Throughout the United States, winter brings snow and ice to streets and sidewalks. Homeowners are responsible for clearing and sanding/salting areas on their property. City and town streets are maintained by state and local crews. When you’re driving or walking on snowy or icy streets, you do have to use caution, but it’s fair to assume the streets will be safe to use. What if they’re not? What happens if you are injured while using a town or city street?
You Have Several Things to Consider
This is a popular question in the winter and one that has to be carefully considered. Depending on your state/town/city’s regulations, the person responsible for maintaining streets and sidewalks may vary. For example, in a town, a state route or highway is often maintained by the state, but town roads are the town’s responsibility. On a private road that’s shared by neighbors, the association may be responsible for street maintenance. In some areas, homeowners must tend to the sidewalks in front of their home and their driveway. They must ensure that they do not blow or shovel snow into the street while doing so.
Keeping that in mind, you next have to look at whether the responsible party was negligent. Was there time for that party to get out and get the street cleared and sanded or salted. If the road crew is handling miles and miles of roads, it’s expected that it will take the truck time to do one area and move to the next. Even if the crew was lax at clearing or deicing the street you fell on, there are other factors. Were you in boots designed for walking in wintry weather or were you wearing shoes with no tread? If you were driving, did you have good tires? Were you driving at a reasonable speed for the conditions?
If you’re reasonably certain someone was negligent, you have to decide who it was. It may not be the town, city, or state. Private streets in a condo, apartment, or shopping complex are maintained why whoever the association or property owner hires. This is the person you’ll file a claim against. If you were walking and another driver lost control and hit you, the driver may be the negligent party. Bald tires, speeding, or distracted driving are all possible factors. You’d file a claim against that driver.
Situations Where Negligence is Clear
Proving negligence is key to filing a personal injury case after a crash on icy or snowy roads. Negligence has to be clear. The general assumption is that driving or walking on wintry roads comes with risk. If you opt to go out despite that risk, you’re to blame. There are exceptions. Here are a few examples.
A homeowner has his driveway paved and it’s not set up to drain correctly. Melting snow and rain run right down the driveway and into the road. During the night, that melting snow and rain freeze and form black ice. The homeowner could be liable for your crash because the paved driveway was not designed correctly.
A private plow pushes snow across a roadway and into a ditch. It leaves a mound of snow across the road that causes your car to drift and hit a car coming the other way. That private plow driver could be liable. Some towns and cities have strict laws against pushing snow from a driveway across the road, and that would help back up your claim.
It snowed two days ago. Traffic has packed down the snow, but the town still hasn’t come out and taken care of the road. The packed snow is icy and several cars have slid off. Despite complaints, the town still hasn’t spread sand or salt to give cars better traction. If this is the case, you could have a valid case against the town.
What If You Still Want to File a Complaint?
If you’re in a crash with another vehicle, whether it’s on foot or in your car, have the police file a report. You’ll want that paperwork when you file a claim with your auto insurance. If the other driver was all or partially to blame, your insurance company will advise you on what happens next.
If you’re a pedestrian, you’ll file a claim with the driver’s auto insurance company. If that driver doesn’t have auto insurance, you need to file a personal injury claim against the driver as quickly as possible. You don’t want to have medical bills stacking up that you can’t afford without restitution. Your health insurance may absorb some of the costs in the meantime.
Keep track of all the paperwork. This includes medical bills, reports, and witness statements. If you have photos of the road conditions, keep those with the rest of the paperwork. The more evidence you have proving that someone was negligent at maintaining the roads, the more success you’ll have.
As for filing a personal injury claim when you’re injured on snowy or icy roads, it’s best to ask an expert. Proving negligence is difficult, especially if you’re inexperienced. Don’t take chances. Talk to an experienced personal injury attorney to see if you have a case. The attorneys at Trial Lawyers for Justice have an exceptional winning record with more than 300 successful jury verdicts. They’ve secured a total of more than $1.5 billion for the injured and their families. It doesn’t cost you anything to talk to an attorney. Call 866-854-5529 now.
