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A NEWSLETTER FROM THE LAW OFFICESOF MARTIN & JONES

If you have legal questions, call us at 800-662-1234.

• Personal Injury• Wrongful Death• Medical Malpractice• Workers’ Compensation• Social Security Disability• Nursing Home Negligence• Inadequate Security• Insurance Bad Faith• Environmental

Contamination• Assisted Living Negligence• Premises Liability• Consumer Class Action• Product Liability• Pharmaceutical Claims• Asbestos-Related Diseases• Vehicle Accidents• Construction Site

Negligence

WE HELP PEOPLE WITH THEFOLLOWING CLAIMS:

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notesMJINSIDE THIS ISSUE:

- What Is ContributoryNegligence?

- Finding a Good Nursing Home- Don’t Let Insurance

Companies Limit Your Rights

Is Your Work InjuryCompensable?By Tamara Nance

Many employees assume that becausetheir injury happened at work, it isautomatically a compensable workers’compensation claim. Unfortunately,that is not the case. With some limitedexceptions, your work-related injury willnot be compensable unless it occursunder circumstances that would beconsidered an “accident” under theWorkers’ Compensation Act.

An accident has been defined as an in-terruption of the regular work routineand the introduction of unusual circum-stances likely to result in injury. Aninjury that occurs while the employeeis engaged in his normal work routineunder normal working conditions is notcompensable. There must be someunexpected or unusual event that causesthe injury. The best example of aninjury by accident is a slip, trip or fall.However, any injury that occurs whensomething unusual or unexpected occursis compensable, even if it does notinvolve something as dramatic as a fall.

Oftentimes following an injury at work,the insurance adjuster will call the em-ployee on the phone and take a recordedstatement, asking the employee to de-scribe in detail how the injury occurred.The insurance adjuster often asks theemployee if he was doing somethingunusual or out of the ordinary to causethe injury. Many employees deny thatanything unusual happened, thinkingthat if they did anything out of theordinary, their claim will be denied. Infact, the exact opposite is true. If theemployee does not describe for theadjuster circumstances that tend to showthat something unusual and unforeseenhappened to cause the injury, theemployee’s claim will be denied. If theemployee later tries to amend theirdescription of the injury to describe anaccident, the insurance company, andoftentimes the North Carolina Indus-trial Commission, which regulates

workers’ compensation claims, willassume that the employee is now mak-ing things up in order to collect benefits.How the employee describes an injuryin his recorded statement can make orbreak his case.

Hernias and back injuries are the onlyexceptions to this general rule. Thoseinjuries will be found to be compens-able even if there was not an accident, ifthe employee can show that the injurywas the result of what is called a “spe-cific traumatic incident.” A specifictraumatic incident is an event, or seriesof events that occur contemporaneouslyand at a cognizable time. Therefore, forback injuries and hernias, the employeecan be performing his regular job andstill sustain a compensable injury, if hecan point to a specific event that hap-pened at a time certain to cause hisinjury. For example, if the employee isloading a truck, and he bends over tolift a box and feels a pop in his back, theinjury is compensable. An injury to thearm occurring under the same circum-stances would not be compensable,because the employee was performinghis usual and customary job duties innormal fashion.

Occupational diseases, which are inju-ries or illnesses that develop graduallyover time due to repetitive motionor exposure to harmful substancesat work, are governed by a entirelydifferent set of rules. For all otherinjuries, it is important to remem-ber what is necessary to prove yourentitlement to workers’ compen-sation benefits.

Contributory negligence is old law, aholdover from our years as a British colony.Contributory negligence states that if youcontribute to your injuries in anyway, you areentitled to no compensation. North Carolinais one of only four states that still adheresto this old law. The other forty-six stateshave done away with contributorynegligence – for good reasons.

Contributory negligence is unfair. You do nothear about contributory negligence becauseinsurance companies routinely fight for itssurvival. The remaining forty-six states havesome form of comparative negligence. Incomparative negligence, the jury determinesthe amount of fault. For example, if a jurydetermines that you are entitled to $10,000to compensate you for your injuries but alsofinds you 10 percent at fault, you wouldreceive only $9,000. In North Carolina, inthat same scenario, you would be entitledto nothing.

Contributory negligence remains the law inNorth Carolina because insurance companiesand big businesses spend millions of dollarslobbying the legislature. There is no one tofight these special interests. No one sees theneed to challenge the law until they arealready subject to its harsh consequences.For example, you are stopped at a stoplightwhen someone rear-ends you, destroyingyour car and causing you damages. Theinsurance company’s lawyer tells the jurythat you should have looked in your rearviewmirror, seen that this car was coming, andpulled off to the side. You state that youdidn’t have time for such a maneuver. Twelvejurors hear the story and determine it ispossible you could have pulled off to the sideand avoided this collision. Sure, thedefendant is mostly at fault, in fact thedefendant is 99.9 percent at fault, but thejury decides that it cannot say that you couldnot have done something, did not “in any waycontribute” to what happened. Therefore youare entitled to no compensation. This resultoccurs more often than not in North Carolina.

