Wrongful Death Legal issues on Physician-Patient Privilege

States generally implement Physician-Patient privilege on wrongful death cases to maintain confidentiality about the patient's medical records. The physician can only disclose it, if he/she has a written consent from the patient. This medical privacy poses some concerns in litigating a wrongful death case, involving medical malpractice. 

When the patient dies, the surviving family member can have a hard time retrieving the medical records from the attending physician. 

However, some states implement exception to the physician-patient privilege rule. These states allow the surviving family members and the decedent's lawyer to obtain the medical records. 

These medical records are crucial in serving as an evidence for a potential medical malpractice wrongful death charge. 

Because of the value of such medical information in proving the negligent act of the physician, some states implement these rules:

1. The medical records can only be disclosed to a doctor or hospital representative. The decedent's lawyer cannot access such files. Legal issues arise on disclosing such medical information when the lawsuit has been filed in court. 
2. In some states, surviving family members and the lawyer can retrieve the medical records when the decedent has given a written consent for such disclosure. The permission must have been given during a personal injury litigation, or before the actual death. 

When the surviving family members (distributees) and the lawyer have a written consent to medical information, such right can be carried on to the wrongful death suit. 

For example: The head of the family suffered serious injuries in a car accident. He/she gave a written permission to the lawyer to retrieve medical records as evidence for the personal injury case. If the head of the family dies, the lawyer can use such permission to retrieve additional medical information as evidence for the wrongful death case.

The distributees can assert damages for the death of a loved one. Such damages are often referred to as pecuniary loss. It includes loss of consortium, loss prospect of future inheritance, infliction of emotional distress, and medical and funeral expenses.

The plaintiff will have to prove that the physician made a negligent act, causing the death of the person. The medical records can be used to prove such allegation. The plaintiff can also hire expert witnesses to substantiate the case. 

The plaintiff has a maximum of three years to file the medical malpractice wrongful death lawsuit. If the plaintiff has found the evidence after the time limit, the “discovery rule” can be used to assert exception. Discovery rule states that the statute of limitation time starts only upon the detection of evidence. 

Consult with a Wrongful death attorney in Los Angeles to help you file the lawsuit. 

The Mesriani Law Group has a wide range of legal resources as we work with the best lawyers and litigators in each state across the United States. We offer a unique attorney directory where you can find a lawyer's location and area of practices. For more information contact Mesriani Law Group at 310-826-6300 or visit the main office at 12400 Wilshire Blvd. Suite 810 Los Angeles CA 90025.

Tips on how to protect your status as an Independent Contractor

Working as an independent contractor has several advantages: It gives you maximum control over the affairs of your own business, flexibility on time, and huge profits. Add to this is the fact that you do not have to pay monthly taxes and are allowed to declare deductions.

However, the Internal Revenue Service (IRS) sets standards for classifying independent contractors. Failure to meet these criteria can lead to reclassification as employee.

Reclassification as an employee may cause you to lose your chance to declare deductions on your office equipment purchases or facility investments. Also, you might lose a current client because it doesn’t want to cover for the additional expense of hiring you as an employee.

If you are determined to preserve your status as an independent contractor you may follow these tips:

1. Maintain full control over the affairs of your business. This helps you show the IRS that you are in full command on the day-to-day activities in your work. Set your own procedures and process for completing projects. You may accept expectations from the client, but make sure you set the course for fulfilling such demands.
2. Do not accept training from client.
3. Set your own working hours. Make sure that you gain control over your time and how you meet the client's deadline.
4. Have your own office and limit doing the tasks within the client's premises.
5. Hire your own assistants to help complete the project.
6. Show that you can earn or suffer loss from a business transaction. Show that you have regular business expenses such as office rent, payment of salaries, and investment on facilities.
7. Charge your clients per project rather than per hour. Show that the price for such project can determine your profit or loss.
8. Obtain license permit for your business or profession
9. Have your business maintain its own bank account
10. Purchase insurance policy for your business
11. Advertise your business services to public
12. Maintain several clients throughout the year
13. Use written agreements. Specify that you are an independent contractor and indicate the terms and conditions of such business relationship. Include details on how much you will be paid for the project or services. This serves as a proof when the IRS verifies your independent contractor status.