An Iowa family is suing a Nebraska-based nonprofit after a nonverbal 14-year-old died in the organization’s care and an autopsy found possible, but unconfirmed, signs of sexual abuse.
The lawsuit raises issues with the staffing, communication and training at Mosaic — a residential medical care company with a location in Forest City — and the lack of action by health care professionals leading up to the 2018 death of Samantha Wellik.
Wellik, diagnosed with multiple conditions including asthma and cerebral palsy, was pronounced dead Jan. 23, 2018, after several Mosaic staffers raised concerns about changes in her health, according to the lawsuit and a report from the Iowa Department of Human Services.
Samantha Jayne Wellik, 14, shown in an undated family photo. Wellik, who was diagnosed with cerebral palsy, died in January 2018 while living at the Mosaic care facility in Forest City. Her family is now suing the organization and several employees who worked with “Sami.” (Photo: Provided photo/Special to the Register)
That DHS child abuse report shows that at least three layman-type employees told supervisors that Wellik needed medical attention late on Jan. 22. An on-call nurse practitioner told workers to give the girl Tylenol and water and that she’d check on the teen in the morning.
A Mosaic employee sat in the girl’s room that evening, doing homework and talking on her cellphone, the lawsuit states. That worker was not trained to do CPR once she noticed breathing problems.
Investigators, after interviewing those working while Wellik died, determined the girl was denied critical care that night, according to the DHS report. Ben Novotny, an attorney with Trial Lawyers for Justice who is representing the Wellik family, said Wellk’s death was one of the worst neglect and abuse cases he’d seen.
“(Her death) was heart-wrenching, especially when you think that things are fine and then to find out they weren’t fine for quite some time,” Josh Wellik, Samantha’s father, told the Register. “It’s really hard when you have a child that cannot communicate, so she can’t tell me, ‘Dad, I’m hurting,’ or, ‘I don’t feel good.’
“To me, there should have been some way of the staff knowing that she wasn’t well for several months so something could’ve happened to prevent the outcome.”
Wellik died from “complications of ruptured bowel in the setting of Fournier gangrene,” according to the medical examiner’s report. The manner of death was undetermined.Get the News Alerts newsletter in your inbox.
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The lawsuit seeks punitive damages from Mosaic. A spokesman for the organization said Mosaic, which says it supports 4,500 people in 11 states, was reviewing the suit, but could not yet comment.
Josh Wellik said it “blew him away” to learn his daughter had died. Samantha had lived at Mosaic for more than five years, and he was not aware of any pressing medical concerns.
He said the grief of losing his daughter was compounded by the medical examiner’s finding that the girl had injuries consistent with sexual abuse. The examiner noted the damage could have been done by “forceful” enemas, though fluid that appeared to be semen was also found in the girl, Wellik was told.
“I was continuously following up once I heard (they were doing a) rape kit,” he said. “So … then they said there was a trace of semen but there was no DNA found, so they couldn’t come to a conclusion that that’s what it was.”
The state medical examiner’s office did not respond to questions about the possibility of sexual assault.
What happened the night she died?
Numerous Mosiac employees were in contact about Samantha Wellik’s condition late on the night of Jan. 22 and into the early morning hours of Jan. 23, according to a DHS Child Abuse Assessment Summary. Wellik lived with another nonverbal resident at 105 Kelly’s Court, an intermediate care facility in Forest City.
The DHS report details escalating concerns raised by several employees over seven hours, beginning at about 10:30 p.m. on Jan. 22. Those employees said they initially observed and reported that Wellik had severe diarrhea, was breathing differently and appeared to be in pain or uncomfortable.
One employee later noticed strange noises from Wellik’s abdomen as the girl moaned and screamed and had bowel movements for 45 minutes straight. By 3 a.m., the girl was “panting” and restless. Another employee reported that the girl’s stomach was hard and her toes were blue.
