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Wrongful Death Actions for Unborn Children
Posted by: euser
July 24, 2007

Under Minn. Stat. ? 573.02, a surviving spouse or next of kin of a deceased can bring and action for wrongful death when the death was caused by the wrongful act or omission of any person or corporation if the decedent might have maintained an action, had the decedent lived, for an injury caused by a wrongful act or omission.

In 1949, Minnesota became the first state to interpret its wrongful death statute to include a cause of action for the wrongful death of an unborn child. Since then, 34 other states have also recognized the ability to sue for wrongful death of a fetus. This cause of action is not recognized by ten states, including California, Florida, New York, and Texas, and the remaining five states remain undecided.

Under Minnesota case law, in addition to proving the traditional elements of wrongful death, a plaintiff who brings an action for the wrongful death of an unborn child must show that the child was viable and capable of separate and independent existence from the pregnant mother at the time of death. This is shown by introducing medical evidence or expert testimony.

Minnesota has a three to six year statute of limitations for wrongful death, meaning that a plaintiff must commence an action within thee years after the date of death, provided that the action is commenced within six years of the wrongful act or omission. Your case could be time-barred if a lawsuit is not commenced within this period. The attorneys are Milavetz, Gallop & Milavetz are experienced and knowledgeable in the area of wrongful death and can help to evaluate your potential claim today.

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Can I Sue a City if I Slip and Fall on an Icy Sidewalk?
Posted by: euser
July 24, 2007

A municipality generally owes a duty to the public to exercise reasonable care in maintaining sidewalks and other public ways in a safe condition for passage. This duty extends to eliminating dangerous conditions caused by accumulation of snow and ice. However, because our state's climate makes it impossible to keep all sidewalks completely clear of snow and ice during the winter, the Minnesota legislature and courts have limited this duty by imposing various restrictions on the ability to bring this type of slip and fall action against a municipality:

1. Statutory Immunity: Under Minn. Stat. ? 466.03, subd. 4, a municipality is immune from a claim based on snow or ice conditions on any highway or public sidewalk that does not abut a publicly owned building or publicly owned parking lot, except when the condition is affirmatively caused by the negligent acts of the municipality.

2. Mere-Slipperiness Rule: During a Minnesota winter, a person could potentially slip and fall almost anywhere. Therefore, the courts have established the "mere-slipperiness rule," which states that mere slipperiness of a sidewalk is not negligence for which a city can be held liable. However, failure of a city to clear a sidewalk when ice or snow has accumulated in such a way and for such a period of time as to form dangerous ridges, irregularities in height, or angles of inclination that would be likely to obstruct travel or trip pedestrians or cause them to fall may give rise to an action for negligence.

3. Actual or Constructive Notice: Before a city can be held liable for failure to properly maintain a sidewalk, it must have had actual or constructive notice of the sidewalk's perilous condition a sufficient time before the accident to allow a reasonable opportunity to remedy the condition or otherwise guard the public from it. Constructive notice is notice that is presumed by law, such that the person should have had knowledge of the particular condition (for example, when ice repeatedly accumulates in a particularly dangerous manner in a certain location).

4. Artificial Causes vs. Natural Causes: The above limitations apply whether the ice has accumulated through the natural fall of rain or snow, or whether through artificial causes such as water running from a hose.

5. Contributory/Comparative Negligence: Additionally, a city may be able to reduce or avoid liability through contributory or comparative negligence by showing that you failed to use the degree of care that a reasonable person would have used under the circumstances to prevent the slip and fall from occurring. This may be demonstrated, for example, if you had, but did not take, a safer alternate route or if you could have seen the dangerous condition and avoided it in time.

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Introduction to Medical Malpractice
Posted by: euser
July 24, 2007

Medical malpractice is defined as a doctor's failure to exercise the degree of care and skill that a physician or surgeon of the same medical specialty would use under similar circumstances. Because medical malpractice is an action for negligence on the part of the medical provider, a plaintiff who brings such an action must prove by a preponderance of evidence the four elements of negligence:

1. Duty: The plaintiff must show the standard of care recognized by the medical community for the particular medical condition at issue. A member of the medical profession is required to possess a reasonable degree of skill and learning and exercise that skill and learning with due care.

2. Breach: The plaintiff must show that the particular medical provider departed from that standard of care by action or inaction. A medical professional will generally not be liable just because he or she made a mistake or achieved a bad result.

3. Causation: The plaintiff must show that the defendant's breach of duty was a direct ("proximate") cause of an injury to the plaintiff in that it is more probable that the injury occurred from the breach of duty than from anything else.

4. Damages: The plaintiff must show that he or she was injured.

These elements must usually be proven by expert testimony because of the specialized scientific knowledge that is required to evaluate a medical malpractice case. The expert medical witness is required to have sufficient scientific knowledge of and some practical experience with the subject matter of the offered testimony. However, expert testimony may not be necessary where the alleged negligent conduct is within the range of common knowledge, such that a jury could determine the case using commonsense.

Minnesota has a four year statute of limitations for medical malpractice, meaning that your case may be time-barred if a lawsuit is not commenced within four years of the date on which the cause of action "accrued." For a single act of alleged negligence, the cause of action accrues on the date of the act or at the time the plaintiff sustains damage from the act. For a malpractice claim arising from a course of treatment rather than a single act, the cause of action accrues on the date the medical provider's treatment for theparticular condition at issue ceases.

The attorneys at Milavetz, Gallop & Milavetz are experienced and knowledgeable in the area of medical malpractice and can help to evaluate your potential malpractice claim today.

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