Idaho Law Blog

Personal injury law in 2021 will experience several important trends.  One key trend is that defendants and insurance companies in personal injury cases will continue to be motivated to settle cases out of court during the current Covid pandemic situation.  This is because, all else being equal, personal injury jury trials are being delayed for months given that in person jury trials cannot take place.  Insurance companies and their insureds, as well as large self-insured entities, do not simply want unresolved cases sitting on their books for an indefinite amount of time, especially large cases that force them to carry a potentially significant amount of financial risk on their books indefinitely.   Moreover, insured defendants in personal injury cases do not want to live with the unknown in terms of claims exposure; they would rather amicably resolve the matter than live with it indefinitely.

 

A second key trend in personal injury law in 2021 is the continued use of remote technology, such as the popular video conferencing software, Zoom.  This type of technology is now being routinely used by judges in Courts to conduct various hearings, scheduling conferences, and other pre-trial motions in personal injury cases.  This also includes using remote video conferencing technology for depositions in pending personal injury cases.  Personal injury attorneys have adapted well to the use of Zoom for depositions in personal injury cases and 2021 should see this trend continue. This makes sense in that it reduces potential virus exposure, saves money in terms of travel expenses, and provides a relatively simple and reliable platform for taking testimony.

 

A third key trend in personal injury law in 2021 that we predict is a recognition by insurance companies in personal injury cases that claims for pain, suffering, and loss of enjoyment of life damages are increasing in monetary settlement value.  This is because, through the Covid pandemic, our collective awareness of, and appreciation for, the value of a normal day-to-day life has increased exponentially.  Any injury that imposes limits or barriers on normal day-to-day living will be recognized for the very serious imposition that it is.  People now do not take normalcy as much for granted, including as to things such as mobility, the ability to work, the ability to travel, the ability to go out and to recreation and leisure activities, and the ability to engage in human interaction.  Any personal injury that limits or impairs these things will be recognized as all the more significant and thus worth more in terms of money damages to achieve fairness on any given personal injury insurance claim or personal injury lawsuit. 

  

A fourth personal injury law trend for 2021 is the types of personal injury cases, or categories of personal injury cases.  Our personal injury lawyer anticipates an increase in distracted driving cases as the increase in use of cell phone technology continues to increase.  As we slowly begin to return to normal, our personal injury attorney sees an increase in business related personal injury cases, including slip and fall cases, falling merchandise injury claims, negligent security cases, and dram shop liability cases.  Product liability injury cases should hold relatively steady, as should medical device cases and prescription drug lawsuits.  Medical malpractice is somewhat unpredictable, as is nursing home litigation.  Covid related claims certainly do exist, however state and federal law immunity protections may blunt such cases; it is too early to tell.  More straightforward medical malpractice related claims will most likely hold steady.  A more interesting question is societal attitudes towards healthcare providers and how the current pandemic has shaped views, both positive and negative at the individual and system level.  Mahoney Law, PLLC handles all these types of personal injury cases, as well as many more types of personal injury claims.

 

Contact Mahoney Law, PLLC for your personal injury claim attorney.  If you, a family member, loved one, friend, or acquaintance is in need of personal injury lawyer services, do reach out to Mahoney Law, PLLC.  We are a full service personal injury law firm. 

Mahoney Law, PLLC of Idaho provides product liability law firm services to those seriously injured by unreasonably dangerous and unsafe products.  Our product liability attorney assists individuals and families who have suffered injury or death due to unsafe products, with either manufacturing defects or design defects.  Mahoney Law’s product liability lawyer helps you investigate and determine if a claim or lawsuit is appropriate for injuries or death from products that malfunction and cause catastrophic harm.    

Personal injury from a product can take many forms, and can arise from many different types of products.  Burn injuries, amputation injuries, paralysis, severe lacerations, inhalation injuries, as well as tragic wrongful death situations can all be caused by unsafe consumer products.  The full range of products have been implicated in injuries and death, from vehicles, to home consumer products, to dangerous equipment used on the job, to recreational products and equipment as well.