But despite being contacted by caregivers and supervisors throughout the night, the on-call licensed practical nurse (LPN) did not attend personally to Wellik. Instead, over numerous calls, the nurse instructed employees to give the girl Tylenol, to give her water and tuck her in, and to apply calming cream to soothe Wellik’s pain and bleeding from her repeated bowel movements. The nurse said Wellik was probably getting sick and that she would check on her the following day.
Wellik’s monitor in those early morning hours noticed when the girl’s breathing slowed, but she thought the girl was at last settling down and going to sleep. The employee watched as Wellik gasped, then exhaled.
“She was watching her breath and then there was no breath out,” according to the DHS report.
The girl stopped breathing around 6 a.m., and the panicked employee called a coworker and then the on-call nurse, who told her to call 911, DHS said in its report. Shortly after, the nurse and other supervisors ran to Wellik’s room but were unable to revive her.
The nurse told investigators that Wellik had a history of issues with bowel movements and did not have a fever, so she did not think the teen needed immediate medical attention, according to the DHS summary.
She also said her instructions throughout the night were standard for someone who didn’t have a fever and was “fussy,” “irritable” and “stuffy.” A program manager told authorities that when she saw Wellik, the girl was whining but had no fever, vomiting or labored breathing.
Samantha Jayne Wellik, 14, shown in an undated family photo. Wellik, who was diagnosed with cerebral palsy, died in January 2018 while living at the Mosaic care facility in Forest City. Her family is now suing the organization and several employees who worked with “Sami.” (Photo: Provided photo/Special to the Register)
DHS: Teen was denied critical care
In its report, DHS found Mosaic at fault in Wellik’s death by not providing critical care. It identified staffing shortages and a lack of training as contributing factors.
But DHS also said the medical staff that treated Wellik in the months before she died —as well as workers changing and bathing her — should have noticed a prolapsed anus and trauma to the vagina, as well as intense “diaper rash.”
Novotny says that experts he’s consulted say that the infections that killed Wellik were a product of fissures near her bottom. The tearing allowed stool to get into her body cavity, which caused a deadly case of Fournier’s gangrene. The infections were present for as long as two months, the attorney was told.
“My main feelings were, I guess, grief and sadness, because I really didn’t know what happened,” Josh Wellik said. “That was probably the toughest part of it; the month of waiting to finally find out it was something that, I feel, could have been prevented.”
High turnover, sleeping on the job
On the night of Jan. 22, 2018, and into the morning hours, snow moved across northern Iowa. One Mosaic supervisor told DHS that the facility was understaffed that night, and the weather further threw off workers’ schedules.
Issues of understaffing were rampant at Mosaic. The organization was forced to close two of its Forest City homes later in 2018 because it wasn’t able to staff them properly, according to a Mason City Globe Gazette story.
Mosaic did not respond to questions from the Register about staffing levels.
A Mosaic spokeswoman told the Gazette in December 2018 that the lowest number of open positions the company had in Forest City was at about 50. However, in recent months, there have been close to 70 open positions in Forest City.
In its report, the DHS called Mosaic “understaffed” and its employees “undertrained.”
“At the time when I (found out about Mosaic), things were a lot different than they were when (Sami) passed,” Josh Wellik said. “I got to know the old manager and the people who worked there, but when she passed, it was not the same staff.”
Wellik said some people who worked with his daughter reached out after she died, but he was upset that administrators did not communicate with the family, which lived nearby, more.
Many employees who help feed and clean Mosaic residents are not medically trained, Novotny said.
Some employees told DHS investigators that Mosaic’s daily operations were fine; others were frustrated by the difficulties in contacting medical staff, the constant understaffing and the general lack of training for lower-level workers.
One of these employees told investigators that she did not know what a CPAP machine was or that Samantha Wellik used the device for her asthma. The machine was later found in a closet.
“This place is notorious for being understaffed, and this night was one of those times where they’re understaffed,” Novotny said. “One person said they were understaffed because they’d fired a bunch of people because they were sleeping on the job.”
A supervisor told investigators that several changes were made because of employee conduct, including napping while on shift. An employee said two people typically would work one house during third shift, but fewer were available because workers had been fired and not yet replaced.
