We take many calls concerning medical negligence cases, and we frequently get inquiries from people who claim their doctor delayed in diagnosing their cancer. These cases can be difficult to evaluate for the following reasons:

1) Proximate Cause – Did the delay cause any damage?

2) Burden of Proof – Is there actual proof the diagnosis was missed, such as a radiology study that required follow up?

3) Differing types of cancer have different cure rates, growth rates, etc.

Legally, the biggest issue in a delayed diagnosis cancer case is lost chance of survival. Let’s take a look at some case examples to better understand this concept.

I often receive phone calls about liability insurance carriers not wanting to pay for all of the debt associated with a motor vehicle that has been totaled.  According to Arkansas’s jury instructions, the liability insurance carrier must only pay the difference in fair market value immediately before and immediately after the wreck.  See AMI 2210.  Fair market value is defined as “the price the [motor vehicle] would bring on the open market in a sale between a seller who is willing to sell and a buyer who is willing and able to buy after a reasonable opportunity for negotiations.”  See AMI 2221.  The amount the vehicle owner owes is irrelevant to the market value of the vehicle.

If your vehicle is totaled, you owe $10,000 on the vehicle, and the fair market value of the vehicle is $8,000, then you are upside down $2,000.  Stated differently, there is a gap of $2,000.  This is where good gap insurance coverage comes in handy.  A well written gap insurance policy will cover the $2,000 you are upside down on the vehicle.  As with most types of insurance coverage, there are good policies and bad policies.  When purchasing gap insurance, you must read the fine print to determine whether you are paying for a policy that covers the outstanding debt on the vehicle or only the fair market value.  As discussed in the first paragraph, the liability insurance carrier is required to pay the fair market value of the vehicle so gap insurance that only covers the fair market value is of limited benefit to the consumer.  For more information on how gap insurance works and the type of policy you need, check out the following link from the Arkansas Attorney General’s Office: https://arkansasag.gov/programs/consumer-protection/my-vehicle/gap-insurance

A contingency fee is a fee charged by an attorney to a client contingent upon the outcome of the matter.  Contingent fees in personal injury and wrongful death cases are allowed in Arkansas if the agreement is in writing and states the method for computing the fee, including the percentage of the fee and how costs will be handled.  See Arkansas Rules of Professional Conduct 1.5(c).

McMath Woods has served injured Arkansans since 1953.  Over the past sixty-three years, we’ve handled many personal injury and wrongful death cases on a contingent basis.  If you or a loved one has been injured and you need to hire an Arkansas lawyer on a contingency fee, please feel free to give us a call at McMath Woods.  

Recently there has been much talk and “traffic” about hours of service regulations for 18 Wheelers.

Hours of service (HOS) regulations define how much a driver can drive during certain periods of time and apply to commercial motor vehicles (CMVs).

An important first question is what qualifies as a CMV for purposes of the Federal Motor Carrier Safety Regulations Hour of Service Rules. 18 Wheelers typically do of course, but other vehicles qualify also.

States have vastly different law concerning wrongful death cases–cases where it is alleged that certain acts caused death. Arkansas wrongful death laws allow for the recovery of what is termed “loss of life” damages by the Estate of the person killed, commonly referred to as the decedent. Loss of Life damages have been defined by the Arkansas Supreme Court as the “value that the decedent would have placed on his or her own life.” Durham v. Mayberry, 356 Ark. 481, 156 S.W.3d 242 (2004). Other forms of damages are also allowed for the Estate, including any conscious pain and suffering experienced prior to death. Wrongful death beneficiaries of the decedent under Arkansas law can include any living children, spouse, siblings, mother and father. Each has a separate claim for mental anguish. Anyone who believes a loved one or family member has a wrongful death claim should consult an attorney. Folks with venue choices should at least consider Arkansas law before filing in other states.

The U.S. Consumer Product Safety Commission (CPSC) announced today that Aqua-Leisure Industries, Inc., of Avon, Mass., has agreed to pay a civil penalty of $650,000. The penalty agreement has been accepted provisionally by a 4-0 vote of the Commission.

The settlement resolves CPSC staff allegations that Aqua-Leisure knowingly failed to report a defect involving its inflatable baby boats to CPSC immediately, as required by federal law. The leg strap in the seat of baby boats manufactured from August 2002 to July 2008 can tear, causing children to unexpectedly fall into or under the water, posing a risk of drowning.

In recognition of Fire Prevention Week, the U.S. Consumer Product Safety Commission (CPSC) and the U.S. Fire Administration (USFA) are providing new statistics on fires in American homes and urging consumers to install smoke alarms in their homes and check to make sure all smoke alarms are working properly. It is also vitally important to develop and practice a family fire escape plan.

In a report released today, CPSC estimates there was an average of 366,700 unintentional residential fires, 2,310 deaths, 12,550 injuries and more than $7 billion in property damage each year attended by fire service between 2008 and 2010.

At its meeting on August 23, 2011, the Arkansas Oil and Gas Commission (AOGC) approved a new rule that will limit the amount of noise a natural-gas compressor station can emit. The new rule will limit the noise levels of a non-wellhead natural gas compressor to 55 decibels, as measured from the exterior of the nearest pre-existing “noise-sensitive area.” A noise-sensitive area is defined as a “private residence … school, hospital, church, nursing home or other building regularly used for overnight accommodations.” Compressor stations re-pressurize natural gas to keep it flowing through a pipeline. They are 40 to 100 miles apart and typically run 24 hours a day.

A client of McMath Woods P.A. was awarded a 2.5 million dollar verdict by a jury in federal court in Arkansas on June 14, 2011 against Lase Med Inc. and Antonella Carpenter. Most importantly, the jury found that Antonella Carpenter and Lase Med Inc. committed fraud and deceptive trade practices. Antonella Carpenter and Lase Med, Inc. claim they can cure breast cancer in patients. Antonella Carpenter is not a medical doctor, and her claims of having a legitimate doctorate are questionable. An expert oncologist testified at trial that the Lase Med treatment given by Antonella Carpenter was of no value to breast cancer patients. The collectability of the judgment is in question, but the jury verdict lets women seeking breast cancer treatment know that Lase Med and Antonella Carpenter were found to have defrauded Therese Westphal and that their advertising and representations concerning the benefits of their treatment was deceptive. Will Bond was the lead attorney on the case for McMath Woods. David Horn was the initial attorney for Therese Westphal and he helped evaluate and prepare the case for litigation.