Consult with a Los Angeles Business Attorney to learn more on how you can protect your independent contractor status.


The Mesriani Law Group has a wide range of legal resources as we work with the best lawyers and litigators in each state across the United States. We offer a unique attorney directory where you can find a lawyer's location and area of practices. For more information contact Mesriani Law Group at 310-826-6300 or visit the main office at 12400 Wilshire Blvd. Suite 810 Los Angeles CA 90025.

Stages of a Wrongful Death case

Vehicular accidents are often the cause of catastrophic injuries, leading to death. If your loved one was killed in an accident, you can file a wrongful death lawsuit. If evidence shows that the defendant has malicious intent to harm your family member, you can assert punitive damages.

You can consult with an experienced Wrongful Death lawyer in California to help you file the case.

Here is an overview of the stages of a wrongful death lawsuit:

Negotiation - You can meet with the defendant and come up with a mediation to resolve the matter. Your lawyer can write the demand letter stating the offense and the total amount of damages. If the defendant doesn't cooperate and you are not satisfied with the settlement amount, you can file the formal lawsuit in court.

Discovery - When the wrongful death lawsuit has been filed (it includes payment of court fees), you can start obtaining information from the other party or other sources to substantiate the case. You will have to gather evidence such as copy of police report, witness statements, photos from the accident scene, medical records, death certificate, and expert opinion.

Pre-trial - Legal representatives or lawyers from both parties may make arguments about the case. It includes the details on the plaintiff's complaint, the validity and credibility of evidence presented, and potential motion to dismiss the case.

At any stage in a wrongful death lawsuit, both parties can agree to reach an amiable settlement to resolve the matter. Both parties can come up with a reasonable method to pay for the damages such as lump sum or structured payment. The agreement must be put into writing as a proof that the case is resolved. However, if one party disagrees with the conditions of agreement, the case can be pursued in court.

Trial - Both parties can assert evidence, make legal defenses, present and cross-examine witnesses, and make final arguments. The court will review the evidence presented, the statement of witnesses, and any expert opinion. The judge will also determine the amount of damages.

Sentencing/ Verdict - The court renders the decision for the case. The judge may award the damages and set the penalties of the defendant.

Appeal - Either of the parties can ask the higher court to review the court decision and assert some legal error.

Collection - The court can have the payment for damages either in lump sum or structured method. In lump sum, the defendant pays the damages in full amount. On the other hand, structured payment allows the defendant to pay in partial amounts.


The Mesriani Law Group has a wide range of legal resources as we work with the best lawyers and litigators in each state across the United States. We offer a unique attorney directory where you can find a lawyer's location and area of practices. For more information contact Mesriani Law Group at 310-826-6300 or visit the main office at 12400 Wilshire Blvd. Suite 810 Los Angeles CA 90025.

Employee benefits under Family and Medical Leave Act (FMLA)

If you have just given birth, and you cannot resume work because of your medical condition or need to take care of your newborn; you may avail of Family and Medical Leave benefits.

The Family and Medical Leave Act (FMLA) allows insured employees to take time off from work to attend to personal medical condition or care for an immediate family member. Employees can avail up to 12 weeks of unpaid leave within a year.

FMLA allows the following conditions:

1. Care for a newborn child
2. Care for a sick immediate family member
3. Adoption of a child
4. Attend to personal medical needs such as therapy, surgery, or treatment

Employers have the responsibility to:

1. Provide unpaid family or medical leave to qualified employees
2. Reinstate the employee after completing the family and medical leave
3. Offer an equivalent job post and wage rate upon the return of employee
4. Cooperate with the employee in processing FMLA benefit claim

FMLA benefits to military

FMLA also extends to those who serve in the military. The National Defense Authorization Act provides FMLA benefits to employees who need to care for a family member who is injured while rendering service in the military.

If the injured military officer or soldier was seriously injured or ill, FMLA benefit can extend up to 26 weeks of unpaid leave for the year.

Eligibility requirements for FMLA benefit leave:

1. Employees who have rendered at least 1,250 hours of work for the employer or an equivalent of 12 months.
2. The employee works for an employer who has at least 50 workers within 75 miles of the facility.

