Common Legal Questions

Medical Malpractice and Nursing Home Negligence - Common Questions

What is medical malpractice?

Medical Malpractice results when an individual or organization provides medical care that is either negligent or otherwise deviates from the standard of care applicable to that procedure.

What is involved in a medical malpractice claim?

It's a three-step process. The first step is a comprehensive review of your medical records. The purpose of this step is to determine whether an actionable medical malpractice claim exists. I must review the records because usually whether a valid claim exists cannot be determined solely from the initial client consult.

If I determine a Medical Malpractice Claim exists, the second step is to determine whether the potential recovery justifies the costs involved in initiating litigation.

Finally, if I determine that that there is a Medical Malpractice Claim, and that we agree it is reasonable to bring the claim, and then I will begin contacting Medical Experts who will testify on our behalf. Then begins the process of litigation.

How much does a medical malpractice claim cost?

Each case varies based on their unique facts. The most expensive aspect of a medical malpractice claim is the cost of hiring medical expert witnesses to testify on our behalf. They usually charge an hourly rate. It isn't uncommon for an expert's total bill to be between $5,000.00 and $15,000.00. It is common practice in the legal profession to charge a contingency fee for medical malpractice claims.

What is a contingency fee?

A contingency fee is a fee that is dependent on the outcome of litigation. Under a contingency fee agreement, if there is no recovery, either through settlement or trial, then the client does not owe the attorney a fee. However, if there is a recovery then the fee owed to the lawyer by the client is a percentage of the recovery. It is important to note that regardless of the outcome of litigation, the client usually remains responsible for the costs involved in litigation.

What is the timeframe for a medical malpractice claim?

Each case varies based on their unique facts. However, a claim is generally resolved within sixteen to thirty-two months of filing the claim.

How long do I have to file a medical malpractice claim?

The time limit varies from state to state. In Virginia, a claimant generally has two years from the date of the medical negligence to file a claim. This time can be shorter or longer based on the unique facts of each case. Because this rule is strict, and the consequences substantial, you should promptly consult with an attorney.

Will we have to go to trial?

There is no way to predict which cases will settle and which will go to trial. However, I prepare every case with the intensity and expectation that we will proceed to and prevail at trial.

Should I release my medical records to an opposing party's insurance adjuster?

Generally, no, not before consulting with a qualified attorney.

How does negligence at a nursing home differ from medical malpractice?

Medical malpractice claims relate specifically to medical care, whether it is diagnoses or treatment. On the other hand, nursing home negligence results from a nursing home deviating from the standard of care the law requires in the treatment of your loves ones while at the nursing home. Nursing home negligence claims frequently arise through medication errors, dehydration, malnutrition, the development of bed sores, and occasionally even from physical abuse by the nursing home staff.

Why do clients sometimes have to pay part of the award to Medicare and/or Medicaid?

Medicaid and Medicare are statutorily defined as "secondary payers." As such, under federal and state law they are generally entitled to reimbursement for certain medical expenses paid on behalf of the recipient. Often they will pay a portion of a medical expense without notifying the recipient. For this reason Medicare and Medicaid often try to attach a lien on judgment awards. The Simmons Law Firm will work diligently to reduce the amount of the reimbursement, but generally we cannot avoid repayment in part.

Personal Injury - Common Questions

How do I know if I have a personal injury case?

Generally you must have suffered an injury to your person or property and that injury must have been the result of someone else's negligence or intentional act.

What is negligence?

Negligence is a legal term of art. In a legal context when someone has been negligent that means several things: The defendant failed to provide reasonable care under the circumstances. The defendant owed a duty of reasonable care to the plaintiff, and he or she breached that duty. The injury suffered by the plaintiff was the result of the defendant's breach of the duty. The defendant should have reasonably known based on the circumstances that the injury was a foreseeable result of his conduct, and finally there must be damages.

What should I do if I am in an automobile accident?

First seek all necessary medical treatment. Cooperate with the police at the scene, but do not admit fault. You should explain generally what happened.

What is a product liability claim?

A products liability claim is a personal injury claim against a manufacturer or distributor of a product that was sold in an unreasonably dangerous condition to the user. As a consumer, a product that you have purchased should not harm you. If you have been harmed through the ordinary use of product, you should promptly consult a qualified personal injury attorney.

Criminal Defense - Common Questions

How do I invoke my Miranda rights?

The right to remain silent and the right to an attorney are present for an accused at arrest. The rights must be invoked clearly and unequivocally and they should be invoked.

How do I know if I should contest a DUI, DWI, or speeding ticket?

Promptly consult a qualified criminal defense attorney. A qualified attorney may be able to work with the Commonwealth Attorney's office to reduce the charges or even have the charges dropped altogether. This will be my aim. I will personally ensure that the police followed every constitutional requirement and safeguard the accused is entitled to. I will carefully examine the traffic stop, determine whether the police had probable cause to justify the stop, and review all paperwork and documentation to ensure the accuracy of any police instrument used.

What if I cannot afford a defense attorney?

Generally, the accused has a right to have an attorney appointed to them for free.

Business Law - Common Questions

Will you review my contract and determine whether it is enforceable?

The Simmons Law Firm will review your contract and provide you with analysis of current Virginia law and discuss with you advantageous strategies and tactics available in litigation, but I cannot guarantee how a court will rule on any individual case.

When will a former employer pay my attorney's fees and costs of litigation?

Generally, your former employer is not required to reimburse you for attorney's fees and litigation costs unless the contract explicitly states so in its terms.

Divorce and Family Law - Common Questions

How long does an uncontested Virginia “no-fault” divorce take?

Once no-fault grounds have been established for divorce, then a divorce may be awarded as quickly as four to six weeks after filing the divorce.

How long does a contested Virginia Divorce take?

Each case is unique, but depending on the cooperation of the parties involved, contested divorces usually take eight to twenty months from the date of filing for divorce to the conclusion of trial.

What is a property settlement agreement?

A property settlement agreement is essentially a contract between the divorcing parties distributing the property. This is a very serious and complicated part of the divorce process. It should not be attempted without representation of an attorney, nor should you expect a "fill-in-the-blank" form from the Internet to sufficiently accomplish this task. Furthermore, an unrepresented spouse should not sign a property settlement agreement drafted by the other spouse without first consulting with a qualified attorney.

As a marriage continues, marital property accumulates. At a divorce trial, a court must generally distribute the marital property based on equitable factors. However, occasionally couples will seek an attorney to draft a property settlement agreement dictating what property should go to whom.

What information does an attorney need to represent me in my divorce?

Divorce litigation requires extensive and thorough research into you and your spouse's financial and property interests. This is to determine and categorize marital assets. Unfortunately, divorce claims also require extensive information regarding the personal life of you and your spouse. Information such as, the circumstances contributing to the end of the marriage, the personal habits of you and your spouse, any patterns of abuse and much more are all relevant factors I must be aware of to successfully achieve your goals.

What is divorce mediation?

Divorce mediation is a process where a trained third-party neutral helps two parties reach a mutually agreeable resolution of the issues. At the conclusion of mediation, a mediation agreement is written and signed by the parties, much like a written contract. It would be wise to have an attorney review such a prepared agreement before signing it.

Areas of Practice

The Simmons Law Firm specializes in elder and family law: