Serious Injuries and Wrongful Death

Kentucky Supreme Court reverses longstanding law protecting victims of wrongful death

December 20, 2021 | by Garmer & Prather, PLLC

There has been a major change in the law of damages in Kentucky for children (or others) who die as a result of negligence, and the change doesn’t help the injured person.

In Kentucky wrongful death cases, the estate of the person who died may recover damages for funeral expenses and the destruction of the dead person’s ability to earn money. W. L. Harper Co. v. Slusher, 469 S.W.2d 955 (Ky. 1971). The estate may also recover damages that the deceased person incurred before he or she died, such as pain and suffering and medical expenses. KRS 411.133. In many cases, though, especially when a death occurred suddenly, the bulk of the damages available to an estate is the loss of the ability to earn money.

Some juries have been hesitant to award damages for destruction of earning capacity when a child dies before he or she has started working. Until last Thursday, the law in Kentucky was that unless the child had some pre-existing condition that would have prevented him or her from earning money as an adult, the jury was required to award damages for destruction of earning power. In other words, as long as the child was a relatively healthy person before he or she was injured, if a jury determined a defendant was negligent and caused the child’s death but awarded $0 for destruction of earning capacity, it was an inconsistent verdict. Either the court had to order the jury to continue deliberations and determine a fair award, or the plaintiff was entitled to a new trial on the issue of damages only. That is, once liability was established in the first trial, all the jury could do in the second trial was award additional damages for destruction of earning capacity.

Social Media Use During Litigation

February 23, 2021 | by Garmer & Prather, PLLC

These days, almost everyone will have a social media account during their lifetime. Consequently, social media has found its way into almost every part of modern life, including the courtroom. This is one reason why it is extremely important to monitor your social media accounts, especially if you are involved in litigation. Our team at Garmer & Prather can guide you through every step of your personal injury case, including how to handle your social media accounts.

The expression that, once something is on the internet it is there forever and anyone can find it, holds true for litigation purposes, too. You should assume that opposing lawyers and witnesses will look for your social media profiles. You should also assume members of the jury will explore your social media accounts, too.

At times, social media can be detrimental to your case, even if it was a seemingly harmless or unrelated status update or post. Consider this: You are involved in a case and are claiming serious lower back injury from a recent automobile collision. You probably know that you should not post about the owner of the vehicle that rear-ended you. However, last weekend you posted a photo of you and some friends enjoying a hike at a local nature trail. This seemingly innocent post can be misrepresented or misinterpreted by opposing counsel or a juror. They may not know that your physical therapist encouraged you to exercise to control your pain. They may simply conclude that the injuries you claim were not realistic.

What’s wrong with Kentucky’s nursing homes?

October 23, 2018 | by Garmer & Prather, PLLC

The nursing homes in Kentucky have problems — and advocates for residents say that no one in the government is doing anything to fix them.

Federal law is somewhat vague about the staffing requirements for nursing homes, leaving it mostly up to the states to pass legislation that is more specific. Kentucky, however, has not done so. Efforts to pass a 2017 bill that would have required a mandatory minimum staff fell flat. Those opposed — who largely represent the nursing homes’ interests — said that Kentucky’s nursing homes simply couldn’t manage it. The bill would have required just a single nurse for every 21 patients during daylight hours and one nurse’s aide for every 10 patients.

In essence, the lack of legislation leaves Kentucky’s nursing homes able to set their own minimum staffing levels — and they prefer it that way. According to a rating system used by the United States Centers for Medicare and Medicaid Services, 43 percent of the state’s nursing homes were rated either “much below” or “below” average when it came to the type of care they provide their residents. That puts Kentucky toward the bottom of the national list.

What can you expect after spinal cord injury?

August 28, 2018 | by Garmer & Prather, PLLC

Spinal cord injuries are among the most traumatic events that can happen to a person’s body. They create ongoing complications that go far beyond even the physical devastation of the initial injury.

While anyone can appreciate the enormous consequences of a spinal cord injury on someone’s life, most people aren’t aware of the additional health problems that are common when someone is immobile.

Immediately after a spinal cord injury, medical care tends to be focused on trying to get the patient into a stable condition. Occasionally, surgery to try to lessen the patient’s injury or reduce pressure on a nerve bundle is warranted early on in a case. Most of the ongoing medical care, however, tends to focus on rehabilitation and adaptive medicine.

The difference between wrongful death claims and survival actions

June 1, 2018 | by Garmer & Prather, PLLC

An unexpected death is always tragic — but it’s even worse when the death could have been prevented.

Those deaths often occur through things like truck accidents, injuries on construction sites and surgical mistakes. When the victims of these devastating events don’t live long enough to bring their own personal injury claims to court, their survivors can take action. They sometimes file two different type of lawsuits related to a victim’s death: a wrongful death claim and a survival action.

What are the differences between the two? How do they relate to one another? This is what you should know: