Monthly Archives: January 2013

Some Info On Laws On Dental Malpractice In Arizona

What are punitive damages, monetary damages

Punitive damages explained

Most of us are aware with the term medical malpractice and its implications. In some cases, it can prove to be quite fatal and in other cases, the victim may escape unscathed yet shaken. Dental malpractices are similar to medical malpractices in the sense that they both may end up in hurting a patient intentionally or unintentionally due to negligence. Read on to know more about dental malpractices and the various laws in place to tackle them in the State of Arizona.

We will also look in to what are punitive damages? What have they got to do in a dental malpractice case? All these questions will be answered in these few paragraphs given below.

Definition of dental malpractice

Dental malpractice is not vastly different from that of a medical malpractice. In fact, it is a form of medical malpractice, leading to injuries of a patient and is caused by a dentist. Dental professionals vary, from general dentists to orthodontists and if their irresponsible actions led to an injury to a patient, then the patient has the right to sue the dentist for dental malpractice.

Considering the fact that most dentists in the Arizona state are general dentists who are not specialized in a particular field, the state permits them to perform all but the most specialized of dental procedures. Unsurprisingly, most of the dental malpractice cases reported in the Arizona state involve general dentists performing the more complex procedures.

What are the consequences of dental malpractices?

A dentist operates on the sensitive body parts of the patients such as teeth, jaw and mouth, and as such any malpractice or irresponsible behavior from the concerned dentist might result in permanent damage to the patient. This could be particularly problematic if the dentist commits a complex procedure is just a

Punitive Damages Explained

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All About The Exclusionary Rule

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What is the exclusionary rule?

The Exclusionary Rule which was introduced in the Fifth Amendment is a legal principle that does not allow the use of objects which have been obtained either illegally or without a proper search warrant to be presented as evidence before a court of law. For decades, this rule has been stirring controversies in the legal world because a section of legal minds believe that it is unconstitutional and of obstructs the pursuit of truth in a criminal proceeding. But another section is of the opinion that it is an effective way to discourage police misconduct.

History:

The Gouled v. the United States paved way for this rule in the year 1921. The Supreme Court gave the government the right to seize the contraband but it was not allowed to seize property to use as evidence. However, it was not until the 14^th Amendment in the year 1961 that this rule was held to be binding on the states.

Function:

A warrant is required to conduct a search as per the Fourth Amendment. Based on the various interpretations of the meaning of ‘reasonableness,’ a number of exceptions to the warrant have been developed. The function of the Exclusionary rule is to validate evidences collected through unauthorized search and seizure. In the 1960s, the Exclusionary Rule was elaborated to cover various law enforcement procedures like involuntary confessions and wire tapping.

Considerations and exceptions to the exclusionary rule:

Like any other rule, there are certain limitations as well as exceptions to this rule. Exceptions to the exclusionary rule include that the defendant cannot take advantage of this rule to make the case go in their favor in the event that there are other evidences going against them. Evidences can only be suppressed in the event if the search was a violation of the individual’s constitutional rights. Another exception is that the evidence that was illegally acquired becomes acceptable if it was obtained from the defendant by another private individual.

Significance of the Exclusionary rule

Theories/Speculation:

A major reason why the Exclusionary Rule has many takers is because it is a tool designed to protect the people against police misconduct and abuse and government power. They believe that this rule takes away the police and government’s ‘power’ to violate a citizen’s constitutional right.

All in all, this legal principle is an effective tool in the quest for truth and justice. It ensures that the mechanisms to safeguard law and order do not violate them as well!

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How To Avail Punitive Damages In A Car Accident Case

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how to win punitive damages in court

In a car accident, punitive damages are so rarely dished out that they count effectively as an exception, rather than the rule. What are punitive damages? It is seen that they are more oriented towards punishing the defendant if he is proven guilty, unlike compensatory damages, which aim only to reimburse the plaintiff. State laws hold a tight rein over the types of accidents where punitive damages can be won. The general requirement is that the defendant should have acted in a negligent or reckless manner, or with intent to harm the plaintiff that can be proved. Most commonly, car accidents where punitive damages can be availed involve DUI.

What are punitive damages and how does one win them?

Punitive damages are best explained as damages aimed at reforming the defendant, or dissuading him from repeating the act that harmed the plaintiff in the first place.