Josh Wellik said a manager he liked left Mosaic a couple of years before his daughter died, and that since then, there was a “revolving door” of new employees.
“Once she left, it just seemed like there was a lot of turnover, as far as the staff,” he said. “It didn’t really have a family-friendly or home environment toward the end there. There just wasn’t a lot of consistency.”
Sexual abuse ‘cannot be ruled out’
Questions about staffing and protocols aside, Josh Wellik said the most upsetting aspect of his daughter’s treatment and death is the possibility of sexual abuse.
“Originally, they told me they were doing rape kits, so then, of course, as a father, anger sets in,” Josh Wellik said. “It was inconclusive, but to even know that there was a chance that something like that could have happened, that’s enough to wreck a father.”
The doctor who performed the autopsy noted “apparent trauma” to the 14-year-old’s vagina and damage to her rectum. Her hymen was “not visible,” according to the report.
The cause of the injury is not known, but “a component of trauma (e.g. sexual assault and/or forceful enemas) cannot be excluded,” according to the autopsy.
Samantha did regularly receive enemas, the medical staff told investigators.
But that would not explain the material believed to be semen found in the girl’s body. Wellik said he was told by a person in the medical examiner’s office that substance appeared to be semen, but no DNA was detected.
No criminal charges have been filed against Mosaic in Winnebago County, according to online court records. Novotny said his client is hopeful the lawsuit can bring accountability to Mosaic, among other things.
“You can’t change the past. So he really has three things he wants to accomplish,” Novotny said. “No. 1, justice for his daughter; No. 2, making sure this doesn’t happen to anybody else; and No. 3, seeing if the DA will take a second look at this.
“If we need to protect anyone, this is the patient population we need to protect.”
Forbes estimates that about 17,000 medical malpractice lawsuits are filed each year. The majority of the claims are against doctors practicing in a high-risk specialty, though 3 out of 4 doctors in a low-risk specialty will face a malpractice claim at some point during their entire career.
There are many misconceptions involving malpractice. A general assumption that people who sue their doctors are only in it for the money. These are five of the things you never knew about medical malpractice.
#5 – Malpractice Cases With a Positive Verdict Often End Up With Reduced Awards
In a study of 198 cases where the jury awarded $1 million or more, only 1 out of 4 plaintiffs actually received the full award. Many were reduced by judges or in appeals by an average of 57%. Additional studies were done and found that 44% of malpractice cases in New York, 25% in California, and 20% in Florida were lowered after the verdict.
#4 – Malpractice Cases Can Take Years
If you talk to the medical professional and don’t get the treatment or response you feel is fair, talking to an attorney is your next step. The attorney will look at your medical records and complaint and determined if you have a valid complaint. If you do, the attorney looks for a medical expert who has the necessary expertise to be a witness.
Negotiations may occur with the medical professional or practice at this point. If not, the lawsuit is filed and discovery begins. As arguments are offered and evidence is revealed, the plaintiff’s and defendant’s lawyers may start negotiations to reach a settlement. If not, the case goes to trial.
According to a 2018 article from the American Association for Physician Leadership, it takes about 16 to 17 months to file a lawsuit and then 27 to 28 months to reach a verdict or settlement. It’s can be a long, arduous process.
#3 – Only 13% of Patients Who Experienced Malpractice Actually Filed a Claim
An Emory University law professor took a look at malpractice victims in 2014. She found that 95% of them had a hard time finding attorneys willing to take their case. People don’t understand their rights when a doctor, pharmacist, or nurse makes a mistake or is negligent. They don’t understand that they can file a claim months after the improper care.
#2 – A Maximum of 1% of all Malpractice Victims End Up Winning Their Case
In a study released by Clinical Orthopaedics and Related Research, 20 years of malpractice results found that medical professionals win 80 to 90% of cases with weak evidence of malpractice, 70% of cases with reasonable evidence of malpractice, and 50% of cases with strong evidence of malpractice.
