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Archive for the ‘Medical Malpractice’ Category

Crime is an inexcusable offence that may take different forms. For example, sedition, treason and espionage are crimes against the state where as murder, rape, kidnapping and assault are crimes against a person. Under criminal law, the government always files the suit where as in case of civil law a private party always files the suit.

Criminal law explains criminal offences and its elements and the punishment for the convicted offenders as an effective means of social control. The most important feature of the U.S. criminal law is its provision for common punishment. Certain criminal laws prescribe rules and regulations to observe and maintain higher standards of conduct. For example, helping the police in investigation when asked to do so and reporting to authorities immediately after a culprit is identified are examples of moral or ethical criminal laws.

According to the U.S. constitution there are certain crimes called strict liability crimes like drug abuse and weapon offences where the act itself is sufficient to punish the offender. Here the criminal law imposes liability without fail. In the U.S. crimes like conspiracy, terrorism and sexual harassment are dealt under inchoate crime laws where anyone aiding in planning and execution of the crime is subjected to the same penalties as a person who actually commits the crime. The crime could be the result of a direct cause or a legal cause or an intervening cause. Therefore, criminal law gives immense importance to the concept of causation.

Everybody wants the criminal to be punished for the crime he has committed. Penalties should be of such nature that the criminal would not dare repeat the act he has committed.

When it’s not recorded in ‘open court’, or when the injured victim dies before he receives the settlement check, and the terms of the settlement were never clearly laid out by either side.

Usually a settlement is reached among the attorneys or in Court with the assistance of the Judge. Where there is a verbal agreement between the attorneys as to the terms of the settlement, the victim’s lawyer will usually confirm those details in a written letter to the defense attorney. If a settlement is reached during trial, or at a pre-trial conference, the preferred method of settling the case is to ‘put the settlement on the record’. This means that a court reporter is called to the courtroom or Judge’s chambers, and the terms of the settlement are recorded and agreed to by all parties and later transcribed by the court reporter.

Why is this important you ask?

Because a settlement is not a settlement until and unless these rules are followed. Many attorneys are guided by principles of fairness and doing what’s right for their clients. However, let’s look at the following case where all sense of fairness was discarded.

A lawsuit was brought for a child who was injured at birth. At some point during the lawsuit an offer was made by the defense, and the offer was accepted by the child’s parents. In a child’s case, a Judge must always approve any settlement involving a child. Let’s also assume that the attorneys confirmed their intention to settle in writing subject to the approval of the Court.

This would be just fine if the Court had processed the paperwork quickly and a settlement check had been forwarded without delay. Unfortunately in this case, the Court delayed (unintentionally) processing the paperwork. Also, because the child was so severely injured his life expectancy was very limited. Between the time that the attorneys reached an agreement to settle the case and the time that the Court actually approved the settlement, the child died.

You would think that this story has a happy ending, but it doesn’t. The child’s lawyer notified the defense that the child died, and also sent the Courts’ approval of the settlement. Now here’s the worst part: the insurance company recognized a way out of having to pay this large settlement by claiming that there was never any proper settlement in the first place!

The insurance company refused to pay, claiming that since the child had died, the agreement that was reached at the time was no longer valid, and absent a Court order, they were not paying a dime!