Delaware Business Lawyer Blog

What’s The Point of Requiring Informed Consent?

Fri, 02 Dec 2011 10:22:25 -0500

Anyone who’s had a procedure done in a hospital has heard of the term “informed consent.” You know, it’s that form they make you sign, and it tells you all of the risks of the treatment you’re going to have. They tell you this because you have the right know all of the information that’s important to a patient who has to decide whether to go ahead with the treatment. But what happens if you decide to have the procedure, and you end up with serious complications? You hire an attorney to find out what your rights are, and you learn that the complications you’re suffering from should have been disclosed to you, but weren’t. Is that enough to file a lawsuit for medical malpractice?

Let’s take a look at an actual lawsuit that was filed by the family of a woman who died as a result of a procedure that she had. It turns out that the doctor failed to inform her that the risk of dying from this procedure was much greater than the risk of dying from general anesthesia. When the family filed a medical malpractice case, they argued that the doctor violated the informed consent law of Delaware.

You might think that to win a medical malpractice case based on a lack of informed consent, all you’d have to prove is that the doctor failed to tell the patient about the risks and alternatives that are important in making a decision whether to undergo the procedure, and that the patient was injured by one of the complications that should have been disclosed but wasn’t.

According to the Delaware Supreme Court, you have to prove one more thing in an informed consent case. And what you have to prove is that a reasonable person, after being told the risks and alternatives that the doctor failed to tell you about, would have decided against having the procedure.

Let’s allow that to sink in. If you have serious complications (even death) from a medical procedure, and the doctor failed to tell you about these complications, you have to prove that a reasonable person would have declined the procedure.

If you think that’s just wrong, then you’d be agreeing with me.

Hospital Says “We Don’t Make Mistakes” But Jury Disagrees

Tue, 15 Nov 2011 10:19:00 -0500

Officials at the Johns Hopkins Children's Center are considering whether to appeal a $250,000 verdict by a Baltimore Circuit Court jury that found the hospital's staff inappropriately restrained a disabled girl, causing extensive bruising.

Brooke Greenberg has a rare genetic disorder. Although 17 tears old, she is the size of a toddler. She ways less than 20 pounds. She can’t communicate, and she’s been diagnosed with numerous medical conditions, including cerebral palsy and epilepsy. There have been numerous times throughout her life when she’s received treatment at Johns Hopkins Children’s Center. In 2007, Brooke had to spend the night at Johns Hopkins. The next day, her father discovered a large bruise on her forehead, as well as a lot of bruises on her arms and legs.

When Brooke’s father asked the hospital staff what happened, they had no explanation. Instead, they arrogantly told him that at Johns Hopkins, they don’t make mistakes. Because her father wanted answers, he hired an attorney and filed suit.

At the conclusion of the trial, the jury decided that Brooke had been restrained inappropriately, and that this was the cause of the bruises. The jury awarded Brooke $250,000 due to the hospital’s negligence.

Parents Who Make Loans To Children Must Insist On Getting Signed Documents

Sun, 09 Oct 2011 17:28:45 -0500

Your adult child tells you she is having money problems and she asks to borrow money. Being a loving parent, you give her a check. Was this a gift or a loan? Are you expecting to be repaid in the future when your child's financial situation improves?

Let's assume it's a large amount of money, and you've been reading about the importance of having signed documents for family loans. So you mention to your child that it's time to sign something, and to your utter surprise, your child says it was a gift.

After agonizing about it, you decide to hire a lawyer and file a lawsuit to recover this money. In most lawsuits, a person who lends money to another person must prove it was a loan. The proof you have to submit in order to win must make the judge or the jury believe it's more likely that not that this was a loan rather than a gift. This means you must tip the scales ever so slightly in your favor, for example, 51% to 49%.

But if the person you loaned the money to is your child, the burden of proof is much higher. You now have to provide "clear and convincing evidence" that it was a loan. Why? Because the Court will presume that the transfer of money from a parent to a child is a gift.

Therefore, be sure to protect yourself and your spouse by having your child sign what's known as a demand note.