Find proof that can support a claim that the defendant was driving under the influence of drugs or alcohol, at the time that the accident happened.
Try and bring in proof that the driver harbored the intention of causing you harm through the incident. For this, try and remember if the defendant had hinted malice at any previous occasion as this provides some support to the theory that the act was intentional.
See if you can prove any reckless behavior on the part of the driver at the time of the accident. This entails that you prove more than mere negligence on his part; he must be shown to have intentionally acted with disregard for his own safety or that of others, or both. For example, if he was exceeding the speed limit by much, or allowing himself to be distracted by activities like text messaging while driving at high speed; it shows that he was acting recklessly.
Punitive charges must be claimed for at the beginning of the lawsuit, or else the defendant can later claim that he was not aware of them, and hence had no opportunity to defend against them.
how are punitive damages won?
You must try and win compensatory damages first in order to be awarded punitive damages. The latter is always an extension of the former, which includes pain and suffering, property damage and medical expenses; this is why you cannot claim punitive damages without first attaining exemplary damages.

This is some information about the ways to avail punitive damages in a car accident case. Further information can be learned from online legal database website.

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Punitive Damages In Arizona

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Instances in which punitive damages are awarded

Many people have wondered what are punitive damages. Punitive damages, also known as exemplary damages are monetary compensations that a wrongdoer has to pay the injured party to compensate for the losses that he had to incur. Although the injured party will get financial compensation, the main purpose of awarding punitive damages is not this. The two main purposes for which punitive damages are awarded are given below-

In order to punish wrongdoers for outrageous conduct.
In order to discourage and deter the occurrence of similar instances in the future.

What are the instances in which punitive damages are awarded in Arizona?

Because of the exorbitant amount that has to be paid as damages, punitive damages in Arizona are awarded only in very rare and special cases, where compensatory damages are considered indispensable. But in case an individual is awarded a punitive damage, a considerable amount has to be paid as damages.

Given below are the instances wherein punitive damages are awarded in Arizona:

If it can be proved that the defendant acted with a malicious intent that is with ‘an evil hand and evil mind.’
If the wrongdoer was aware of the wrongness of his action or the action is one that posed considerable risk to harm to other people.
The action is so offensive that it can be considered equivalent to a criminal offense.
There must be strong and convincing evidence about the wrongdoer’s state of mind at the time of action so that it does not leave any trace of doubt that the wrongdoer was aware that their action might be harmful to others, but in spite of this knowledge, they chose to ignore it completely and consciously.

Examples of actions that could lead to a punitive damage:

Actions that could lead to punitive damages

Driving after drinking or driving under the influence of some dangerous drugs are instances of acting with an ‘evil hand or an evil mind.’ A punitive damage may be awarded if they caused an accident while driving under such influences. Committing scams or misrepresenting major truths on purpose can result in disability insurance cases and product liability cases and lead to punitive damages.

Now you know what are punitive damages and the instances wherein such damages are awarded. Recent judgments on the same can interest students of law and established advocates on how such cases are presented and argued in a court of law.

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Where The Exclusionary Rule Cannot Be Applied

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what are exceptions to the exclusionary rule?

In some cases, the evidence obtained unconstitutionally may be exempted from the exclusionary rule. At these times, even if the situation meets the three criteria for the exclusionary rule to apply, the evidence will be admitted into court.

The three exceptions to the exclusionary rule

The first of such exceptions is the Independent Source Doctrine, which was brought into effect by the Supreme Court in 1984. The doctrine applies for two different ways for seizure of evidence; while one is clearly illegal, the other is done from within the confines of the law. For instance, if a person was suspected to be guilty of embezzlement, and someone was to Xerox his financial records without a proper warrant, the copies would not be allowed in court. However, if he later returned with a warrant and copied the records again, the new copies would be exempt from the exclusionary rule.

The inevitable discovery doctrine is the second case where the exclusionary rule is inapplicable. The exception was added following the Nix vs. Williams case in 1984. Of the two different ways of evidence seizure in this exception, only one is physical. The physical means of acquiring the evidence is also illegal, but a hypothesis exists of the seizure, which is not illegal. If a person was murdered and the suspect was illegally made to confess the body’s location, this would be an illegal physical seizure. If the prosecution can show that, there was already an ongoing search for the body when the suspect was thus made to confess, then they can also prove that hypothetically they would have discovered the body even if not for the forced confession; this is the legal hypothetical seizure. If the hypothetical seizure can be shown, then the evidence is exempt from the exclusionary rule by virtue of its being inevitably discovered.

the three exceptions to the exclusionary rule

The last exception to the exclusionary rule is the one of good faith. If a police officer gets a warrant from the magistrate, and subsequently seizes evidence, even if allowing him the warrant was in error, then the evidence will be allowed in court. This is because the exclusionary rule is in place primarily to prevent misconduct by the police, and if the magistrate or any higher body is convinced that such will not take place, the exclusionary rule does not apply in the case.

