What is Medical Malpractice?

MEDICAL MALPRACTICE CASES

Medical malpractice cases are legal disputes that arise when a healthcare provider’s negligent actions or failure to provide the standard of care results in harm to a patient. These cases can be complex and require a thorough understanding of medical and legal principles. In this blog post, we will provide an overview of medical malpractice cases, including what constitutes medical malpractice, common types of medical malpractice, the process of filing a medical malpractice lawsuit, and what to do if you suspect you or a loved one has been a victim of medical malpractice.

What is Medical Malpractice? Medical malpractice occurs when a healthcare professional, such as a doctor, nurse, or hospital, fails to provide the standard of care that is expected of them, resulting in injury or harm to a patient. The standard of care refers to the level of care that a reasonably competent healthcare professional with similar training and experience would have provided under similar circumstances. Medical malpractice can occur in various healthcare settings, including hospitals, clinics, nursing homes, and private practices.

TYPES OF MEDICAL MALPRACTICE

Medical malpractice can take many forms. Some common types of medical malpractice include:

  1. Misdiagnosis or delayed diagnosis: When a healthcare provider fails to accurately diagnose a medical condition in a timely manner, it can result in delayed or improper treatment, leading to further harm or complications.
  2. Surgical errors: Surgical errors can occur during any stage of a surgical procedure, from the pre-operative assessment to the post-operative care. Examples of surgical errors include wrong-site surgery, leaving surgical instruments inside the patient, and damaging nerves or organs during surgery.
  3. Medication errors: Medication errors can occur when a healthcare provider prescribes the wrong medication, the wrong dosage, or fails to account for potential drug interactions, resulting in adverse reactions or harm to the patient.
  4. Birth injuries: Birth injuries can occur during childbirth due to negligence on the part of the healthcare provider, resulting in harm to the mother or the newborn, such as birth trauma, cerebral palsy, or other birth-related injuries.
  5. Failure to obtain informed consent: Healthcare providers are required to obtain informed consent from patients before performing any medical procedure or treatment. Failure to adequately inform patients of the risks, benefits, and alternatives of a procedure or treatment can result in a lack of informed consent and potential legal liability.

FILING A MEDICAL MALPRACTICE LAWSUIT

If you believe that you or a loved one has been a victim of medical malpractice, it’s important to understand the process of filing a medical malpractice lawsuit. Here are the general steps involved:

  1. Consultation with a medical malpractice attorney: Medical malpractice cases are complex and require specialized legal knowledge. It’s crucial to seek the assistance of an experienced medical malpractice attorney who can evaluate your case and provide expert guidance.
  2. Investigation and gathering of evidence: Your attorney will conduct a thorough investigation of your case, including reviewing medical records, consulting with medical experts, and gathering evidence to support your claim.
  3. Filing the lawsuit: If your attorney determines that you have a valid case, they will file a medical malpractice lawsuit on your behalf, naming the healthcare provider(s) and/or facility as defendants.
  4. Discovery: During the discovery phase, both parties exchange relevant information and evidence related to the case, including medical records, expert opinions, and depositions of witnesses.
  5. Negotiation and settlement: Many medical malpractice cases are resolved through negotiation and settlement outside of court. Your attorney will work with the defendants’ attorneys and insurance companies to try to reach a fair settlement that compensates you for your injuries and damages.
  6. Trial: If a settlement cannot be reached, the case may proceed to trial. During the trial, both sides will present their case to a judge and jury, who will determine the outcome of the case.

WHAT TO DO IF YOU SUSPECT MEDICAL MALPRACTICE

If you suspect that you or a loved one has been a victim of medical malpractice, there are several steps you can take:

  1. Seek medical attention: If you are experiencing symptoms or complications related to a medical procedure or treatment, seek medical attention immediately.
  2. Keep detailed records: Keep detailed records of all medical procedures, treatments, and interactions with healthcare providers, including the names of providers and dates of appointments.
  3. Consult with a medical malpractice attorney: Consult with an experienced medical malpractice attorney who can evaluate your case and provide expert guidance.
  4. File a complaint: If you believe that a healthcare provider has engaged in misconduct or malpractice, you can file a complaint with the appropriate state licensing board.

Medical malpractice cases can be complex and challenging, but with the help of an experienced attorney, you can pursue justice and compensation for your injuries and damages. By understanding the basics of medical malpractice, you can take steps to protect your rights and hold negligent healthcare providers accountable.

LLOYD GATHINGS

GATHINGS LAW

BIRMINGHAM, AL

(205) 322-1201

Please Join Us in Welcoming Our Incoming Associate, Rachel Leigh!

