Get Answers to These FAQs We Hear the Most
We know how many questions you must have right now about your personal injury or workers' comp case, so we compiled this list of the questions we hear the most. If you have a question that is not answered here, please call our Columbia law office to speak with Kenneth Berger.
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Is a Concussion a Form of Traumatic Brain Injury?
Concussions are a relatively common form of injury that some people take for granted as being not very serious, but few things could be further from the truth. Any blow to the head can be serious and become deadly, even if there’s no apparent bruising or broken skin. What exactly is a concussion, and how can it affect the brain and even the long-term health of a victim? Here’s what you need to know about concussion injuries, and how to get legal help if you have been hurt.
Concussions Are Brain Injuries
A concussion is not just a blow to the head; it is a form of traumatic brain injury that is often seen in professional and school sports, slip and fall accidents (especially in nursing homes), car or motorcycle accidents, and child daycare injuries.
A concussion may be caused by a direct hit to the head, such as when someone slips and strikes his or her head against the floor when falling, or slams against the dashboard in a car crash. The sudden impact can cause the brain to shift inside the head and strike against the inner boney surface of the skull. There may not be any evidence on the outside of the head that there was an impact, and the victim may not lose consciousness immediately or even at all. Some concussions happen even when the head has not been struck. When the head is subjected to a rapid acceleration or sudden stop, the force involved can cause the head to whip back and forth or side to side. In this situation, the way that the brain is suspended inside the skull can cause it to slam against the inside of the skull, causing injury.
Whether a contact concussion or one caused through a sudden start or stop, there are times when the brain not only strikes the forward surface of the skull. When the force is great enough, the brain may bounce inside the skull, causing another injury on the opposite side of the brain. This is called a coup-contrecoup injury, which can worsen the symptoms of a concussion and prolong healing time.
The Symptoms of Concussion After an Accident
Certain signs and symptoms can show if someone has suffered a concussion, including the following:
- Headache or a feeling of pressure
- Nausea or vomiting
- Mental confusion
- Delayed or sluggish speech, responses, or movement
- Inability to focus, pay attention, or concentrate
- Trouble staying awake or trouble falling asleep
These are not all of the symptoms of a concussion, and some or all of the symptoms may even be delayed, so it is important whenever there’s a suspected head injury to see a doctor as soon as possible afterward and get tested for a TBI. Many of the symptoms of a concussion can also mimic those of other types of TBI that are deadly if left untreated, such as bleeding on the brain or uncontrolled swelling. Diffuse axonal injuries and neurochemical cascades are also hallmarks of concussion.
After a concussion, follow your doctor’s recommendations on how to best recover and when it is safe to partake in physical activity again. A second blow to the head while still healing from an initial concussion may lead to what’s known as “second impact syndrome,” which causes rapid, uncontrollable swelling of the brain. Second injury syndrome can cause permanent disability or death very quickly.
Get Legal Help After a TBI
If you or someone you love has suffered a concussion or other traumatic brain injury, you may be able to receive compensation from the person or parties responsible. By pursuing a personal injury lawsuit, you could be eligible to have the costs of your injury covered, including your medical bills, rehabilitation and physical therapy costs, behavioral or psychological treatment expenses, and more, as well as compensation for your loss of function and your pain and suffering, too.
To speak to an experienced attorney who cares about finding justice for the victims of traumatic brain injuries and their families, the Law Office of Kenneth E. Berger is here to help you today. Our office is conveniently located in Columbia, and we proudly serve the Lexington, Florence, and Myrtle Beach areas, as well as the entire state of South Carolina and beyond. Reach out to us by phone, send us an email, or just click the live chat box on this page and arrange a free consultation with us today.
What is the Statute of Limitations For a Wrongful Death Action in South Carolina?
The time in which you have to file a lawsuit is known as the statute of limitations. Under the laws of South Carolina, you have 2 years to bring a lawsuit - also known as a civil action - against governmental defendants. For instance, if you wanted to hold a county hospital or one of its doctors responsible for medical malpractice, you would most likely only have 2 years from the date the malpractice was committed.
For wrongful death actions against non-governmental defendants, you generally have 3 years from the date of the incident. One example would be in a lawsuit seeking to hold a company accountable for its defective airbags. Let's say Takata or another airbag manufacturer had a defective product in the vehicle, and the defect caused a loved one's death, you would have 3 years from when the accident occurred to bring suit.
There are caveats to these umbrella rules, such as cases when the act of malpractice is not discovered until months or even several years after it was committed, but when possible you do not want to come anywhere close to running out of time to bring a civil action.