FMLA facts

1. Employees can arrange with the employer to use FMLA benefit on an intermittent basis. It means that the employee can spread the 12 weeks throughout the year. The employee can also ask for accommodation to have adjustment in work schedule or shift.
2. You can still avail of the employer's health insurance while enrolled in FMLA program
3. In California, you can avail of Paid Family Leave (PFL), FMLA, and California Family Rights Act (CFRA) concurrently. These programs allow employees to have up to six weeks of paid leave. The State Disability Insurance Program handles the employee claims.

Make sure that you inform your employer ahead of time on your plan to avail of FMLA benefit. It will help your employer to process the needed requirements and provide you ample time to submit medical certificate and clearance.

If your employer refuses to give FMLA benefits, you can consult with an Los Angeles Employment Lawyer to help you assert your FMLA rights.


The Mesriani Law Group has a wide range of legal resources as we work with the best lawyers and litigators in each state across the United States. We offer a unique attorney directory where you can find a lawyer's location and area of practices. For more information contact Mesriani Law Group at 310-826-6300 or visit the main office at 12400 Wilshire Blvd. Suite 810 Los Angeles CA 90025.

FAQs on Wrongful Discharge

What is wrongful termination or discharge?

A wrongful discharge occurs when an employee gets fired for unlawful reasons. In this case, an employee may be able to recover monetary damages or severance package from his employer.

What makes a discharge wrongful?

Usual reasons behind a wrongful termination include discrimination (based on gender, race, national origin, age, disability, or religion), retaliation for making a workers' compensation claim, employee serving on a jury, non-compliance to an illegal directive of the employer, or as a form of sexual harassment.

Can an at-will employee sue for wrongful termination?

In many states, an employee is automatically considered as “at-will,” or those without a fixed term of employment, which means both parties –whether employer or employee - may end the employment relationship at any time for any reason.

But an at-will employee may still be fired for unlawful reasons and they can still sue for that. For example, employees cannot be terminated if they choose to do protected activities like pregnancy leave, family leave, or military leave.

What courses of action are available to employees who have been wrongfully discharged?

Before even considering legal action, the employee may attempt to negotiate for a severance agreement first. He will receive compensation for that. But there are those employees who may choose not to enter into negotiations for settlement and just go on with a lawsuit. Terminated employees may consult with Los Angeles wrongful discharge attorneys to determine whether a lawsuit is in order or not.

Can an employee who has a wrongful termination case look for a new job?

Employees are required under law to mitigate the damages they experienced by looking for other employment opportunities even while the lawsuit is going on. It does not have to be something that is way beneath the former work; at least something in which the employee is qualified for.

Keep a record of every attempt made to apply for a job, like a newspaper advertisement, resumes sent, telephone calls made, etc. Do not forget to include the date, name of the company, name of the individual contacted, position applied for, and the company's response.

What can an employer do to protect the company from wrongful termination claims?

Sometimes, even when an employee is terminated for all the right reasons, the employee would still attempt to bring a wrongful discharge claim against his former employer. In defense, the employer should find any or all documents about the employee’s performance, like memos and disciplinary actions, especially if he was terminated due to poor performance or adverse behavior. Speaking with an attorney would also help.


The Mesriani Law Group has a wide range of legal resources as we work with the best lawyers and litigators in each state across the United States. We offer a unique attorney directory where you can find a lawyer's location and area of practices. For more information contact Mesriani Law Group at 310-826-6300 or visit the main office at 12400 Wilshire Blvd. Suite 810 Los Angeles CA 90025.

Personal Injury: Liability in Medical Malpractice

In medical malpractice, the error or negligence committed by a medical practitioner is often taken into consideration. Even if most cases are caused by the medical practitioner, other individuals or entities that can also be held liable. Ask an attorney for personal injury legal advice before filing charges against these persons or entities.

Hospitals

Hospitals may either be private or public entities. In both principles of negligence and vicarious liability, a hospital can be held liable for medical malpractice actions.

• Negligence: A medical staff of the hospital should consist of licensed physicians and health care providers. Before hiring someone, the hospital should make reasonable inquiries into an applicant's education, training and licensing. If an incompetent staff injures a patient, the hospital would be liable under the doctrine of “corporate negligence” for negligent supervision or retention. It is also negligence if a hospital fails to investigate the credentials of a physician before giving him privileges at the hospital, or letting him treat patients.

