Legal Blog

Poor care at nursing homes can lead to serious injury and death.  Nursing home negligence is a serious problem in Nebraska.  Nursing homes are designed for elderly residents to have a safe, clean environment to live and rehabilitate their injures.

Nursing home care is expensive.  Nursing home’s receive thousands of dollars per month in payments from either the government, through Medicare, or the resident through the depletion of their life savings.  An average nursing home with 80 beds, charging a base price of $4,000.00 per month for each resident receives at least $320,000.00 a month or $3.84 million a year in compensation.

Nursing homes are a big business.  They should be comfortable, clean and safe.

Our Nebraska nursing homes provide some of the best care for our aging population in the entire United States.  Unfortunately, not all of our nursing homes are owned and operated by Nebraskans.

Many of our state’s nursing homes are owned by large, national, for-profit, corporations.  These corporations can be motivated to place their international corporate profits over quality care.  The results can be devastating.

A new study by the University of California at San Francisco proves what our Hauptman O’Brien lawyers already know, putting corporate profits over quality care results in injured residents and devastate families.  Please read a summary of this important study here.

If you believe you or a loved one has been the victim of corporate nursing home abuse or nursing home neglect, contact our firm to have your questions answered.

Social networking sites, such as Facebook, MySpace and Twitter, have potential to damage your claim for a personal injury. Insurance companies and claim agents will use Google, Yahoo! and other search engines to access these sites and find information they can use against you, including posts or pictures about how the accident happened, who caused it, who was at fault and its effects—even posts that have nothing to do with the accident.

We strongly recommend taking down all individual social networking sites while your claim is being pursued. But, if you choose not to, you should at least take the following precautions:

• Immediately make your profile “private,” and set all privacy settings to the highest level.
• DO NOT discuss your accident, injuries or treatment, including any prescribed medication, on these sites.
• DO NOT discuss activities you’ve engaged in, physical exertion, abilities and limitations, or any other information that may bear on what you can and cannot do because of your injuries—even in a way unrelated to the lawsuit.
• Remove all photographs and videos of you taken since your injury, and refrain from posting until your claim has been resolved.
• Be sure you know everybody who is your “friend.” DO NOT accept friend requests from people you do not personally know.
• Review your friend list and block anyone you are not 100 percent confident you know and trust. The Defendant could pose as a friend to access your personal page or to place or obtain incriminating evidence that can negatively affect your lawsuit.

If you have any questions or need further information, please contact us.

The National Safety Council recently released an article about the safety of children riding in vehicles. Over the years, many laws and regulations have been put in place. For example, the Center for Decease Control states that children 12 years of age and younger should always ride in the back seat, and should never be seated in front of an airbag. And the National Highway Traffic Safety Administration insists that children should remain in a booster until the vehicle’s seat belts fit properly—when the lap belt lays across the upper thighs and the shoulder belt fits across the chest. A good way to decide whether or not a child is ready to ride without a booster is to follow this five-step guide from www.car-seat.org:

The Five-Step Test
1)    Does the child sit all the way back against the auto seat?
2)    Do the child’s knees bend comfortably at the edge of the auto seat?
3)    Is the lap belt touching the top of the thighs, not the tummy?
4)    Is the shoulder belt centered on the shoulder and chest?
5)    Can the child stay seated like this for the whole trip?

To read more details on regulations, child safety laws, and for additional information, such as when to replace a booster seat, read the entire NSC article here.

The Greater Omaha Chapter of the National Safety Council is conducting child safety seat check up events throughout the first quarter of 2011. During these events, individuals will receive assistance from nationally certified child passenger safety technicians while learning how to correctly install and use their child’s safety seat or booster seat.

These events will take place:

January 22 – 9:00 a.m. to 12:30 p.m.
Great Plains Auto Body, 14540 Grover St. – 402-334-7100

February 26 – 9:00 a.m. to 12:30 p.m.
Rusty Eck Ford, 9110 S. 145th St. – 402-298-7356

March 19 – 9:00 a.m. to 12:30 p.m.
Boys Town National Research Hospital West Campus, 14040 Hospital Road – 402-778-6800

The National Safety Council (NSC) has recently released an article about distracted driving and ongoing efforts to reduce it, such as:

• Motor Vehicle Safety Laws
  Motor vehicle safety laws have saved 12,713 lives in 2009. The National Highway Traffic Safety Association has several projects underway to reduce distracted driving. These projects are outlined in the agency’s Driver Distraction Program.
• Semitruck Crash-warning Systems
  A technology designed to alert commercial truck drivers to threats—related to forward collision, lane departure and lane-change crashes—has been tested and proven to increase driver safety.

To read the entire NSC article, click here.

