drive.

*Please note: Every case is different, and there may be some aspect of your particular case which may result in an out some other than is descrigbed 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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Cannabutter

Court Says No To Cannabutter

Cannabutter

A recent Michigan Court of Appeals decision has narrowed the scope of protected marihuana use in the Michigan Medical Marihuana Act (MMMA). As a result of this opinion, registered patients will no longer be allowed to use resin-based products under Section 4.

Section 4 of the MMMA protects registered patients and their caregiver from arrest or prosecution as long as they stay within the limits of that section. But that section only protects the possession or use of a small amount of usable marihuana. According to the MMMA, that means the dried leaves and flowers of the marihuana plant, and any mixture or preparation thereof, but does not include the seeds, stalks, and roots of the plant. MCL 333.26423(k).

In People v. Carruthers, the Defendant was a caregiver for 4 qualified patients. He was stopped for driving on a suspended license while carrying a small amount of smokable marijuana and several brownies made with Cannabutter made from the resin of the marijuana plant.

The prosecutor and the defense disagreed on how the brownies’ weight should be calculated. After the defendant was convicted, he appealed and asked the Court of Appeals to consider how much weight should have counted.

The Court of Appeals went further. It said that the amount of THC in the brownies was irrelevant because it was not made from the leaves or flowers of the plant, so it was not protected as usable marijuana.

The only option left to the Defendant was to assert the affirmative defense under Section 8, which uses a much broader definition of marijuana that specifically includes resin. The Court remanded the case for a hearing under Section 8.

*Please note: Every case is different, and there may be some aspect of your particular cas which may result in an outsome other than is descriged 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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Car Accident

What Not to Do After a Car Accident

Car Accident
There are many potential missteps after you have been involved in an auto accident. In the minutes, hours and days following a car wreck, it can be difficult to think clearly or to take note of important factors involving liability and compensation. Even if your injuries are minor and your vehicle is not damaged, you should follow these guidelines to protect yourself and preserve your right to compensation for your injuries, vehicle damage or lost income. Often times, your damages are more serious than they appear at first glance.

Don’t Apologize

Even if you think you are clearly at fault for the accident, don’t accept blame or apologize to anyone. The police and insurance adjusters will investigate the collision and determine where the fault lies. If it lies with you, you will most certainly be notified. But affirming your guilt before all the facts are discovered can only serve to undermine your personal injury claim or a potential defense if you are on the receiving end of a lawsuit.

Don’t Compare Notes

Avoid rehashing the accident with the other involved parties. You do not want to inadvertently admit fault for the accident, or make other statements that undermine a future legal claim. Additionally, swapping stories can cause confusion in your own mind regarding what happened immediately before and during the collision. Of course, you should give your statement to the police, if applicable. But further communications regarding the accident, your injuries, damage to your vehicle, or associated expenses for medical treatment or car repairs should be limited to your attorney.

Don’t Get into a Dispute with Other Drivers or Passengers

Tempers can sometimes flare. People may be hurt, property may be damaged. Nobody is getting to their destination, and everyone may be concerned regarding various obligations and future travel arrangements. If other parties become upset, agitated or violent, you should simply walk away. By refusing to engage in emotional dialogue or worse, a physical confrontation you avoid turning a routine fender bender into a major altercation which can result in its own legal ramifications.

Don’t Call the Insurance Company

If you think there is any reason why the insurance company may dispute your claim, you should speak with an attorney first. The attorney can advise you regarding what to say and what not to say to the insurance adjuster, or can communicate with the adjuster on your behalf. Insurance companies train their adjusters to ask specific questions designed to make your case look as weak as possible. Your insurance company should help you when you’ve been involved in an accident that’s part of what you pay for but ultimately the bottom line is of primary importance. The insurance business is far more profitable when the insurance companies do not have to pay out claims.

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