Some product liability law basics are as follows.  First, each state will have its own time deadlines within which to take legal action on any sort of personal injury or wrongful death case, including those due to product liability.  Idaho usually has a two year statute of limitations, but that can vary depending on the situation and the age of the claimant.  There may also be a so-called “statute of repose” that may govern how old of a product can give rise to a valid lawsuit.  Second, most states have statutes that apply to product liability cases.  For example, in Idaho, we have the Product Liability Reform Act:  https://legislature.idaho.gov/statutesrules/idstat/title6/t6ch14/  This sets forth certain technical, legal details that apply to injury and death cases due to product liability as to which the law firm you hire should have good knowledge.  Third, federal regulations may apply to a product liability claim involving personal injury or wrongful death, depending on whether the manufacturing of the product is subject to federal regulation.  A common example of this are various federal motor vehicle standards, which may give rise to the sometimes complicated legal doctrine of “federal preemption,” wherein product manufacturers argue that state law claims cannot be brought due to the existence of federal standards. Fourth, state courts as well as federal courts have decided cases involving product liability.  That case law may have precedential effect on a new product liability case as to which your attorney should be familiar.  Fifth, very generally speaking, the person bringing the product liability personal injury lawsuit or product liability wrongful death claim must prove through their lawyer that a product is unreasonably dangerous, defective, and/or that a failure to provide adequate warnings is involved.  This is usually done through evidence of malfunction and expert witness testimony, typically by engineering experts and human factors experts with expertise as to the subject area at issue.  

Here are a few of the types of product liability cases that Mahoney Law’s product liability lawyer has handled:

·      Flammable fabric case involving ignited clothing and severe burns to a child

·      Defectively designed archery equipment that impaled the hunter’s hand 

·      Defectively designed yard maintenance equipment that impaled the user’s leg

·      Unsafe cleaning chemicals that exploded and burned the user’s eyes

·      Unreasonable dangerous pharmaceutical drug that caused severe renal failure and death

·      Hair removal laser case involving a failure to warn and eye injury

·      Severe injuries due to a manufacturing defect in a bicycle frame

·      An auger used on the job that did not have proper guarding leading to the near amputation of the user’s arm.

If you, a family member, loved one, or friend has suffered personal injury or wrongful death due to an unsafe product, please do not hesitate to contact us here at Mahoney Law in Idaho for a free, and confidential review to determine if there might be a product liability case.

https://www.patrickmahoneylaw.com/areas-of-practice/product-liability-law

 

A head injury of any type can potentially be devastating and life altering.  We understand that here at Mahoney Law of Idaho.  Our brain injury lawyer will work with you to fully document and present the extent of your injury.  Our concussion attorney will seek assistance from qualified and experienced experts to prove the impact of the concussion on your life.  As a head injury law firm, we work to develop the facts as to why the opposing party was negligent or reckless in causing  your brain injury so you receive the money damages to which you are fairly entitled under the law.  Traumatic brain injury law in Idaho is one of our areas of focus and we have helped clients here in Idaho with all types of TBIs, from concussions to severe blunt force head trauma.  YouTube Video Link:  https://youtu.be/0O3WSemlM9o

In the personal injury context, where the opposing side may be liable to pay money damages for causing an injury, brain injuries can have numerous causes.  There are many different types of brain injury cases, TBI claims, concussion lawsuits, and head injury litigation handled by an attorney.   Car accidents, truck collisions, slip and falls, falling merchandise and falling objects, heavy equipment accidents and the like can all cause serious brain injuries wherein the at fault party may be liable to pay damages in a civil lawsuit brought by a lawyer.  Each case must be investigated and evaluated by the law firm to see if it is meritorious.  Mahoney Law handles all types of head injury, brain injury, TBI, traumatic brain injury, closed head injury, and concussion cases and claims in Idaho.  Working with well qualified neuropsychological experts is a critical part of developing a brain injury claim, whether it be for a severe TBI lawsuit or a concussion insurance claim.   Such experts will perform testing as to various aspects of brain functioning.

 

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Given our vast experience in representing TBI clients, we have learned to disprove several common myths and misperceptions that the defense sometimes tries to raise to deny our clients fair monetary recovery.  For example, it is well established that entire categories of head injuries will not show up on MRI scans, CT imaging, and of course X-ray.  Although somewhat of an oversimplification, this is because the level of the brain damage can be so microscopic that it simply does not show up based on our current brain imaging technology.  

 

Another common myth or misperception we often hear in concussion cases is that there should be a set time after which you should be healed, recovered, and back to normal.  This is not accurate.  Some brain injuries heal quickly, others take a more mid-level amount of time, while other closed head injuries can take years to heal and the victim may even have permanent deficits that are life altering.  There is no correct or normal amount of time for healing from a TBI.  Likewise, the time for healing does not necessarily depend on the perceived severity of the injury.  For example, a closed head brain injury from the brain simply moving violently within the skull may actually take longer to heal than a concussion from a direct force blow to the head.  