Because North Carolina law favors theinsurance companies and big businesses, donot give a statement or speak with anyoneother than law enforcement officers andmedical providers if you have been injured.You should contact a lawyer immediately. Inmany instances a lawyer will tell you howto handle your claim on your own.

Finding a GoodNursing HomeBy Hoyt Tessener

A recent Wall Street Journal headline stated“U.S. Nursing Homes Quietly KillingThousands – Report.” As we all approachan older age, it’s natural for us to considerthe consequences of our parents and evenourselves spending time in a nursing home.In North Carolina, the population of those65 and older increased by 20 percent from1990 to 2000.

A nursing home provides nursing or con-valescent care for three or more persons.The federal government regulates nursinghomes if they receive any money fromMedicare. Nursing homes are also regu-lated by the State of North Carolina if theyreceive Medicaid benefits. The NorthCarolina Department of Health andHuman Services, Division of FacilityServices regulates nursing homes. It alsoregulates prisons.

The investigation for the Wall StreetJournal article found that 90 percent ofthe nursing homes investigated do nothave enough staff members to providequality care to the residents. NorthCarolina commissioned an investigationinto why so many licensed Certified NurseAssistants (CNA) do not work in thenursing home industry. The median wagefor Certified Nurse Assistants in 1998 was$11,358. Only 20 percent of thoseindividuals had wages from all sourcesexceeding $18,360. CNAs perform strenu-ous, personal, and difficult jobs, yet theyare paid below the poverty level. It is easyto see why there is inadequate staff.

The nursing home industry responds tothese reports that inadequate reimburse-ment rates force compensation ofminimum wages. The industry conducts acoast-to-coast campaign complete withhigh level lobbying and doomsday adver-tising, even though the records indicatethat the nursing home industry is doingquite well. Whenever I hear how difficultit is to operate a nursing home or a rest home,I ask, "Why do they stay in business?"

At our law firm, we receive calls everydayfrom family members whose loved onesare neglected, injured and even abused innursing homes. We have seen bedsoresgrow to the size of a softball. We see unat-tended residents who suffer from fracturedlimbs, suffocation and even rape. Thereare good homes, but you mustinvestigate.

A NEWSLETTER FROM THE LA

MJWhat is ContributoryNegligence and WhyDo We Have It?

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Finding a good home requires somehomework before you are in dire need. Wehear from family members after somethingbad happens. We always ask why a particu-lar facility was chosen. Often it is becausea loved one is in the hospital facing imme-diate discharge, forcing the family to finda facility quickly.

Before you are forced into a decision,investigate the homes in your area. Theinternet is an excellent starting point.Prepare a short list to investigate when andif the time arises. Once you have a list:(1) make an unexpected visit to the facili-ties. The general cleanliness and smell willtell you a lot about how the facility is op-erated; (2) speak with some of the residentsand the residents’ families; (3) speak withthe Certified Nurse Assistants; (4) ask theadministrators who provides the ancillaryservices, such as the prescription drug com-pany, the hairdresser, the laundry service,the cleaning service and any other suchservices. Many times the owners of the fa-cility own all of these separate companiesas a way to shift (and hide) profitability.

If a loved one is the subject of abuse orneglect, what should you do?

1.Remove that person from thefacility immediately.

2.Photograph the facility and theinjuries. Be certain to photographany bedsores in particular.

3.Prepare a chronology beginningwith the date your loved one wentinto the facility and why. Be asspecific as you can as to time anddates and include the names ofanyone involved in the care of yourfamily member.

4.Contact the Division of FacilityServices Hotline or a law firmexperienced in handling nursinghome abuse cases.

Getting older is difficult enough withouthaving to think about spending your lastdays in a nursing home. Many facilities doa wonderful job. Our experience suggeststhat strong management in the facilitymakes the difference. Make sure youinvestigate the facilities and that you havean idea what is best for you or your lovedone before the immediate need arises.

@AW OFFICES OF MARTIN & JONES

notesJ Editorial Commentfrom Tom Barwick

You are probably aware of the effortsunderway to limit the rights of individualssuch as yourself and your loved ones frombeing fully compensated for your personalinjuries. Although the debate has focusedon medical malpractice, the proposedlimitations are extensive and seek toredirect the right to recover in many, manyother situations where people are injuredor lose loved ones as a result of someone’scarelessness.

This legislation is unfair. It takes away therights of jurors to decide how an individualshould be compensated. It limits recoveries.Its purpose is to discourage people likeyourself from seeking help through ourjudicial system for personal injuries andloss of loved ones. It creates a privilegeclass of healthcare providers andmanufacturers and shifts the burden for thelosses caused by personal injuries anddeath from malpractice and manufacturingto the victims. The only real winners areinsurance companies who will continue tocharge high premiums while being thebeneficiary of caps. Tort reform might soundlike a good idea until you’re the victim ofsomeone else’s negligence. And you cannotpredict to whom or when that will occur.