Lis Pendens In Delaware

Sat, 13 Aug 2011 18:11:44 -0500

Here’s the situation. You filed a lawsuit in Wilmington, Delaware claiming to have an interest in a property owned by the person you’ve sued. Assuming you win, you’ll have a judgment against the defendant, and that judgment will automatically be a lien on all real property which the defendant owns in New Castle County. Lawsuits can take a long time, however, and you’re concerned that the defendant could sell the property before you get your judgment. Wouldn’t it be great if there was a way to notify all prospective buyers of the defendant’s property that you have a lawsuit pending that could affect the ownership interest in the property even if they were to become the owner?

Fortunately, a procedure like this exists. It’s usually referred to as a “Notice of Lis Pendens.” Although the procedure is simple, the following steps must be taken:
(1) Record the Notice of Lis Pendens in the Recorder of Deeds office.
(2) Send the defendant a copy of the notice that you recorded.
(3) File an affidavit in the Court stating that you complied with step 2.

Lis Pendens is governed by a statute, and so your attorney must be aware of all of the statute’s requirements.

Car Accidents, Injuries, and "IME's"

Sun, 31 Jul 2011 15:05:33 -0500

If you ever get involved in a car accident lawsuit, sooner or later your attorney will let you know that the defense lawyer has scheduled you for an "IME." Insurance companies and defense lawyers refer to this as an "independent" medical examination. In reality, there's nothing independent about it. The doctor who will be examining you is far from independent, He makes a substantial income from insurance companies by examining injured plaintiffs and writing reports that are used to minimize the extent of the injuries or deny their existence.

The written reports of these examinations, which I call defense medical examinations ("DME"), can be successfully challenged by an experienced plaintiff's lawyer. This challenge starts before the examination takes place. The plaintiff's lawyer should meet with the plaintiff before the date of the examination in order to explain what to expect.

This experience will not be like the exmainations you've had in the past where you're seen by a doctor who takes care of you. This examiantion is usually done very quickly. For this reason, it's helpful if you could write down a few things about your experience that you can share with your attorney. Included in your notes should be:

1.What time did you arrive at the doctor’s office?
2.What time were you taken into the examination room?
3.What time did the doctor came into the room?
4.What time did the actual examination start?
5.What time did the examination end?

Interestingly, most of these DME doctors will not allow an injured plaintiff to bring a tape recorder into the examination so that there will be an accurate record of what was said and done. I wonder why?

Car Accidents, Photos and Delaware Courts

Fri, 15 Jul 2011 15:01:48 -0500

In Delaware car accident cases, photos that show minor damage to the injured party’s car cannot be used to persuade a Delaware jury that the injuries must also have been minimal. The reason for this rule is that it’s well known by experts that there is not necessarily a correlation between the damage to a car and the extent of the injuries sustained by an occupant of that car.

If you think about it for a moment, the rules make perfect sense. Anyone who buys a carton of eggs will tell you that even if the carton looks perfect, they never buy the eggs unless they open it up to see whether any of the eggs are broken.

The fact is that you can have a crash where the car is badly smashed up and the people inside get out and walk away without any injuries. In the same way that photos of that car should not be used to prove serious injury, photos from a fender bender should not be used to prove little or no injuries.

Can You Get Paid For Your Services When You Didn't Have A Contract?

Sun, 10 Jul 2011 19:32:50 -0500

What if you performed services for someone who refuses to pay you, and when you file suit to collect, they claim they don’t have to pay because there was never a contract between you? You’d be surprised how often this happens. If you can prove the existence of a contract, the Court will award you damages for breach of contract. If, however, you can’t prove the existence of a contract, all is not lost. Under the doctrine of quantum meruit, you can still get paid for the value of the services you provided.

In order to win a breach of contract claim, there are 3 things you have to prove.
(1) the existence of a contract
(2) the breach of an obligation under the contract
(3) damages caused by the breach.

As to the first issue, it might sound strange that 2 people can’t agree on whether a contract existed, but there have been a lot of lawsuits over that single question. How to prove the existence of a contract is a subject for another day. This article’s focus is instead on how to collect for your services when you can’t prove a contract existed.

The first thing you have to prove under a quantum meruit claim is that you provided a service or materials (or both) to the other party. Next, you must prove that the other party accepted your services or the materials. And last, you have to show that the person you provided services or materials to knew or should have known that you expected to be compensated. Assuming you can prove these elements, the Court will award you the reasonable value of the services or materials provided.