Shortage of nurses can also be blamed to the hospital. It is their responsibility to ensure that there is sufficient number of nurses on duty to maintain quality patient care. Failure to follow the orders of a patient's private attending physician is also considered negligence. If the hospital finds out that a private physician's treatment plan is contradicted but fails to make reasonable inquiry about it to the physician, the hospital could also be found liable.

Hospitals may be held liable for not protecting patients from harm, inadequate clinical tests, not keeping medical records, and not properly admitting and discharging patients. Federal and state statutes also prohibit them from refusing to treat or admit people based on race, color, religion or national origin, or on inability to pay for treatment.

• Vicarious liability: This means that a party is responsible not for its own negligence, but for the negligence of another. In this case, the hospital may be liable under the legal doctrine “respondeat superior” if an employee acting within the scope of employment was negligent. This also applies to acts or omissions of contractors who operate emergency rooms and outpatient facilities. Respondeat superior may apply to physicians who are also independent contractors.

Pharmaceutical Companies

Pharmaceutical companies may also be held liable for injuries that were acquired due to the intake of their manufactured drug, especially if they fail to warn physicians of its potential dangers. It is their duty to research about the risks before sending it out to the market to ensure the safety of consumers.

However, companies cannot be held liable if they were able to inform the physician about the drug’s risks because their duty is to the physicians. Physicians, on the other hand, are liable if they fail to inform patients about the risks or if they gave the inappropriate prescription to the patient.


The Mesriani Law Group has a wide range of legal resources as we work with the best lawyers and litigators in each state across the United States. We offer a unique attorney directory where you can find a lawyer's location and area of practices. For more information contact Mesriani Law Group at 310-826-6300 or visit the main office at 12400 Wilshire Blvd. Suite 810 Los Angeles CA 90025.

Driver Fault in Pedestrian Accident

According to statistics by the National Highway Traffic Safety Administration, more than 60,000 pedestrians were injured in traffic accidents in 2006. Some of these injuries even lead to death. To add insult to injury, most of these pedestrian accidents that result to death occur between 3 pm to 4 pm, around the time when a lot of children have just got out of school.

A pedestrian vehicle accident is not a rare occurrence. In fact, two in every ten road accidents involve pedestrians. However, what makes it so much a cause for concern is that regardless of whether a vehicle is slow or fast, any person may suffer from serious injuries when struck by a running vehicle. These injuries may include the following:

• Broken or fractured bones
• Permanent or temporary disability/ injury
• Head injuries
• Brain injuries and damage
• Scars, mutilation, or disfigurement
• Mental distress and damage

In this kind of accident, fault is often determined through negligence. Either or both the driver and pedestrian may be liable for the accident if their actions were considered negligent. But in majority of cases, the accident is attributed to the driver’s negligence. This includes negligence such as:

• Not paying attention to the road or being pre-occupied
• Speeding and failure to adhere to speed limits set on a particular road
• Not stopping at a pedestrian crossing and in other pedestrian right of way areas
• Having an alcohol count that is over the legal limit or being under the influence of drugs

An important thing that drivers should know is what to do after being involved a pedestrian accident. By simply remaining calm and cooperating with authorities, a driver can minimize his liability.

• Secure the injured victim first. Make sure the victim is safe from further harm from other motorists. Do not administer any medical treatment that is beyond what is required on your own as it may further endanger the pedestrian.
• Get medical help for the injured and contact authorities. File a report regarding the accident from the facts that you remember.
• Exchange contact information with the other people involved.
• When talking to the pedestrian or any other people, avoid apologizing as this may indicate admission of fault. By doing so, the driver exposes himself to a personal injury lawsuit, especially if he speaks directly to the pedestrian’s attorney or insurance company.
• Seek a lawyer’s advice. If the driver is likely to face criminal charges, contact a criminal defense attorney as soon as possible. A lawyer can also help if the pedestrian decides to file for recovery of damages.

The Mesriani Law Group has a wide range of legal resources as we work with the best lawyers and litigators in each state across the United States. We offer a unique attorney directory where you can find a lawyer's location and area of practices. For more information contact Mesriani Law Group at 310-826-6300 or visit the main office at 12400 Wilshire Blvd. Suite 810 Los Angeles CA 90025.