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Making Healthcare Decisions for Children of Divorce

Making Healthcare Decisions for Children of Divorce

When there is a divorce involving children, the parents often have vehement disagreements about various parenting issues. One of the most common areas in which parents may not see eye to eye is with the health care decisions that must be made. Before the divorce is finalized, they might be able to agree on whose health insurance policy the children will be under, but when a specific issue arises, they often have different ideas about how it should be addressed.

Sole vs. Joint Custody in Virginia

The first consideration when there is a disagreement about a health care decision on behalf of the child is which parent has custody. There are two different types of child custody; physical custody and legal custody. Physical custody addresses which parent the child lives with primarily, and how often the non-custodial parent is able to visit the child. Legal custody deals with the ability of parents to make major decisions that affect the child. Healthcare decisions would fall into the area of legal custody, because it would be in the “major decision” category.

When One of the Parents Has Sole Legal Custody

If one of the parents has sole legal custody, then they are able to make decisions about routine medical care (e.g., physicals, dental checkups, eye tests, etc.) without consulting the other parent. In addition, either parent can make a decision about emergency medical care while the child is with them. However, if this is the parent who does not have sole legal custody, he or she must inform the other parent about the medical treatment the child received as soon as it is reasonably possible.

When Parents have Joint Legal Custody

It is becoming increasingly common in Virginia and throughout the country for parents to share legal custody of their children. The default position of the family courts is that it is generally in the best interests of the children for both parents to be involved in their lives. So, even in situations where one parent has primary physical custody of the child, they often have joint legal custody; giving them equal decision-making authority over areas such as education, religious upbringing, extra-curricular activities, and health care. 

In some cases, one parent may be given final decision-making authority over certain areas, with other areas going to the other parent. For example, if religious upbringing and education are more important to the mother and the child is on the father’s health insurance policy, the mother may decide which religion the children will be brought up and which school they will go to, while the father may to have decision-making authority for medical treatment.

In many joint custody arrangements, however, the areas of decision-making are not as well-defined, and it is expected that the parents will consult each other and work cooperatively and in keeping with the child’s best interest. And while they might start out with this intention, specific situations may come up in which a major disagreement may arise.

When the Parents Can’t Agree on Medical Treatment

Disagreements over healthcare decisions can lead to a standoff between two parents with the equal decision-making authority, putting professionals who are just trying to do their jobs in the middle of a parenting dispute. For example, the child injures his arm playing football. The mother wants the child to have surgery, but the father wants to pursue other treatments. Both have consulted equally-competent medical professionals who support their point of view.

How does this situation get resolved? Most likely, in one of two ways; the parents either work together to reach a solution both of them can live with, or one of the parents (probably the mother in this case) petitions the court to obtain full legal custody so she can go forward with the surgery. When the court gets involved, the results are unpredictable, and they depend largely on the viewpoint of the judge presiding over the case and the strength of the arguments presented by both sides.

Involved in a Child Custody Dispute in Virginia? Contact an Experienced Family Law Attorney

Parents with joint legal custody should be committed to working together to decide important parenting matters (based on their children’s best interests). And before going back to court, they should exhaust all other avenues and try to work out any disputes on their own. That said, there are times when there is little choice but to petition the court for a modification of the current custody arrangement. When that situation arises, you need strong legal counsel in your corner advocating forcefully for your rights and interests, and for the best interests of your child.  To schedule an initial consultation with the seasoned family law attorneys at Olmstead & Olmstead, call us today at 703-361-1555. You may also message us through our web contact form or visit our Manassas, VA office in person at your convenience.

Nursing Home Abuse

Three Commonly Missed Signs of Nursing Home Abuse

America’s nursing homes are in crisis. According to an ABC News report from the early 2000s, elder abuse occurs at one out of every three nursing homes in the United States. Since that report first came out, things have gotten far worse. Aging demographics and longer life expectancies have greatly increased the need for long-term care among America’s seniors, and at the same time, there has been consolidation in the nursing home industry, and those facilities that remain have experienced major staffing shortages.

Today, it is believed that as many as five million seniors are abused each year, and nearly one out of every four nursing facility residents has experienced physical abuse at least once while living in a nursing home. Sadly, these are most likely conservative estimates.

The vast majority of elder abuse cases never get reported at all, and it is easy to understand why. Seniors living in nursing homes depend on their caregivers for everything. Most of them fear that if they report something, they may not be believed – in which case, nothing would likely be done about it. This would mean remaining under the care of the same abuser, and the fear that there would be retribution for trying to report the wrongdoer’s behavior.

Most Common Types of Nursing Home Abuse

There are many ways seniors are abused in nursing homes, and this happens in varying degrees of severity. Nursing home abuse can be divided into five general categories:

Neglect

One of the most common ways elderly individuals are abused at nursing facilities is through general negligence. Whether intentional or unintentional, many nursing homes fail to provide for the basic needs of their residents. Much of this is the result of severe staffing shortages and lack of proper oversight. Oftentimes, nursing home residents are left unattended for long periods of time, and workers fail to ensure that they receive enough food and water, fail to regularly bathe residents, fail to keep their rooms cleaned, and fail to attend to other specific needs they have.

Physical Abuse

Physical abuse is causing intentional bodily injury or trauma to a nursing home resident through acts such as slapping, hitting, punching, striking, kicking, pushing, shoving, grabbing, and unreasonable restraint. Physical abuse is usually perpetrated by nursing facility staff, although sometimes, the perpetrator may be another resident or in rare instances, a family member.  Nursing home residents who are physically abused can end up with severe and life-threatening injuries that often require immediate medical attention.