Suing Home Repair Contractors in Delaware

Mon, 04 Jul 2011 16:29:15 -0500

We read about this in the newspapers all the time. A homeowner hires a contractor to install a deck, build an addition, remodel the home, etc. The contractor doesn't finish the job, or if he does, the homeowner is horribly disappointed in the quality of the work. The homeowner refuses to pay the balance that was due upon completion, and the contractor threatens to file a lawsuit to collect the rest of his money.

Here's what happened in a recent lawsuit. A landscaping company and a homeowner entered into a contract to have a brick patio installed. The contract unfortunately was very vague in that it didn't have a completion date, and said little or nothing about dimensions or the materials to be used. Before the work was started, the homeowner paid a deposit to the contractor. When the patio was completed, the contractor charged the remaining balance to the homeowner's credit card. However, the owner was worried that there wasn't enough sand under the patio, and so she asked the contractor to come out and inspect. Although he agreed to meet at the house, he failed to show up, and the owner placed a stop payment order on the final payment.

The contractor sued the homeowner, and the case went to trial. The contractor claimed that his work was satisfactory. According to the Court, even if a contact doe not contain any warranties, under Delaware law there is an implied builder's waranty of good quality and workmanship. Because this contractor held himself out as a competent contractor, there is a presumption under the law that he possesses the skill needed to perform the work, and imposes a requirement that the work be done in a skillful and workmanlike manner.

In deciding whether the contractor's work was performed in a workmanlike manner, the Court applies the following test: Did the contractor display the degree of skill or knowledge usually possessed by others in his profession.

The fact that the contract was vague came back to haunt this contractor because under Delaware law, every building contract is conditioned on the requirement that all laws and regulations are complied with. The only exception is where the contract specificaly contains language establishing a different measure of performance. The Court found that the patio did not comply with the building code, and hence the contractor was found to have breached the contract.

Is Your Child Being Bullied In School?

Mon, 27 Jun 2011 11:01:30 -0500

Most anti-bullying laws require that schools report all acts of bullying that occur in the schools. After all, if bullying is not reported, how can anyone know if the anti-bullying laws are working? A major problem appears to be that teachers and school administrators either tolerate acts of bullying or fail to recognize when bullying occurs. In Iowa recently, for example, a parent was getting no satisfaction at the school level after she complained that her child was being bullied. So this mother decided to start emailing the school board, and she was relentless. Believe it or not, here’s the response she received from the president of the school board:

"We do not need your scathing emails to this board and administration about how little we are doing!!!! WE ARE WORKING ON IT!! Do you understand? As far as the cyberbullying, I would equate this to passing around notes in school back before there was (F)acebook. ... Even if the princip(als) hold an assembly and tell the kids not to cyberbully, you really think they are all going to, magically, not do it any more. Please, be a little more realistic than that."

The mother took her child out of that school district and had him go to school in a different school district.

Adults who hold responsible positions in the schools and school districts must take bullying more seriously. No child should fear going to school. No child’s parents should have to worry for their child’s physical and mental well-being when they send their child off to school in the morning.

If you’re the parent of a child who is being bullied at a school in Delaware and your pleas for help are falling on deaf ears, it’s probably time to seek out an attorney who can be your advocate and your child’s advocate.

Incorporating in Delaware - Can you Really Get By Without An Attorney?

Fri, 03 Jun 2011 13:44:04 -0500

I was listening to the radio this morning on the way to work, and a commercial came on for a company that helps small businesses with incorporating. Among other things, they said you don’t need an attorney to incorporate, and that by incorporating, you’ll protect your personal assets. Well, it’s true that you can incorporate without an attorney. But it’s also true that you can try to run across a busy street with your eyes closed. Of course, you may not reach your destination by closing your eyes before stepping into traffic. The same holds true for incorporating without an attorney.

Anybody can incorporate. Fill out a one page form you can download, attached a check, and mail it to the Division of Corporations. Very, very easy. But, if you don’t have an attorney, and all you do is incorporate, you’re actually setting yourself up to be held personally liable for your corporation’s debts. That’s right. Unless you adhere to all of the formalities required by law, your personal assets will NOT be protected.

Think of a bullet proof vest that’s worn to protect a cop. Now think of a corporate veil that protects your personal assets. Well, in the same way a criminal can use armor piercing bullets and injure the cop, the corporate veil can be pierced to get to your personal assets if you incorporate without an attorney and don’t know about all of the formalities you have to deal with.