Often times, it takes great effort and a significant period of time to properly investigate potenital wrongful death claims prior to initiating a lawsuit. In other words, if you have questions about a potential case, it is important to contact a South Carolina attorney early enough in the process to: a) avoid rushing into litigation; or b) creating any statute of limitations issues.
If you are dealing with the loss of someone you care about, and have any questions about what could have been done to prevent their passing, please do not hesitate to contact us. There is no consultation fee. Likewise, we do not want you second-guessing yourself down the road about what actions could have been taken to uncover the truth and hold the negligent parties responsible.
What is an Attractive Nuisance?
Child injury law is a little bit different than regular adult personal injury situations, due to the natural curiosity and relative inexperience of young ones. In many cases, children simply don’t know better, and may do things that could lead to serious injury or even death. Children may not understand the consequences of their actions, or find themselves in situations that for an adult would not normally be hazardous. When the stage is set for a child to be hurt in a way that an adult should have foreseen, that situation or circumstance may be legally called an “attractive nuisance.”
Defining an Attractive Nuisance
Attractive nuisances are a part of the concept of premises liability. Premises liability is a part of the law that allows a visitor or guests on a property to seek compensation from the owner of that property in case of an injury caused by the owner’s negligence. Property owners are generally expected to protect visitors from harm with routine maintenance, appropriate safety and security precautions, and either removing or marking hazards for guests to avoid.
In most cases, premises liability law does not protect trespassers—the visitor must be invited to the property either explicitly, or in cases of business locations, implicitly, by being open to the general public. However, the law makes an exception in certain circumstances of trespass involving children.
Here are some of the key criteria that help define an attractive nuisance case:
- The property owner was aware or should have been aware that children could trespass on the property. An example might be a highly visible property that is located near a school, along a school route that children regularly use, or near a playground or other location that children visit.
- There was some unsecured danger, condition, or hazardous item on the property that caused serious injury or death to a child, such as an unfenced swimming pool, trampoline, or other unprotected amusement that could cause harm.
- The child or children involved in the accident were not old enough to understand the potential risk to life or limb that exists on the property.
- The property owner must have failed to take reasonable precautions to prevent an injury or death, such as with a locking gate or by securing dangerous equipment.
- There must be a real benefit to fixing the hazard or securing the property with regard to the health and well-being of potential child trespassers. For example, it is not usually reasonable to prevent a potential child injury by destroying every swimming pool. Installing a locking gate to prevent child access, however, is likely a reasonable precaution that should be taken.
When all of the above factors come together in a situation where a child has been hurt or killed, attractive nuisance law comes into play.
Children are our most valuable asset for the future. We as adults have a duty of care to ensure that children are safe from our negligence, because they simply don’t have the capacity or experience to understand the very real hazards that exist all around us every day. Failure to uphold that duty can lead to severe injuries and tragic losses of life that could have been avoided if only an adult had taken the time to care and the responsibility of maintaining his or her property.
If your child has been injured on someone else’s property and you think you may have a case for an attractive nuisance, the Law Office of Kenneth E. Berger is here for your family. We can help you seek compensation from the person responsible for your child’s injuries so that you can recover hospital costs, doctor visits, rehabilitation, long-term care, and more. Our office is conveniently located in Columbia, and we proudly service all of South Carolina, including the Sumter, Florence, and Myrtle Beach areas. To arrange a consultation with a legal professional today, call us by phone, send an email via the contact link, or click the live chat box on this page right now.
How Can I Prove the Other Driver Was Texting at the Time of the Wreck?
There are 1000s of rear-end collisions on South Carolina's roadways each year. Often times, the person who has been injured knows intuitively that the at-fault driver was distracted - most likely by a cell phone. But how can you prove this fact when the other person will almost certainly deny it? In my experience, there are 3 very important steps that can be taken:
1. A preservation of evidence letter (also known as a "spoliation" letter) should be sent to the distracted driver and his/her insurance company as soon after the wreck as possible. The letter my office uses demands that the cell phone, along with text, email, Facebook, Instagram, Snapchat, Internet usage, and all other data history be preserved exactly as it existed at the time of the accident. If we learn that the phone was tampered with, or any potential evidence was deleted after receipt of our "spoliation" letter, we can seek to have the judge inform our jury of this fact in the event the case goes to trial. That looks very bad for the defendant. On the other hand, if evidence is not destroyed, we may very well have our "smoking gun" in the form of text messages that were sent and received in the moments leading up to the collision. Either way, a preservation of evidence goes a long way towards proving distracted driving.
2. In the event a lawsuit becomes necessary, South Carolina law allows subpoenas to be sent to any person or entity in possession of potential evidence. To this end, a subpoena should be sent to the negligent driver's cell phone provider. While the subpoena response may only provide a call history or monthly data usage, it can provide evidence of how much time a person spent glued to their cell phone.