 

Speaking of which, another inaccurate assertion we often confront from the defense and insurance companies is that there must be a direct blow to the head, blunt force trauma, for a victim to sustain a brain injury.  This is false.  It is well known that very serious TBIs can be suffered simply from the victim’s head violently moving back and forth or side to side, without actually striking the head, such as may happen to a restrained passenger in a motor vehicle collision.   Simply because you do not have an external bump, wound, or cut on your head does not mean an individual does not in fact have an internal brain injury.  Similarly, there does not have to be a loss of consciousness (LoC) for there to be a very real brain injury.  

 

To recap, a brain injury victim may be clinically diagnosed with a TBI despite normal imaging, with no loss of consciousness, with no direct blow to the head, and may have a protracted recovery period or may have permanent impairment.  Brain injury law involves recognizing these issues and assisting our clients accordingly.  

 

A concussion, brain injury, TBI, closed head injury, or the like can affect the victim’s work, personal relationships, hobbies, activities, and day to day enjoyment of life.  The symptoms can be overwhelming and debilitating, and can include some or all of the following:

·      Headaches

·      Dizziness

·      Vertigo

·      Balance problems, unsteadiness

·      Audiology problems, ringing in ears

·      Memory issues, recall problems

·      Speech and language issues such as word finding 

·      Light sensitivity

·      Blurry vision

·      Sleep issues

·      Nausea and vomiting 

·      Confusion

·      Motor functioning impairments, trouble walking 

·      Temperament changes, emotional changes, anger issues

·      Executive functioning limitations 

·      Problem solving impairments 

 

Under Idaho law, we work to obtain full compensation for our concussion injury clients.  We work with appropriate experts to obtain neuropsychological testing to document the extent of the issues our TBI clients face.  If the brain injury has caused a loss of income and time off work, and potentially future employment impairment, we work with qualified vocational and economic experts to document this to recover this important component of damages on our head injury cases.  We place the largest emphasis on what are referred to as general damages, in other words the human harms and losses that closed head injury victims suffer.  From physical pain, to emotional difficulties, to impaired relationships, to a very real impact on the enjoyment of day to day life, we communicate with you so as to be able to show the opposing side and jury at trial this, the largest part of the damages. 

 

Mahoney Law has successfully represented brain injury victims in Idaho.  In one case, a bundle of boards fell on our client’s head at a large home improvement store.  The victim was diagnosed with a traumatic brain injury and suffered ongoing balance problems.  In another case, our client was rear-ended at a stop sign before an intersection.  The opposing driver was in a large fuel truck that slid on ice while the driver was on his cell phone.  Our client sustained a severe head injury due to the force of the impact and suffered from memory loss, headaches, and emotional difficulties.  Both of these cases were settled for substantial dollar amounts after we properly investigated the liability facts and proved our client’s physical and mental damages.  We have handled numerous other brain injury related claims here in Idaho. 

  

If you, a family member, friend, or loved one is in need of legal help for a brain injury, concussion, closed head injury, head injury, or TBI, please reach out to Mahoney Law here in Idaho.  We have been compassionately serving Idahoans for 25 years.  Sometimes these cases can be settled before a lawsuit is filed.  As a brain injury law firm, we work directly with the at fault party’s insurance company to secure you full and fair recovery to the maximum extent under the law.  Sometimes, however, a lawsuit is necessary as the opposing insurance company may undervalue our client’s claim.  As a concussion law firm, we are ready, willing, and able to litigate your case for full justice through a head injury lawsuit.   https://www.patrickmahoneylaw.com/areas-of-practice/personal-injury-attorney 

 

 

Here are links to brain injury resources:

https://www.biausa.org  Brain Injury Association of America

 

Idaho’s two largest hospital systems have traumatic brain injury and concussion programs:

https://www.saintalphonsus.org/specialty/orthopedic-care/services/sports-medicine/concussion-program

https://www.stlukesonline.org/health-services/specialties/programs/traumatic-brain-injury-program

 

https://www.mayoclinic.org/diseases-conditions/traumatic-brain-injury/symptoms-causes/syc-20378557  The Mayo Clinic on traumatic brain injury symptoms and causes 

 

https://www.cdc.gov/traumaticbraininjury/index.html  The CDC on traumatic brain injuries 

Many potential new clients understandably want to know how the lawyer in a personal injury case gets paid.  The same thing is true on medical malpractice cases where injured patients ask about how the attorney for the patient is compensated.  Whether it is a brain injury case, an automobile collision claim, or a medical malpractice lawsuit, lawyers who handle these types of cases on behalf of the plaintiff are typically paid on what is referred to as a “contingency fee” basis.  That is simply a fancy way of saying they are paid on a commission.  Simply put, under this type of arrangement, the lawyer is only paid an attorney fee out of any amount recovered for the client.  The attorney fee is a percentage of the amount collected, with the percentage usually depending on the difficulty of the case and the stage in the process it reaches.  