Rachel graduated from Cumberland School of Law in May 2021. She had an impressive law school career, graduating in the top 25% of her class. During law school, Rachel was invited to participate in the write on process for the American Journal of Trial Advocacy because of her strong academic performance her first year of law school. She successfully completed the write on process and was selected as a member for her strong writing skills. At the end of her first year, Rachel was selected from a highly competitive pool of candidates to clerk for the Honorable Judge Bowdre, then Chief Judge of the Northern District of Alabama. Rachel also was awarded the Scholar of Merit award for her Criminal Procedure course. The Scholar of Merit award is awarded to the student with the highest grade in the course. Before joining Gathings Law as a clerk, Rachel clerked with several well-known law firms gaining experience in a wide range of practice areas from family law to securities law to personal injury.

Rachel will be joining Gathings Law as an associate this Fall after the bar exam.

We are very excited to have Rachel join us. Please help us in welcoming Rachel to the Gathings Law team!

REIT All About It! What Investors Should Know About Non-Traded REITs and Their Investments

Companies that own—and often also operate—income-generating real estate are known as Real Estate Investment Trusts (“REITs”).  REITs can own and operate numerous types of real estate such as office buildings, apartment buildings, hospitals, hotels, shopping malls, and more.  REITs are modeled after mutual funds and pool the capital of several investors to make it possible for individual investors to earn dividends without having to buy, manage, or finance any of the real estate properties themselves.  However, REITs have evolved more conflicts of interest than the mutual funds they are modeled after.

Before getting into problems with non-traded REITs, it is helpful to look at what is required to qualify as a REIT.  Just because a company owns and operates real estate does not necessarily make it a REIT though.  The company must meet the following requirements:

Income TestAt least 75% of gross income is derived from real estate (e.g., rents, mortgages), 95% from real estate or passive income (dividends and interest).
Asset TestAt least 75% in real estate assets, cash, and government securities; no more than 25% in non-qualifying securities or stock or a taxable REIT subsidiary. Except for taxable REIT subsidiaries, a REIT may own no more than 10% of the securities of a single issuer. No more than 5% of a REIT’s assets may be the securities of a single issuer.
Distribution RequirementsMust distribute at least 90% of taxable income to shareholders; distributions are deductible from the corporate tax base.
Shareholder RestrictionsAt least 100 shareholders; no more than 50% of shares owned by five or fewer shareholders. Shares must be transferable. Institutional investors are treated as multiple shareholders representing beneficiaries.
Corporate RestrictionsMust be taxable as a domestic corporation but for REIT status; foreign corporations cannot be REITs.
Tax Treatment of ShareholdersShareholders taxed at ordinary rates on dividends and capital gains rates on distributions representing capital gains. Tax-exempt shareholders are not subject to the unrelated business income tax.

26 U.S.C. §§ 856-860.

Non-traded REITs are designed to mitigate or completely eliminate tax while still providing the investor with returns.  The fees can be high, ranging anywhere from 5% to 20%.  Early on, investors may not know the types of properties, and initial acquisitions may be done through blind pools where investors do not know the specific properties being added.  Further, non-traded REITs may remain illiquid for quite some time, leaving investors with almost no ability to redeem or sell their shares—there is no real secondary market for minority shares.  However, non-traded REITs continue to pay advisors and property managers and often investors must continue to pay these fees that are associated with their investment until there is a “liquidity event.”  These liquidity events are often mergers or listings.

Non-traded REITs are also rife with conflicts of interest.  Often, non-traded REITs enter transactions with sponsor affiliated parties.  This conflict of interest can have a significant impact on investment performance.  For example, there is a conflict of interest when a non-traded REIT uses advisors and portfolio managers that are affiliated with the same parties that also own the REIT sponsor.  REITs compensate these advisors and portfolio managers through fees that the investors pay.  Sponsors selecting their affiliates to be advisors and portfolio managers and deciding the compensation for the same is a clear conflict of interest.  The advisors and portfolio managers should be selected based on their performance and expertise, and their compensation should be done at arms’ length.

If you have invested in a non-traded REIT, you may have a claim.  Contact us for your free consultation.

Kim Massey
Associate at Gathings Law

Saying NO to YES

For those who are not already familiar, UBS Financial Services, Credit Suisse, Merrill Lynch, and Morgan Stanley, have offered investors the opportunity to engage in an investment strategy known as YES. YES stands for “Yield Enhancement Strategy.” These firms have marketed Yield Enhancement Strategies as a safe alternative to traditional investing strategies to enhance investors’ yield, or income, on their investments. However, Yield Enhancement Strategy investors have suffered significant losses, and continue to suffer.

These Yield Enhancement Strategies result in large fees and commissions for firms like UBS and Credit Suisse because each Yield Enhancement Strategy investment involves multiple call and put options that generate fees. Regardless of how an investor’s portfolio performs, these firms stand to make fees, commissions, or both. 