3. If depositions are required to further prove the case and hold the driver responsible for his/her actions, the attorney should dig in on the distracted driving issue. This is especially true for rear-end collision and blown stop sign cases. Simply put, a driver does not run into the back of someone else unless he is going far too fast for conditions, following too closely, or driving while distracted. Many times it is some combination of these dangerous variables. Though the defendant may not fully admit to using his cell phone at the time of the wreck, he will be forced to admit at least one major safety law violation (speeding, tailgating, taking his eyes off the road for a dangerous length of time) or look very foolish denying it. No matter his answer, you win.
I have handled distracted driving cases across South Carolina for a number of years now, and would be glad to assist you as well. If you believe the person who crashed into you was on a cell phone, but need help proving it legally, we are here to serve. You can contact us 24/7 via our live chat, or call us at one of our convenient office numbers listed on the website. We look forward to hearing from you, and to holding the dangerous driver accountable.
Can I still file a lawsuit after a motorcycle accident if I wasn’t wearing a helmet?
It’s something that no rider likes to think about for long, but the fact remains that riding a motorcycle carries an inherent level of danger, and accidents can cause devastating injuries. Even the most careful rider on the road can’t always account for the behavior of other drivers. Sooner or later, another vehicle may cause a crash with a motorcyclist, and the rider may not be wearing a helmet in South Carolina. In situations like this, one of the biggest questions that attorneys get asked is from victims who wonder if they can still sue the other driver for the accident.
Filing a Motorcycle Accident Lawsuit in South Carolina
The answer to whether you can file a lawsuit is a qualified “yes.” You can absolutely file a lawsuit against another driver whose negligence or recklessness caused your motorcycle accident, even if you weren’t wearing a helmet. The success of your suit will depend on a few important factors.
First, it’s important to realize that South Carolina law says riders over the age of 21 are not legally required to wear a helmet. In other states, where wearing a helmet is required, your lawsuit could face a much greater challenge, since not wearing a helmet directly violates the law. This situation can occasionally catch riders who cross state lines without realizing the change in law over the border. One example is when riders visiting Myrtle Beach during Bike Week may decide to venture further afield and cross the nearby North Carolina border, where helmets are required. If an accident happens across the border and the rider is not wearing a helmet, an injury lawsuit could be more difficult, particularly if it involves a head injury.
Even in states like South Carolina, there may be some challenge to a lawsuit if you suffered a head injury, as the other driver may claim that not wearing a helmet contributed to your head injury. However, there is a powerful legal tool that can still help victims recover in situations like these.
Comparative Negligence in South Carolina
When the other driver offers a challenge to your lawsuit, South Carolina follows a type of law called “comparative negligence” to determine who is responsible for the injuries and other damages in an accident. What this means is that under South Carolina law, even if you are found partially responsible for your injuries, you are still eligible to receive compensation, so long as you can demonstrate that the other driver (or drivers) were more than 50 percent responsible for the accident.
When determining your final compensation under comparative negligence rules, the award will be reduced based on how much liability you are found to have for your injuries. For example, if the court finds that the other driver is 80 percent responsible for the accident and that you are responsible for the remaining 20 percent, your award will be reduced by 20 percent. In this situation, if you were awarded $50,000 by the jury, it would be reduced to $40,000. However, if you were found to be over 50 percent liable, you would not be eligible to receive any award at all.
Most states these days have accepted some form of comparative negligence as law, but a few (including our neighbors, North Carolina) still follow a rule called “pure contributory negligence.” In these states, if you are found to share in any part of the responsibility, you are not allowed to receive any damages at all.
Wearing a Helmet Can Save Your Life
While you are under no obligation to wear a motorcycle helmet in South Carolina if you’re over the age of 21, the fact is that helmets save lives. Statistics from the Centers for Disease Control and Prevention show that wearing a helmet reduces the risk of death by as much as 37 percent, and reduces the risk of head injury by 69 percent.
If you’ve been in a motorcycle accident, don’t hesitate to reach out to a personal injury attorney as soon as possible. An attorney can help you protect your legal rights in an accident and determine if you are able to seek compensation from the ones responsible for your accident.
The Law Office of Kenneth E. Berger is proud to stand up for the rights of motorcyclists across all of South Carolina, including the Myrtle Beach, Columbia, and Florence areas. To speak to an experienced legal professional and arrange a consultation about your motorcycle crash case, call or email us today.
Who Is Legally Responsible for Injuries on Rental Properties in South Carolina?