This is some information on the exceptions to the exclusionary rule. Further information can be referenced from online legal resource websites.

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Punitive Damages And Taxation

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What is the definition of punitive damages

Unlike compensatory damages, punitive damages are not awarded to petitioners in order to compensate for the loss that they had to suffer because of an offence. Instead, punitive damages are awarded to reform or discourage the defendant and others from engaging in offences similar to that, which formed the basis of the lawsuit. These are meant to punish the defendant and hence the amount to be paid is usually higher than the actual losses caused following the offence.

While compensatory damages are paid to help the petitioner recover from various financial losses, punitive damages are in paid in excess and the petitioner will receive all or some portion of the punitive damage reward. Hence, even though compensatory damages are not taxable, punitive damages are. A brief discussion on “What are punitive damages” follows.

Compensatory versus Punitive damages

Compensatory or “actual” damages are the financial damages paid after carefully calculating the total amount of loss following the incident in the lawsuit. However, as explained before, punitive damages are not exact calculations. They are inflated to punish the defendant.

Taxation in Punitive Damages

The Small Business Job Protection Act of 1996 states that all punitive damages are taxable except for the punitive damages awarded in a civil court for wrongful death lawsuit cases. This is to ignore the involvement of financial deductions from the damages awarded following the death of a person. It would be unethical and unjustified to take tax from a case that involves the loss of human life after all.

Taxation in Corporate cases

What are the different types of damages in law

In 2010, the Obama Administration proposed a controversial amendment to the punitive damage taxation law, which stated that corporate companies would not be able to receive tax deductions on the punitive damages they pay to a petitioner. This caused an uproar from companies who claimed that these amounts were used for helping the society in various ways. They stressed on the hardships they were already facing due to recession.

Taxation for Plaintiffs

The punitive damages received by a petitioner following injury or sickness cannot be taxed. This is owing to the fact that physical harm and pain caused to a person cannot be compensated by money. This means that on plain humanitarian grounds, the person who has suffered damages be it emotional or financial, should not be taxed.

Hope the discussion on “What are punitive damages” was easy to understand. Refer law books for the proper definitions of and amendments to these laws.

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Circumstances Where Punitive Damages May Be Invoked

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What are punitive damages, punitive damage claims

When can punitive damages be claimed

As followers of law and readers of newspaper, we come across instances where a lawsuit has been filed against a person or an organization. The charges can be of any type and most of them would be aimed at seeking compensation from the accused. Be it a civil or criminal lawsuit, compensation claims are an integral aspect of law. However, there are times when things might go beyond such claims and would be intended to seek suitable punishment for the act of crime committed by the accused. But there are various aspects to such a lawsuits and it is vital that you understand the nuances of lawsuits seeking such sentences.

What are punitive damages?

Punitive damages are the ones that go beyond just compensation claims and usually takes place when things gets personal. Usually, punitive damages are claimed on top of the general compensation claims which accompany most lawsuits.

So when does a lawsuit seeking punitive damage award? They are usually awarded when the actions of the accused points towards gross and willful negligence aimed at causing injury (of high degree) or death to the victim. Now this is a bit of a complex law. So, if you actually wish to win such a lawsuit, it would be advisable to know what are punitive damages and what are its effects.

When can they be used?

Punitive damages are usually awarded when the accused or defendant is found to have indulged in morally culpable actions that are intended to cause severe harm to the victim or for the society in general.

Punitive damages are aimed at punishing the accused

It’s not just intentional action that qualifies for punitive damages , reckless or gross negligence which causes physical or emotional trauma to the claimant also invite these charges.

However, neither can one claim for punitive damages alone nor can one claim for it unless the basic charges have been proved right. Punitive damages and punishments are awarded only on top of the normal damage claims and must be specifically mentioned in the lawsuit. No matter how serious the case is, New York law for example doesn’t provide for punitive damages by default in its lawsuits and the claimant must mention punitive damage claims on top of the damage claims in their lawsuit to pursue lawsuit for punishing the defendant. Punitive damages are awarded only for those where the sentence should serve as an example for society in order to prevent such heinous crimes from repeating again.