In a future article, I’ll talk about these formalities. In the meantime, if something sounds too good to be true, it usually is.

Jury In Wrongful Death Case Awards $7 million

Mon, 30 May 2011 19:31:07 -0500

What’s the value of a human life? Last week, in a medical malpractice case, a jury in North Carolina decided it was $7 million. Here's what happened.

A 54 year old woman went into the hospital for what was supposed to be a routine hysterectomy. A one night stay in the hospital was all that was required.

The day after the surgery, the patient was sent home right on schedule, despite the fact that she had an elevated white blood count and was complaining of pain. Later the same day, she sneezed and was in so much pain that she had to go back to the hospital (the hospital was an hour and a half w]\away from home). It turns out that her bowel had been perforated by the surgeon during the hysterectomy, and it had gone unnoticed. The perforation was not discovered for another 80 hours, and by that time, she had developed sepsis and multipe organ failure.

What happens when a bowel is perforated and not discovered is that the contents of the bowel end up spilling out into the abdominal cavity. This is exactly what happened to this patient.

While the perforation should not have happened, the real departure from the standard of care occurred when the perforation and the sepsis went unnoticed for so long even though there were obvious signs that she had an infection and bowel perforation.

Sepsis is a blood infection caused by bacteria in the bloodstream. It causes your blood pressure to drop, and in turn the vital organs start to shut down.

During the trial, the jury learned what a remarkable woman she was. For example, while she was in her 30's, she decided to enroll in special education so she could learn why her son had trouble reading and writing. She graduated at the age of 40 and became a special ed teacher.

And it was not lawyers or plaintiffs who put a value on this woman's life. It was a jury of citizens.

All Acts of Bullying In Delaware Schools Must Be Reported

Mon, 23 May 2011 11:27:30 -0500

According to the U.S. Department of Justice, “Bullying may be the most under-reported safety problem in American schools.” I wholeheartedly agree. If the schools in Delaware don’t report all acts of bullying to the school district, that makes it impossible for the school district to accurately report bullying incidents to the State Department of Education. This, in turn, prevents the DOE from accurately measuring how effective or ineffective their bullying prevention programs have been. But rather than blame the schools, it is the school districts that have the duty of closely monitoring the schools to make certain that the bullying prevention programs are being adhered to.

Questions that each school district must ask on a regular basis are:

(1) how should we measure the effectiveness of our anti-bullying programs.

(2) what sensitivity, psychological or other training should school teachers and administrators receive to help them understand the risk factors and warning signs associated with bullying, and the investigation and response to allegations of bullying

(3) what records should be maintained regarding investigations and responses to allegations of bullying

Until these questions and others are properly addressed, bullying in our schools will continue to be under-reported.

Signing a Contract to Buy New Construction in Delaware

Sat, 30 Apr 2011 14:59:49 -0500

When a husband and wife who are looking around for a new house find one they like, the next step is to make an offer. The offer usually takes the form of a standard agreement of sale that their real estate agent helps them with. They sign the agreement and their agent submits it to the seller’s agent, who in turn takes it to the seller to accept or reject. If the seller isn’t happy with any of the terms in the offer, both sides are free to negotiate until they reach an agreement they both can live with.

New construction is quite different. If the same couple decides to have a house built, the builder presents them with the builder’s form of contract to sign. The terms are usually one-sided, and there’s not much room for negotiating the terms. As a Delaware real estate attorney, let me share with you a few examples.

A common provision in a builder’s contract gives a tentative settlement date, but goes on to say that the date of settlement will be extended in the event of unforeseen issues or other problems beyond the control of the builder. Most people read this language and sign the contract without giving it any further thought. They assume that the house will be ready by the settlement date, and if it’s not, any delay will be short. That’s not necessarily a good assumption.

Let’s take for an example a contract that says the newly built house will be ready by November 4, 2011. As this date draws near, the buyers start making all kinds of plans. They arrange for a moving company, they contact the utility companies, and they may even schedule people to come in right after the settlement. In addition, they also lock in the interest rate with their mortgage company.

The first question, therefore, is how much notice should the builder give you if settlement has to be delayed? Would you be okay if the builder calls a few days before the settlement date to tell you there will be a delay? The builder’s contract probably does not provide how much notice you are entitled to. If notice is important to you, ask the builder to add this to the contract.