Yield Enhancement Strategies involve purchasing multiple uncovered short options. Investors hold these uncovered short options if the underlying asset drops in value and an uncovered option if the underlying asset increases in value. This essentially means investors purchase when there is an unexpected market swing and because of an unexpected market swing. This is risky and places investors in the position of deciding whether to let these options merely expire and collect nothing, or to buy stock when most would not advise doing so.

Some of these firms also have offered an even more expensive type of Yield Enhancement Strategy: the “Iron Condor.” Instead of purchasing two options, the investor purchases four options, buying options with strike prices at either end of the anticipated fluctuation range of the underlying assets like in normal Yield Enhancement Strategies, but then also buying options even further out and creating an even wider strike range. These secondary options are supposed to help mitigate the risk, but of course, as with all investments, there is always a risk that things will not go according to plan, and investors are at risk of losing all of the money they put into the Iron Condor Yield Enhancement Strategy.

Why Investors Should Care About the SEC’s and FINRA’s Adoption of the Regulation Best Interest Rule Package and What It Means for Investors

            You would think that if you hire a brokerage firm or broker-dealer to advise you on investments and investment strategies, they would always act in your best interest as the Investor hiring them.  However, that is not always the case.  Sometimes, brokerage firms and broker-dealers advise Investors on various decisions that do not align with the Investors’ goals or are not in their best interest.  The SEC and FINRA have been cracking down on this type of self-serving behavior, which often results in losses for Investors, to ensure that brokerage firms and broker-dealers act in the Investors’ best interest.

            In 2019, the SEC adopted the Regulation Best Interest Rule Package (“Reg BI”).  This adoption demonstrates both FINRA’s and the SEC’s focus on policing brokerage firms and broker-dealers, and ensuring they act in retail customers’ best interests when recommending securities or investment strategies.  Under Reg BI, brokerage firms and broker-dealers may not put their own interests ahead of the retail customer’s interests.  Essentially, in a Reg BI claim, attorneys look for the same information they would when looking into a suitability claim, however, Reg BI is an elevated misconduct standard to suitability.

            Persons subject to Reg BI, such as broker-dealers and other associated persons, have four primary obligations to their retail customer clients: (1) the obligation of disclosure; (2) the obligation of care; (3) the obligation to inform about conflicts of interest; and, (4) the obligation of compliance.

            The obligation of disclosure requires that brokerage firms and broker-dealers make a full and fair disclosure, in writing, of the “material facts relating to the scope and terms of the relationship with the retail customer,” and “all material facts relating to conflicts of interest that are associated with the recommendation,” before or at the time of the recommendation.  17 C.F.R. § 240.15l-1(a)(2)(i). 

            The obligation of care requires that brokerage firms and broker-dealers to use “reasonable diligence, care, and skill” when making the recommendation to retail customers including disclosing and ensuring the retail customer understands the potential risks, rewards, and costs associated with the recommendation while considering the retail customer’s investment profile.  This obligation also prohibits brokerage firms and broker-dealers from placing their own interests ahead of the retail customer’s interests.  17 C.F.R. § 240.15l-1(a)(2)(ii).

            The obligation of care especially resembles the FINRA Suitability Rule, except that the customer specific prong enhances the FINRA Suitability Rule by replacing the word “suitable” with a best interest standard.  Further, the control element of the FINRA Suitability Rule has been removed to prevent such excessive trading that there is virtually no chance for a possible positive return.

            The obligation to inform about conflicts of interest requires brokerage firms and broker-dealers to adopt and enforce policies and procedures, in writing, to, at a minimum, fully and fairly disclose all conflicts of interest. If the brokerage firm and/or broker-dealer cannot fully and fairly disclose all conflicts of interest, the conflict must be mitigated enough to make it possible to disclose fully and fairly. 17 C.F.R. § 240.15l-1(a)(2)(iii).

            The last obligation, the obligation of compliance, requires brokerage firms and broker-dealers to adopt and enforce policies and procedures that are reasonably designed to be compliant with the Reg BI Rule in its entirety.  17 C.F.R. § 240.15l-1(a)(2)(iv).

            Previously, Reg BI-related regulatory exams focused on brokerage firms’ efforts in implementing the new Reg BI.  However, starting this year, the SEC will begin focusing on whether brokerage firms are complying with Reg BI.  FINRA similarly will also begin shifting its focus as well.

Are your Investments in the right hands?

Photo by Burak K from Pexels

As the pandemic marches on, so does the volatility in the stock market. Fortunes are being made, and unfortunately, many are being lost.

While a trader may tell his client that the losses are solely due to a volatile market that is hard to predict, there is little doubt that many of these losses are due to the unsavory practices of some brokers and traders of the type that have occurred throughout the history of the stock market. Our firm is currently handling FINRA arbitration’s to recover these types of losses.