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Cases Where The Exclusionary Rule Is Invalid

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exceptions to the exclusionary rule, evidence admissible in court

what are exceptions to the exclusionary rule?

The Constitution has had many amendments since it first went into effect on March 4, 1789. The fourth amendment to the Constitution makes a provision called the Exclusionary Rule, which dictates that citizens are to be protected against unreasonable searches and seizures. The logic that led to the formation of this rule was based in the need to deter law enforcement officers from obtaining information through illegal means. By extension, police corruption could be brought down, and an individual’s Fourth Amendment Rights could be better safeguarded. There are, however, exceptions to the exclusionary rule, in cases like the following.

When the proof comes from an independent source

In the event that a law enforcement officer enter a premise legally, but without violating the Constitutional rights of an individual, and evidence is obtained, which is not linked to the original entry that was obtained illegally, then this entry will be admitted in court. If it is found that the evidence was obtained in an unconstitutional manner, then it will be exclude from the hearing in a court of law.

If the discovery of the evidence was inevitable

Though it has been ruled by the Supreme Court that evidence that was unconstitutional search and seizure not be allowed in court, evidence that is considered to have been discovered inevitably, would be exempted from such treatment. This holds true even for illegally obtained evidence.

When the relation between the evidence and the illegality is attenuated

If the evidence furnished in the court is shown to be related only very weakly to the illegal circumstances under which it was obtained, this will constitute evidence admissible in court. The reasons for attenuation can be either the duration of time, or other cause of action.

If the evidence was given in good faith

If in the obtaining of evidence the police officer adheres to the outlines of a state statute or local ordinance, which itself is viewed by the Supreme Court as unconstitutional, then the evidence thus obtained is admissible. The emphasis is on the court’s recognition of the fact that the officer acted in good faith, and not with any malicious intent.

some exceptions to the exclusionary rule

These are some of the cases where even unconstitutionally obtained evidence can prove to be exceptions to the exclusionary rule. Further information on this topic would be revealed from various legal resource websites on the web.

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Damages In Civil Lawsuits

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What are punitive damages in reality

A civil suit is filed by a plaintiff seeking relief in the form of liquidated damages to compensate for the loss of person or property. The amount is fixed and awarded to the plaintiff if deemed fit by the court under the given facts and circumstances of the case. It is for the court to determine the quantum of such damages in all cases.

In civil law, the damages may be in the form of compensatory damages, punitive damages, general damages and nominal damages. Let’s elucidate the legal specification of these damages with special reference to what are punitive damages.

Compensatory Damages

In cases involving damage to property or personal injury, the relief granted by the court aims to compensate for all such losses that arise as consequence of the damage caused to the plaintiff. This may include loss of income; repairs to property damaged or even medical bills.

General Damages

General damages are awarded aiming not to compensate for any actual financial loss but sought along with compensatory damages in cases involving pain and suffering, mental anguish, loss of use of property or consortium with spouse and so on. The damages may also be claimed for loss to earning capacity as an event of contingency though not present at the time of filing.

Punitive Damages

What are punitive damages? As the name suggests, punitive damages are used so as to punish the defendant in cases involving negligence or misconduct by defendant in causing damage to the plaintiff. Gross negligence which results in death can result in heavy fines and maybe even imprisonment.

At times, the quantum of punitive damages awarded will be more than compensatory damages and such compensation may be to the tune of millions of dollars if the case involves big corporations.

Nominal Damages

The courts award nominal damages if the damage inflicted on the plaintiff is not of grave nature, but the plaintiff is found guilty of the act. In other words, nominal damages are just nominal compared to compensatory and punitive damages.

Court Expenses and Costs

what are punitive damages and consequences

When filing a suit for damages, the plaintiff includes all incidental costs and expenses borne by him towards filing of such suit under the head, court costs. Filing a civil lawsuit these days is a pretty expensive task and involves fees for filing, processing, deposition, transcripts and so on. The plaintiff is also entitled to include the fees of his attorney from the defendant.

Damages in civil lawsuits is an extensive concept and it demands high proficiency to draft pleadings in claim cases for even slightest error can go against the plaintiff.

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