The contract should also have what I call a “drop dead” date. In other words, if the builder is not ready to go to settlement by that date, you as the buyers should have to right to terminate the contract and get back your deposit. To be clear, I’m not suggesting that the builder should have any liability for a long delay. What I am saying is that you shouldn’t be required to put your life on hold for an unreasonable period of time. In the above example, the settlement date in the contract is November 4, 2011. How long can the delay be before you want out of the deal? What if the house isn’t ready by January, or March, or the following November?

If the builder is unwilling to insert a drop dead date, maybe you should think about working with a different builder. And this brings me to my final point. What if you talk to the builder’s representative, who very nicely tells you that you don’t need to worry because if the delay is too long, the builder will let you out of the contract? This sounds fine until you read another provision in the contract that says the written contract contains the entire understanding between you and the builder, and you are not relying on anything else that anyone has told you or that you may have read. The lesson to be learned is that if it’s not written in the contract, that’s the same as if you never heard it.

Builders' contracts are not as simple as they might seem. Buyers can read them and understand the language, but what buyers don’t realize is what’s missing from the contract that should be there for the buyers’ protection.

What Exactly is Bullying Under Delaware Law?

Fri, 22 Apr 2011 10:46:33 -0500

School bullying can be physical, verbal, written, electronic, or any combination of these types of actions. In Delaware, whether certain actions constitute bullying depends on a “reasonable person” standard. For instance, a particular action is considered bullying if, in the opinion of a reasonable person, it would place a student in fear of:
(1) substantial harm to her physical well-being
(2) substantial harm to her emotional well-being or
(3) substantial damage to her property

An action is also deemed to be bullying if a reasonable person believes that its pervasiveness or persistence has the effect of creating an educational environment that is:
(1) hostile
(2) threatening
(3) humiliating or
(4) abusive

Another form of bullying in Delaware is where one or more of these actions interferes with the student having a safe environment while at school.

After speaking with parents of students who have been bullied, it seems to me that educators at both the school and district level have a problem distinguishing between acts of bullying and situations where kids are just being kids. Maybe the problem is that school administrators don’t get the fact that what used to be tolerated as kids just being kids should no longer be tolerated. Due to this mentality, school administrators are turning a blind eye to acts of bullying.

Here are some real life examples of what’s happening to our children in the schools.

In one case, a student was often thrown into a trash. He was also placed upside down in a toilet bowl, and had his head flushed several times. On another occasion, he was stripped nude, tied up, and again placed into a trash can.

In another case, a girl student was frequently called a “slut” by other girls, and a male student sitting next to her in class and would stick his hand down her pants. School officials actually observed this behavior and looked the other way.

A gay student was constantly being called names like "fag," "butt pirate," "fairy," and "homo." Other students lassoed him around the neck and suggested dragging him behind a truck.

Many victims of bullying live in constant fear for their safety. Their schoolwork suffers and their grades fall. Their health also deteriorates. Isn’t it time for school officials to take action to protect our kids when they’re in school?

Contracts In Delaware - What’s The Significance of a Seal?

Tue, 22 Mar 2011 18:35:43 -0500

In Delaware, the statute of limitations for breach of contract is 3 years. Under Delaware law, however, “specialty contracts” have a 20-year statute of limitations. A specialty contract is one that is under seal. To be under seal, all that’s needed is word “SEAL” to the right of your signature. The document itself does not have to contain language indicating that it was your intention to sign under seal. The signature line would look like this:

______________________________ (SEAL)
CHARLES SNYDERMAN

Another significance of signing a contract under seal is that the person who signed it cannot challenge the validity of the contract based on a lack of consideration. To put this in context, consideration is one of the essential elements needed in order for a contract to be enforceable.
Consideration is something given by one party to a contract in exchange for something given by the other party. Here's an examples that helps explain the concept of consideration.

Let’s say you’re already working for an employer. The employer asks you to sign a non-compete agreement, which you do. Later, you resign and start working for a competitor. Your employer sues you for breaching the non-compete agreement. The Delaware courts have ruled that once an employment relationship has been established, a subsequent agreement by the employee not to compete has to have consideration to be enforceable. In other words, the employee must receive some form of compensation in exchange for signing the non-compete agreement. The compensation can take different forms, including such things as a salary increase, a promotion, etc.

If there’s a lack of consideration, there was no contract in existence unless the contract was under seal.