 

Clients usually want to know what the justification for a continency fee is, in other words why is it fair?  The main alternative to a contingency fee is to pay a lawyer on an hourly basis, which is very expensive, anywhere from, for example, $200 per hour up to $500 per hour our more depending on the location, which can equate to thousands upon thousands of dollars over the course of a case (which is usually how large corporations or big insurance companies pay their teams of multiple lawyers from larger law firms).  Most people understandably cannot afford this, or are simply not in a position financially to where they are willing to pay that much to a lawyer to take on a complex and lengthy case with hundreds or thousands of hours of attorney work.  Another reason for a contingency fee arrangement is that it transfers some of the risk of loss to the lawyer.  In other words, some cases present a risk of loss; nothing is certain in litigation.  An experienced lawyer may be willing to take on that risk in exchange for a percentage of the outcome for attorney fees, rather than have the client pay hourly and risk paying a large amount for attorney fees yet losing the case.  So, the lawyer agrees to potentially get paid later, if successful, in the future, based on an uncertain outcome.  There is also the matter of litigation costs and expenses, such as for expert witnesses, depositions, and trial costs.  These out of pocket costs must be paid as the case moves forward and can amount to many thousands of dollars.  Typically, under a contingency fee arrangement, the lawyer advances these to be paid out of any amount recovered for the client.  So, the continency fee provides some incentive for the lawyer to take on the business risk of advancing these litigation costs.  

 

The bottom line is that contingency fee arrangements allow lawyers to help people who are otherwise not in a position to pay hourly, or who are unable to advance thousands of dollars of litigation expenses and costs, or who cannot incur the financial strain of potentially losing the case.  This type of payment arrangement therefore makes sense and allows ordinary people to take on much larger adversaries who are attempting to avoid reasonability and deny justice based on perceived economic superiority.  Mahoney Law of Idaho has a track record of success in representing ordinary Idahoans wage extraordinary battles.  Call us for a free and confidential consultation.                

Clients and prospective clients often ask us, “are medical malpractice cases hard to win?”  “Can I win a medical malpractice case at trial?”  Or, “I heard medical malpractice cases were impossible for a patient to win, is this true?”  While there are many different ways to go about analyzing the answers to these questions, and no approach is perfect, one way is to review the medical malpractice verdict results in Idaho over time.  

 

Going back over approximately the last fifteen years, we find numerous plaintiff-patient medical malpractice verdicts for substantial dollar amounts.  Since 2005, there have been 21 reported medical malpractice jury trials in Idaho, in venues all over the state.  13 of those were for the plaintiffs.  8 of those were defense verdicts.  Based on this data, albeit a small sample size and albeit a review of only those cases that have actually gone to trial, plaintiffs (patients) are, on average, winning these cases at trial more than they are losing them, at approximately a 62% win rate.  The dollar amounts are also relatively large, ranging from $600,000 on the low end to $7.9 million on the upper end.  

 

Looking at this data set, the conventional wisdom that these cases are impossible for plaintiffs, or even harder than average for plaintiffs to win, is simply not accurate, and the assertion that Idaho has low dollar amount verdicts in these cases is demonstrably false.  All too often the defense inaccurately takes the position that these cases are hard to win in Idaho as a general matter.  Such an inaccurate risk assessment may result in the defendant healthcare provider later finding themselves subject to a substantial verdict and judgment.  A high dollar money judgment can possibly be excess of the healthcare provider defendant’s medical malpractice liability insurance policy limits -- a scenario that raises questions about conflicts of interest on the part of insurance defense counsel and bad faith conduct on the part of the insurance company.

 

Dollar amount of plaintiff verdicts in medical malpractice cases in Idaho by venue and date:

 

10/19: Idaho Falls $893,422

2/19: Ketchum $619,000

4/18: Idaho Falls $7.9 million

2/18: Boise $2.2 million

5/17: Boise $632,000

6/16: Twin Falls $3.8 million

9/14: Boise $3.7 million

8/14 Boise $1.1 million

11/13: Boise $1 million

10/11: Coeur d’Alene $760,000

4/09: Caldwell $4.2 million

4/06: Boise $6 million

For a free, no obligation consultation with Mahoney Law