With over 1.5 million elderly adults in nursing home care throughout the U.S., abuse and neglect have become a serious issue for many families. Neglect and abuse can take many forms including assault, bedsores, unreasonable physical restraint, sexual assault, and the list goes on. The Official U.S. Government Site for Medicare has set forth guidelines for choosing proper nursing home care which have been greatly expanded upon below. When choosing care for a family member, you want to feel confident and secure with your decision. If you’re considering placing a loved one in nursing home care please keep the following tips in mind:

• Tip 1: Find Nursing Homes in your Area Whenever Possible
  The Internet is an excellent tool and should be utilized – start by searching the city or ZIP code where you’d like the facility to be located. While it can be hard to relocate those in need of medical care, it’s often better to choose a facility close to you and your family. If you go that route, you’ll have the ability to inspect the nursing home firsthand and make visits often in order to ensure that your loved one is being taken care of properly.
• Tip 2: Compare the Quality of the Nursing Homes you’re Considering
  Using the Government’s Five-Star Quality Ratings, which were created to help consumers, their families, and caregivers compare nursing homes more easily, you can identify areas in which you may want to ask questions such as: health inspection results, nursing home staff data, quality measures, and fire safety inspection results. Often times you may not know the “right” kinds of questions to ask in order to determine quality, these are key areas to pay specific attention to.
• Tip 3: Visit the Nursing Homes you’re Considering
  Whether you’re looking for a nursing home in your area or where your family member lives, you should definitely make the effort to visit the nursing homes you’re considering beforehand. The are several resources online such as the Nursing Home Checklist on the Medicare website that can help you to better evaluate each nursing home. Doing your research before you commit to any particular medical care can have lasting effects.
• Tip 4: Choose the Nursing Home that Best meets your Needs
  Whether it comes down to the medical staff, location, price, or any other criteria, talk to your doctor or other healthcare practitioner, your family, friends, and others about your nursing home choices. Additionally, make sure you utilize online resources such as consumer reports available to you to help aid in selecting a credible nursing home.

If you do your research and follow the tips above, you should be able to choose a nursing home that provides a high level of quality medical care. However, that is not always the case and neglect and abuse can occur. Nursing homes that permit instances of neglect or abuse should be held responsible. If your family member is a victim, contact an attorney. Many law firms will evaluate your case free of charge and provide the legal advice and expertise needed to help fight for your loved one.

Personal injury can occur in any situation that involves injury or death due to the carelessness or negligence of persons or organizations. Some common types of personal injury include, but are not limited to: animal attacks, car, truck or motorcycle accidents, job related injuries, and faulty product injuries. If you or a family member has been subject to a personal injury, there are many dos and don’ts to follow before, during and after an injury.

Many times when people suffer from personal injuries, they have several questions: What should I do next? How do I know if I have a case? What exactly is negligence? How do I talk with the various insurance companies involved? There are several things to be aware of if you have experienced a personal injury. First, take a deep breath, you are not alone. Often, people feel they have lots of questions with nobody to answer them. You and your family should not struggle to find these answers alone. The following is a general guideline of dos and don’ts when a personal injury has occurred.

If you or a family member has been in a personal injury accident—
DO:

• Keep a disposable camera in your glove compartment or someplace handy to take pictures of the damage to property and/or physical injuries. If an accident occurs, you will have evidence of the accident and damage to the vehicles involved. If you do not have a disposable camera, and you have a cell phone with photograph capabilities, use your cell phone.
• Collect all pertinent information from the other person(s) involved—names, addresses, telephone numbers, driver’s license numbers, insurance card information, etc. This is very important, as you or your attorney will need to contact the other party and/or his or her insurance company at some point and will need documentation of this information.
• Get the names, addresses and phone numbers of any witnesses. This is crucial. After you’ve made sure that you and any other persons with you are alright, if you are able, collect information from the other parties involved, then look around for witnesses and take down their personal information.
• Notify police officers on the scene of details of the accident that you can recall, and let the officer know if you are experiencing pain. This is imperative, as the officer on the scene will take down statements from each party, including accident details, as well as information as to any injuries. These accident reports are available to insurance companies and may be used in the event of a trial. Also, be sure to seek medical attention immediately if you are injured.
• Contact a reputable personal injury lawyer as soon as possible after you’ve received the proper medical attention and direct all requests for information, statements and signed documents to your attorney. Before entering into a relationship with a lawyer/law firm, look at their credentials. Hauptman, O’Brien, Wolf & Lathrop is AV peer review rated, and with over 100 years of combined experience, we are the Omaha law firm with the experience to work for you.

If you or a family member has been in a personal injury accident—
DON’T:

• Don’t speak to an insurance adjuster regarding any matter related to your injuries OR give written or recorded statements to anyone about your case. Make sure you speak with an attorney before speaking to any other third parties, including insurance adjusters.
• Don’t sign checks or any other documents without first checking with your attorney.
  This can drastically affect your right to any future claim. Make sure you have consulted legal counsel on the matter and understand how to handle your situation properly.
• Don’t fail to contact your attorney if you are approached by any person or organization in relation to your case. Once you hire an attorney, any person or organization seeking to obtain information about your claim may only speak with your attorney, they may not contact you directly. Your attorney will be able to provide the proper and/or necessary information.

Road construction season begins in April, which means drivers need to be prepared for work zone hazards.