You can do something. Join in support ofthe North Carolina Coalition for Patients’Rights. Martin & Jones recommends thisorganization to you as an organization thatwill work for you. The Coalition is workinghard to protect the rights of injured peopleand survivors of lost loved ones, to ensurecontinued access to justice, and to maintainthe ability of all North Carolinians to seekfull and fair compensation for injuries andlosses from a jury of our peers. They arelobbying your legislature. They are airinginformative television ads. They areparticipating in debates. Most importantly,they are organizing victims whose rights arein jeopardy to let their voices be heard inour Congress and Legislature. It is easy. Youcan join on-line at www.nc-cpr.org. Or,you may also join by writing or calling theNorth Carolina Coalition for Patients’ Rightswith the information provided below:

Marion M. Smith, Coalition CoordinatorNorth Carolina Coalition for Patients’ Rights1049 Colleton Way, New Bern, NC 28562.(252) 636-7466. Or email Ms. Smith atmarionsmith@earthlink.org

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If you wish, call our office and let us answer any questions you have about how you can join thisorganization in the fight against unfair tort reform legislation. Your efforts will affect you and anyonewho will suffer unnecessary injuries and losses of loved ones in the future.

TOM BARWICK PROTECTS THE RIGHTS OF MEDICALLYINJURED VICTIMS

Medical negligence left a young lady with the use of herright arm, nothing else. As she laid motionless, bedsores boreto her bones. With local care failing to cure her, she would havedied if something were not done. Tom Barwickarranged for her to be seen by one of the country’s leadingexperts in rehabilitation. Under his watchful care, thebedsores healed. Thanks to Tom’s efforts, she now has thechance for a long life to enjoy with her two young sons.

A large busy hospital turns off vital monitors to adesperately ill young woman because the noise bothers thenurses assigned to watch those very monitors. As a result, ayoung mother dies. Tom Barwick discovered the truth andmade the hospital provide her young son with the financialmeans for a successful future.

Robbers brutally attack a 20-year-old with a two-by-four.He is rushed to the hospital to see the only neurosurgeon. Theneurosurgeon callously abandons him. His father tries totransfer his son to another hospital but the neurosurgeon refusesto release him. Finally, a nurse calls the hospital administratorand the young man is transferred. It is too late. The delaycaused the young man’s death. Tom Barwick tracked downevidence uncovering secrets sending the message that a doctorcannot abandon a patient without consequences.

Nothing can replace a lost loved one, especially the loss of achild. Parents of a young child who died when she wasadmitted to the hospital without being seen by her pediatricianturned to us. Tom Barwick stood with the parents until thenegligent parties admitted that their inattention resulted in aneedless loss of a precious life.

410 GLENWOOD AVE.SUITE 200RALEIGH, NC 27603919-821-0005

Thomas E. BarwickKatherine N. BricioSean A.B. ColeColeman M. CowanJulia Ellen DixonScott Bartley GoodsonH. Forest Horne, Jr.John Alan JonesGregory M. MartinTamara R. NanceG. Christopher OlsonE. Spencer ParrisJ. Michael RileyHoyt G. TessenerElizabeth C. Todd

In AtlantaClint W. SittonSam L. Starks

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Nursing Home Fails To ProvideStandard of CareAs the century turned, our elderly client was a patient at a nursing home inSanford, N.C. An insulin-dependent diabetic, our client’s blood sugar andinsulin levels were to be checked several times each day to ensure that she didnot become hypoglycemic. Our client was suffering from dementia and sev-eral other conditions that were severely impacting her quality of life. She wasbed-ridden and totally dependent on the nursing home staff to care for her.

On December 31, 1999, our client’s blood sugar dropped to a dangerouslylow level, fluctuating throughout the night. No doctor or ambulance wascalled, although the nurse on duty knew that she was supposed to contact adoctor when our client’s blood sugar dropped to such a low level. Our client’sdaughter lived five minutes away from the facility and visited her mother everyday. Although she was often called for such relatively minor injuries such as adiscovered bruise or when her mother did not eat all of her dinner, no onecalled our client’s daughter that New Year’s Eve to report that her mother wasso gravely ill. Our client’s daughter never got the chance to say good-bye.

We took the video deposition of the nurse on duty that night, and asked herrepeatedly why she chose not to call a doctor, an ambulance or her charge’sdaughter. She admitted that her failure to do so was a violation of the standardof care required for all nursing patients. Through court-ordered negotiations,the nursing home was held responsible.

A NEWSLETTER FROM THE LAW OFFICES OF MARTIN & JONES

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If you have legal questions,call us at: 800-662-1234

These materials have been prepared by Martin & Jones for informationalpurposes only and are not to be considered legal advice.