Regardless of whether the accident occurs at a commercial (e.g. office building, restaurant) or residential location (e.g. apartment, beach house), the owner, renter, and any company who performed construction or maintenance on the property may be liable. These cases are very fact specific, but South Carolina law generally follows the age-old rule that people are responsible for their actions. Property owners must fix or warn people of dangerous conditions. Renters must not endanger their guests. Companies that work on site must meet the standards and follow the rules of their industry.
Depending on whose negligence contributed to the injury, a claim may be filed with multiple insurance companies. For example, some people carry renters insurance. Most landlords will also have either a homeowners or commercial policy. Likewise, if it was a construction or maintenance company's negligence that caused the accident, their insurance company should be notified. As you can tell, there is often a lot of finger pointing between the various potential defendants. In most instances, the insurance companies want to blame each other, but rarely do they want to step up and take responsibility for the harm that has occurred.
Fortunately, South Carolina's premises liability laws - which govern accidents on rental properties - demand that innocent people be made 100% whole. Multiple insurance companies may have to contribute for damages such as medical bills and severe physical pain, and in the end, regardless of who pays what, it must add up to 100% of an innocent person's losses. As the saying goes, "anything less than full justice is injustice." In fact, that is not just a saying, but rather the law of South Carolina.
For more free answers to questions regarding your accident case, simply call my office today at one of our convenient statewide numbers, or use our 24/7 live chat feature. We look forward to helping you as we have countless others.
Can I Sue the Insurance Company for Bad Faith in South Carolina?
Yes, so long as certain elements are met, insurance companies can absolutely be sued and held accountable for their wrongdoing. Remember, all insurance policies are contracts. The insurer promises to pay money in the event of an accident, and in return, the insured pays a premium. In South Carolina, the law says there is an implied covenant of good faith and fair dealing in every contract. When that covenant is violated, it is considered bad faith, and opens insurance carriers up to lawsuits.
For People With a Claim Against Their Own Insurance Company
Who can bring such a suit? The first example would be the individual or entity with the insurance contract. For instance, if you needed to undergo a medical procedure or you were suppose to receive long term disability benefits at work or your property was damaged in the 2015 flood, and the insurance company refused to fully and timely fulfill its obligations under your contract with them, it could be considered bad faith. If that were to happen, you could potentially take legal action against them to not only obtain the benefits you were paying for by way of your premium, but additional damages related to the consequences of their wrongdoing.
For People With a Claim Against Another Person/Business' Insurance Company
The next example of who may pursue a bad faith action in South Carolina is a little more complicated, but I'll explain. So let's say you were involved in a car accident and your medical bills are $25,000.00, you missed 3 weeks of work, you're still having significant back pain, and the person who ran into you has admitted fault. In that scenario, you would have a claim against the at-fault driver's insurance company. But let's say instead of acting reasonably, the liability insurance carrier only offers you $10,000.00. They claim that after reviewing your medical history, it appears that you had degenerative disc problems, and they do not believe your current issues were caused by the wreck (despite the fact that you had not had any back issues in years, were working everyday, and going to the gym 4 times a week). It sounds absurd, but this kind of thing happens everyday. What can you do?
The bad news is South Carolina law does not allow you to sue another person's insurance company. The good news is there is a way around it. So what you have to do is first get a verdict against the insured, at-fault party, that is in excess of the insurance policy limits. Next, you would get the at-fault party to assign you his rights against the insurance company in return for not going after his assets. For example, if the negligent driver who hurt you only has $50,000.00 in insurance and you obtain a $350,000.00 verdict against him after his insurance carrier acted unreasonably or in bad faith by not settling the case sooner, you would give the defendant the option of either paying you the $300,000.00 difference, or assigning you his rights to go after the insurance company.
Hold Them Accountable For Their Bad Faith
To summarize, insurance carriers must put the people and entities they insure first. They must act in good faith, and deal fairly. When they do not, either with their insured or someone their insured hurt, legal action may be taken. However, unlike more basic claims, bad faith lawsuits - and often times the verdicts that are first required - will almost certainly take a lawyer who understands this highly nuanced area of law. If you have questions about an insurance claim, accident case, or any aspect of South Carolina's bad faith laws, simply call me at 803-790-2800 or request free copies of my books.
Insurance companies promise to protect people. My job is to make sure that promise is kept, and hold them accountable when it is broken.
How Can I Get Fairly Compensated for My Permanent Physical Impairment After a Car Accident?
In South Carolina, compensation in a civil case is based on "damages." This may include past medical expenses, lost earnings, physical pain, and mental anguish. Lesser known damages are those related to permanent injuries. However, the law is clear on this point. If another driver's negligence causes you harm, you should be compensated for past, present, and future losses. Often times, the insurance carrier will try to settle the case only weeks or months after the wreck. The settlement offer will be based on what you have experienced to date, but not what you face in the future.