The work zone environment is dangerous—for both drivers and roadway workers. Large, slow-moving vehicles frequently enter and exit work zones, while workers on foot perform duties throughout the area. Research from the Federal Motor Carrier Safety Administration (FMCSA) shows large trucks have more accidents in work zones than other vehicles. Passenger-vehicle drivers, congestion and visibility issues can complicate the work zone environment. FMCSA advises professional drivers to:

• Fasten your safety belt.
• Slow down.
• Stay alert.
• Plan ahead.
• Give yourself plenty of room between your vehicle and the vehicle in front of you.
• Drive defensively.

The attached article from the National Safety Council provides more information.

It’s road construction season – Be prepared

I. PROPERTY SETTLEMENT.
Nationwide, there are two approaches taken by courts when determining what portion, if any, of a personal injury award should be considered in a divorce proceeding.  First, there is the “mechanical” approach, which holds that all amounts from a personal injury award are to be included in the marital estate.  The other approach is the “analytical” approach, which provides that only those portions of a personal injury award which represent compensation for past wages, medical expenses, and other items which diminish the marital estate are included within the marital estate.

In Pardae v. Pardae, 258 Neb 101, 602 NW2d 657 (1999), the Nebraska Supreme Court adopted the analytical approach.  The Nebraska Supreme Court pointed out that in determining what assets constitute a marital estate and how property should be divided, Nebraska, by statute, is an equitable property distribution jurisdiction.  The Court specifically noted,

In equity, there is rarely one tidy answer that fits every size and type of problem that courts are called upon to resolve.  It is precisely for this reason that a principled approach to this issue should be consistent with the basic policy rule that the marital estate should include only property created by the marital partnership. Id. at 108.

The Court defined the analytical approach as that approach where courts analyze the nature and underlying reasons for the compensation.  It further stated the core of the analytical approach is its recognition that the classification of the award depends upon the nature of the underlying loss.

It was the opinion of the Nebraska Supreme Court the analytical approach was much more consistent with the basic rule that the marital estate should include only property created by the marital partnership, and the Court adopted that approach.  The Court reasoned compensation for purely personal losses is not in any sense a product of marital efforts.  Id. at 109.  The Court therefore held compensation for an injury that a spouse has or will receive for pain, suffering, disfigurement, disability or loss of post-divorce earning capacity should not be equitably included in the marital estate.  Id. On the other hand, compensation for past wages, medical expenses, and other items that compensate for the diminution of the marital estate should be equitably included in the marital estate as they properly replace losses of property created by the marital partnership.  Id at 110.

The burden of proof to show the property is non-marital is on the person making the claim.  Therefore, in those cases where the party making the claim that personal injury proceeds are non-marital property must prove all or a portion of the personal injury compensation is for purely personal loss or loss of future earning capacity.  The Court stated there is a presumption proceeds from personal injury or workers’ compensation settlements or awards are marital property.

In order to determine what portions of a workers’ compensation award are marital property or separate property, a court must consider the following factors: “(1) the purpose of the award, such as whether it was made for lost earnings, loss of future earning capacity, or some other purpose; (2) the time period of any diminished earning potential or disability; (3) the nature and date of the underlying injury; and (4) the terms of the award.”  Gibson-Voss v. Voss, 4 Neb App 236, 242 NW2d 74 (1995).

II. CHILD SUPPORT.
In Maricle v. Maricle, 221 Neb 552 (1985), with regard to the award of child support, the Nebraska Supreme Court affirmed the trial court’s award of child support relying on a prior similar case which held the husband, although not capable of earning a wage, did have earning capacity within the meaning of Neb Rev Stat § 42-364(3).  The Court noted that Nebraska statute does not limit child support payments only to be paid from wages.  Specifically, the Court stated § 42-364(3) states in part, “in determining the amount of child support to be paid by a parent, the Court shall consider the earning capacity of each parent.”  Id. at 555.  The Court further noted:

It has been the law of this state for many years that in determining the amount of child support to be awarded, the status, character, and situation of the parties and attendant circumstances must be considered.  The financial position of the husband as well as the estimated cost of support of the children must be taken into account.

With regard to the earning capacity of each parent, the Court held ”earning capacity” refers to the overall capability of a parent to make child support based on the overall situation of the parent making such payments and that overall situation includes monies available to the parent from all sources, including investment income, even when that investment income is derived from personal injury proceeds.

III. CONCLUSION.
In a nutshell, Nebraska is an equitable distribution jurisdiction, and therefore equity allows the court to consider various factors when determining what portions of any workers’ compensation or personal injury award are to be considered marital property or to be taken into consideration in awarding child support.  Therefore, there will be no hard and fast rule.  However, it can be safely said that any part of an award which is attributable to pain and suffering and/or disfigurement will certainly be the sole property of the injured party.  With regard to a property settlement, any amount for future earnings will also be considered the sole property of the injured party.  However, when considering child support, any amounts attributed to future lost earnings will be taken into account when determining the amount of child support to be paid.