Even when the evidence against the medical professional is strong, the victims don’t often win a favorable verdict. In fact, the New York Law School’s Center for Justice & Democracy reports that no more than 1% of malpractice victims will win a favorable verdict.
#1 – Studies Find That Very Few Malpractice Claims Meet the Definition for Being Frivolous
In 2006, Harvard released a study regarding medical malpractice claims. Of the 1,452 claims, more than 90% had a clear physical injury resulting from mistreatment, negligence, or mistake. Of those claims, 8 out of 10 cases showed severe injuries resulting in disability or death. Only 0.4% of medical malpractice claims didn’t show evidence of an injury related to treatment.
In National Center for State Courts’ 2017 data, only 4.04% of all civil and court cases involved medical malpractice. These cases are not in the majority.
An Expert Can Help You Understand Your Rights
Don’t let the media or statistics keep you from seeking justice. If you or a loved one has been harmed by medical malpractice, don’t give up hope of winning your case. Instead, be selective when it comes to choosing a personal injury attorney. Look for a law firm that specializes and has a strong track record for winning verdicts or settlements in malpractice cases.
Trial Lawyers for Justice specialize in medical malpractice. TL4J’s attorneys helped a family win more than $74 million after an infant was injured during birth. Other malpractice victims won $3.7 million and $16.4 million in malpractice verdicts and settlements. That’s just a small number of the clients TL4J has helped. You could be next.
Zaw Zaw’s dream of having more kids has disappeared.
The 41-year-old man — dad to three “delightful” children, according to his attorney — is not currently able to father any more children after Dr. Kevin Birusingh, then of the Iowa Clinic, performed a vasectomy when the patient thought he was getting a circumcision. A jury has found the clinic doctor mostly at fault.
“I think it came across to the jury that he was just devastated by what had happened here,” Zaw’s lawyer, Marc Harding, said Thursday. “And Dr. Birusingh and the people that he was working with over at the Iowa Clinic just didn’t really care.”
Zaw, who came to the U.S. as a refugee four years ago, was referred to the Iowa Clinic for a “routine and ritual male circumcision” in December 2015, according to the lawsuit filed by Harding. The Iowa Clinic provides the bulk of urology services in the Des Moines area, including procedures performed at the UnityPoint and Mercy hospitals.
But the January 2016 surgery instead ended the man’s ability to reproduce. Zaw — with help of Harding and attorney Ben Novotny — sued the Iowa Clinic and Birusingh. He was awarded a $2 million judgment, court records show. Jurors decided Zaw was 30% responsible, which will reduce the award.
Charlie Wittmack, an attorney for Birusingh, said in a written statement that “it is undisputed that Mr. Zaw Zaw signed two written informed consents and completed four consultations prior to having the vasectomy performed. Mr. Zaw Zaw also informed a separate physician’s assistant that he had scheduled the vasectomy in the days before it was performed.”
“Because Mr. Zaw Zaw does not speak English, both written informed consents and each of the four consultations were translated by two separate interpreters,” Wittmack said.
Harding said Iowa Clinic officials have also blamed Zaw for undergoing the vasectomy or not stopping the procedure.
The attorney said he rarely speaks to his client without someone to interpret. An interpreter was used in court. But a physician’s assistant claimed Zaw was fluent in English and mentioned getting a vasectomy, Harding said.
“I think there’s probably a fair number of people in the United States that English is their native language, and if you said ‘vasectomy,’ they wouldn’t know what you were talking about,” Harding said.
Besides, Harding says, it was up to Birusingh to make sure that the Myanmar native understood the procedure he was undergoing. Moreover, documents from the doctor who referred Zaw to the Iowa Clinic show he was seeking a circumcision, Harding said.
Birusingh is no longer at the Iowa Clinic; he was fired last year amid allegations that he and two other urologists planned to split off and start a new practice.
“It was a written referral that in four places said that it was a circumcision, and according to the records from Des Moines University, it was faxed over to the Iowa Clinic, which would have been for Dr. Birusingh,” Harding said.