So what can be done to ensure that all damages - including any long-term impairments - are properly valued? First, there must be medical documentation. That does not mean you should go out and lie to a doctor about your condition. Rather, it means to be forthright with medical professionals about any and all ways the accident still affects you. For instance, if you are having neck or lower back pain 9 months after the wreck, your doctor needs to know that. It will help your case, but more importantly, it will help ensure you get the medical care you need.
At some point, the doctor will likely conclude that you have reached a plateau. This is known in South Carolina as "maximum medical improvement." It does not mean you are 100% better, only that you have made as full a recovery as you are going to make. This is the appropriate point in time for a doctor to issue an impairment rating. For example, let's say you had to undergo back surgery after your car accident. Your treating orthopedist may give you a 15% impairment rating to the spine once you complete physical therapy. The impairment rating will be based on medical guidelines.
In presenting your case to the insurance carrier, we would note the impairment rating. However, the emphasis would be on how the injury will permanently affect your daily life. Whether the greatest impact is on your work, family, or recreational pursuits, insurers must properly compensate you for all the ways your life has been altered.
Along with physical restrictions, your long-term injuries may remain painful and require future medical care. South Carolina law allows you to recover for those ongoing and future damages, but you only have one bite at the apple. In other words, your one-time settlement must account for every damage you ever have or ever will incur. That is why it is so critical to properly identify any permanent injuries and the consequences arising from them, before settling.
I have given presentations on this topic for other lawyers, and would be glad to speak with you about compensation for future damages, or any other aspect of your auto accident case. To speak with me, call my Columbia, SC office today at 803-790-2800.
Do Parents Receive Any Type of Compensation If Their Child Is Injured in South Carolina?
I represent lots of children, which means I meet with lots of parents. The focus is always the young person's health and well being. A secondary concern is whether mom and dad are entitled to compensation for losses arising from their child's accident. The answer is "yes and no."
South Carolina law allows parents to make a claim for any medical bills their son or daughter incurs. For instance, if your child has a $30,000 hospital charge, you could recover that portion of the claim (fyi: don't let an insurance adjuster tell you that you can only recover the co-pays). Likewise, your child is permitted to recover money for their physical pain, lost quality of life, impairment, and other non-medical losses.
Conversely, parents do not receive money for the time they miss from work or the stress they experience due to their child's injury. The only exception in South Carolina is when the parent actually witnesses the accident. This is known as "bystander liability" because the negligent party is liable not only for the child's injuries but also the shock that comes to the parent who sees their son or daughter get hurt.
Injuries to children often take a financial and mental toll on families. You do not have to bear that burden by yourself. I help families across South Carolina, and am here to help you as well. Call my office today for a free consultation at 803-790-2800.
Should I Sign the Health Authorization Forms The Insurance Company Sent Me After My Car Accident?
Keeping up with all the insurance company and claim information following a wreck can be challenging. So can deciding which forms you must sign, which forms you should sign, and which documents you should just throw in the trash. The at-fault party's insurance carrier is going to want all your healthcare information - not just the bills and records related to your accident. Therefore, the HIPAA forms they send you are usually very broad. You do not have to sign their health authorizations, however.
3 Options to Consider
In fact, I recommend one of three options to my fellow South Carolinians:
- Contact the adjuster and tell him/her that you will sign a HIPAA form that applies only to medical records since the date of the accident;
- Toss the health authorization form in the trash, and obtain the medical bills and records yourself;
- Consult with an attorney on the best course of action.
I offer free consultations, but even without having to meet in person, I can tell you that my general rule of thumb is this: in small cases (i.e. one hospital visit to get checked out and maybe a couple follow ups to your family doctor) signing a healthcare release probably isn't a big deal. The reason is that even if you had a number of preexisting conditions, the value of your case should not change based on past medical history.
Conversely, if you have a case that has significantly impacted or altered your life, please don't sign any type of insurance or healthcare forms without at least speaking to a lawyer. Insurance companies will dig through your entire medical history to use anything and everything they can against you. Rather than allowing an insurance adjuster to use that information against you, consult with a lawyer who can show you how your preexisting conditions actually help your case.
Contact an Expert If You're Unsure
Health authorizations - just like recorded statements and early settlement offers - are simply a ploy to pay you less than fair compensation. I help injured people throughout South Carolina, and would like to help you as well. Whether it be with free copies of my books or a free consultation, there is absolutely no harm in allowing me to answer questions about HIPAA forms or any other aspect of your accident case.