#GathingsLawTalk What Is Mediation?

Divorces can be very complicated and stressful; but they don’t have to be.

The goal at Gathings Law is to help our clients reach a peaceful resolution with their spouses before we roll up our sleeves and play hard ball.

Mediation is one method of reaching a settlement agreement with going to trial.  It is not the same as the collaborative process which will be discussed in another blog.

Mediation is when a neutral third-party, a mediator, is hired to assist you and your spouse in reaching a settlement agreement. The mediator, normally an attorney or retired judge, is not working for either side; they are a neutral party. The mediator doesn’t make the decisions for you but helps to guide spouses toward a solution that is in the best interests of both parties. Mediation allows spouses to reach a mutually beneficial agreement on their own terms, avoid going to court, and is normally less expensive than going to trial.

During mediation, you will have your attorney presnt to help you through the process. Your attorney will be working on your behalf to explain what is happening during the negotiations and the impact of the agreement in your future.

When beginning the divorce process, it’s important to know all the avenues available to resolve your divorce.  If you have questions about mediation or need to talk to a divorce attorney, call Gathings Law. We’re here to help.

As a reminder, on our #GathingsLawTalk weekly series, Gathings Law discusses different legal points of interest every week on our social media. Follow us on social media and tell us what you’d like to hear about next; we’d love to hear from you. Follow @GathingsLaw on Facebook, Twitter, and Instagram. For all things business, follow our business series, #GathingsLawBizTalk, on LinkedIn.

Protecting Your Intellectual Property

Last week on #GathingsBizTalk Gathings Law Co-founder and Senior Partner, Lloyd Gathings, talked about the importance of protecting your intellectual property.

Obtaining trademarks and copyrights for your work is extremely important.

When you develop a new product or a new computer program, it’s very exciting and you’re eager to put it out there and test it out. It’s really easy to convince yourself that putting it out on the internet just long enough for a test run to see what the customer reaction might be won’t cause any problems. Nothing bad will happen. The reality is that this can be dangerous to your livelihood.  

If you have a good product with a good product name, the name needs to be trademarked before any online sampling is done. Likewise, if you’ve written an education program, or something along those lines, you really need to copyright the program before making it public.

Trademarks and copyrights are not that expensive to obtain; they are pocket change compared to the losses you could suffer if someone steals your product name, your brand, or something you have not copyrighted.

Call us before making product of your hard work, creativity, and ingenuity public! We here are at Gathings Law understand the intricate ins and outs of copyright and trademark laws. We have decades of experience helping businesses in the greater Birmingham area and we’re ready to put our expertise to work for you. The initial consultation is free.

As a reminder, on our #GathingsBizTalk weekly series, Gathings Law discusses different legal points of interest in business every week on our social media. Follow us on social media and tell us what you’d like to hear about next; we’d love to hear from you. Click here to follow #GathingsBizTalk on LinkedIn. To follow our other weekly series, #GathingsLawTalk, which discusses personal injury and domestic relations, follow @GathingsLaw on Facebook, Twitter, and Instagram.

Arbitration, What You Need To Know

This week on #GathingsBizTalk, Gathings Law Co-Founder and Senior Partner, Lloyd Gathings, is talking about what you need to know about arbitration.

First and foremost, arbitration is when an unbiased third party is brought into a business disagreement to make a decision for the two parties as a form of alternative dispute resolution. It’s very common for commercial contracts, investment contracts, and stock brokerage contracts to contain an arbitration clause.

Arbitration clauses are enforced by the courts and are seldomly held invalid. Once an arbitration clause is upheld, all future proceedings are before one or more arbitrators. All proceedings from then onward are controlled by the agreed upon arbitration association and their rules.

There are many associations with their own rules for arbitration. A few of the most common are:

  • American Arbitration Association
  • Financial Industry Regulatory Authority
  • International Chamber of Commerce
  • World Intellectual Property Organization
  • National Arbitration and Mediation

Now just because you have to play by the arbitration association’s rules, that doesn’t mean that you don’t have a chance to fight for your best interests during the arbitration proceedings. You just need a lawyer who knows how. If you have a legal dispute that will go to arbitration, give Gathings Law a call. We know how to guide you through the twists and turns of arbitration and we’ll be there for you every step of the way.

As a reminder, on our #GathingsBizTalk weekly series, Gathings Law discusses different legal points of interest in business every week on our social media. Follow us on social media and tell us what you’d like to hear about next; we’d love to hear from you. Click here to follow #GathingsBizTalk on LinkedIn. To follow our other weekly series, #GathingsLawTalk, which discusses personal injury and domestic relations, follow @GathingsLaw on Facebook, Twitter, and Instagram.