Zaw testified that he had a copy of that document and he gave it to an interpreter, who delivered it to the front desk at the clinic. It was then given back to Zaw.
“What Dr. Birusingh said (in testimony) was, ‘I never saw it. I never read any of those,’” Harding said. “And basically, somehow they got it entered as being a vasectomy instead of being a circumcision.”
The jury found Birusingh was 70% at fault in the case, according to the verdict form filled out by the jury foreperson. Jurors awarded Zaw $2 million, or about $1.4 million after accounting for the fault assigned to Zaw.
An Iowa Clinic spokeswoman in an email pinned the blame squarely on Birusingh.
“We care about the well-being of all our patients,” a clinic spokeswoman wrote in an emailed statement. “In terms of specific detail on the care provided or offered to the patient, we don’t discuss that out of respect to the patient and privacy laws.”
A court verdict form lists Iowa Clinic as a defendant in the case, but the organization’s name does not appear in any of the eight questions answered by jurors about blame in the case.
The defendants, including both the Iowa Clinic and Birusingh, have filed a motion in court to stay the verdict.
“Defendants will file post-trial motions on several grounds, including but not limited to, that the verdict is inconsistent, excessive and unsupported by substantial evidence in the record,” the motion states. “Given the size of the verdict and the necessity of post-trial proceedings, Defendants request the Court stay entry of judgment until such time as the Court rules on Defendants’ post-trial motions.”
Harding said he is working on a response to the motion.
Attorneys at Finley Law Firm, which is representing the defendants, did not respond to a request for comment.
The payment to an Iowa Clinic patient is at least the second in as many years awarded by central Iowa jurors. A Polk County jury last spring awarded a Panora man more than $12 million after he underwent debilitating prostate cancer surgery before learning he didn’t have cancer.
Zaw plans to get the vasectomy reversed, Harding said, but there’s no guarantee he will be able to grow his family. Mayo Clinic reports that pregnancy rates after reversals range from 30 percent to 90 percent, but the longer a patient waits, the lower the success rate.
The circumcision was done at a differently facility, his attorney said.
“I’m sure that if Zaw Zaw had it — if he could wave a magic wand — I think he’d much rather been able to have had additional children than to have money, but that’s the only thing that we can do here,” Harding said. “I mean, (money is) a poor substitute, but it’s the only substitute we have.”
LOS ANGELES, CA, August 19, 2019 —A Los Angeles, California jury awarded $15.45 million to T.J. Simers in a lawsuit he filed against his previous employer, The LA Times, for violating his civil rights and wrongfully discriminating against him based upon his age and disability.
Simers previously won a $7.1 million verdict against the LA Times in 2015, however the LA Times convinced the court to set the verdict aside based on technicalities.
In March 2013, after 23 years of loyal service to the LA Times, TJ Simers suffered what was thought to be a mini-stroke, and he subsequently was discriminated against due to his disability and his age. His employer of 23 years kicked him when he was down. In November 2015, a California jury awarded Mr. Simers a $7.1 million verdict against The LA Times, however The LA Times filed new trial motions to set aside the verdict and won, resulting in a new trial on damages.
In August 2019, trial lawyers Nick Rowley, Courtney Rowley, and Astineh Arakelian re-tried the case against The LA Times, and this time the jury returned a verdict of $15.45 million in non-economic damages.
“The Los Angeles Times and it’s defense attorneys wanted a new trial because they did not like the last verdict of $7.1 million four years ago,” said trial lawyer Nick Rowley,
who was one of the lead trial lawyers on the case. “As my granddaddy always said, ‘be careful what you wish for’, as now with prejudgment interest and attorney’s fees, The LA Times will owe over $22 million.”
“My wife Courtney and I are incredibly proud of the jury but most importantly of T.J. Simers, his wife, and his family for never giving up on their belief in civil justice and the value of civil rights,” added Rowley. We tried the case together with Astineh Arakelian and our dear friends at the Shegerian Law Firm and are really thankful to have been brought into the case for trial.