Emotional Abuse

Emotional abuse is the use of words or carrying out of actions that are meant to cause fear, distress, or psychological trauma to a nursing facility resident. Examples include name calling, insults, threats, isolating residents from other residents or their family, and similar acts.  Emotional abuse can cause long-term psychological damage to a resident.

Sexual Abuse

As hard as it is to imagine, sexual abuse happens more often in America’ nursing homes than most people want to believe. This may include acts such as unwanted feeling, touching, groping, all the up to full sexual assault. As with other forms of abuse, the perpetrators are most often staff members, though they could also be other residents. Those with cognitive conditions such as Alzheimer’s and dementia are the most likely targets for this type of abuse, because perpetrators believe that individuals with these conditions are the least likely to report the abuse.

Financial Abuse

Financial abuse includes any attempt to manipulate or exploit a resident in order to gain control over their finances. This usually happens when a staff member befriends a resident and tries to gain their trust in order to obtain access to their finances. Financial abuse may also be perpetrated by another resident or family member.

Commonly Missed Signs of Nursing Home Abuse

Because residents are not likely to report nursing home abuse, it is important for those closest to them to look for signs that this might be occurring. Here are three signs of nursing home abuse that are often overlooked:

  • Slick-Talking Caregivers: If your loved one has scars, bruises, sprains, and more serious physical issues and there is no explanation for these, this is a serious red flag. In addition to that, if the caregiver or staff member is not giving you a straight answer or deflecting your question, this is definitely a cause for concern. Many abusers are very good at covering up what they are doing by sounding friendly and giving slick explanations. If the explanations the staff members are giving you do not add up, then this situation may warrant further investigation.
  • Confusion or Disorientation: If your loved one is confused and disoriented when you come to visit, this could be a sign of physical exhaustion due to the abuse they are receiving. This could also be the sign of other health issues, however. If you notice these symptoms, it is important to look at other factors as well to see if this is a sign of abuse.
  • Ambivalence or Withdrawal: If a loved one is being abused, you may start to see emotional changes such as becoming isolated or withdrawn from other facility residents. While this could be a sign of abuse, but it could also be a sign that they are just not happy with their living conditions. Again, you need to look at what else is happening to help determine if abuse may be occurring.

Do you Suspect Nursing Home Abuse in Virginia? Contact an Experienced Personal Injury Lawyer

If you believe that your aging loved one is being subjected to abuse in a Virginia nursing home, it is important to take immediate action. You can report nursing home abuse to the Adult Protective Services (APS) division of the Virginia Department of Social Services by calling 1-888-832-3858. It is also a good idea to contact a seasoned nursing home abuse attorney to discuss your legal rights and options. At Olmstead & Olmstead, we are outraged by the treatment many of our seniors are receiving in nursing homes today. We are committed to obtaining justice for those who are experiencing abuse, and we work closely with our clients to help ensure that those responsible for this type of conduct are held fully accountable. Call our office today at 703-361-1555 or message us through our web contact form to schedule a free consultation.

What are My Rights as an Unwed Parent in Virginia?

When a child is born to an unwed mother, the father has no legal rights initially. Without being married to the child’s mother, there is no automatic presumption under the law as to who the father is. For unmarried fathers to establish parentage, the father must voluntarily declare his paternity in writing, and if it is disputed, prove he is the father through a DNA test.

Voluntary Acknowledgement of Paternity

If there is no dispute between an unmarried couple that they are both parents of a child that is being born, the easiest way for the unmarried father to establish parentage is to fill out a Voluntary Acknowledgement of Paternity (AOP) at the hospital at the time of the child’s birth. There is no cost to execute an AOP form at the hospital, and it does not impact any government benefits that either parent may be receiving. By executing and an AOP form at the time the child is born, the father’s name can be added to the birth certificate right away.

If you did not execute an AOP form at the hospital or birthing center, the form can be filed later with the Virginia Office of Vital Records for a small fee. Once the AOP form is properly filed, you become the legal father of the child, and your name is added to the child’s birth certificate.

Involuntary Establishment of Paternity

If there is any dispute about who the father of the child is, establishing paternity may require a court action. A Petition to Establish Paternity can be filed with the appropriate court by the mother, father, child, or the state of Virginia (if the child is receiving public assistance). For example, if the petitioner claims to be the father and the mother denies this, the petitioner can request that the court orders DNA testing.

DNA samples are taken from the mother, alleged father, and child and taken to a laboratory for analysis. This can establish with nearly 100% certainty whether or not the man being tested is the father of the child. If paternity is successfully established, the father may be required to pay child support, but he may also petition the court for child custody and visitation rights.

Child Custody and Visitation for Unwed Parents in Virginia

In many states, when there are unmarried parents, the default position of the court is to give custody to the mother unless the father takes action to gain custody. In Virginia, once paternity is established, the courts do not favor one parent over the other. Instead, they look at the best interest of the child.

That said, the court does give a lot of weight to the current situation, and who the primary caretaker of the child is now in determining who should have custody. So, assuming the mother is currently the caretaker of the child and has been for a while, the father would have to prove that she is not a good parent in order to take custody away from her.

If you have established paternity early on in the child’s life (e.g., within the first few years) it may be possible to obtain shared custody or at the very least, liberal visitation rights. Shared custody refers to physical custody of the child, and this is a co-parenting arrangement where both parents have the child for at least 91 days of the year.

There is also the matter of legal custody.  This refers to which parent has the right to make important decisions on behalf of the child; such as in the areas of healthcare, education, religious upbringing, and extracurricular activities. Parents may have joint legal custody, in which they must confer with each other on these important decisions, even if one parent has sole physical custody.

Speak with an Experienced Family Law Attorney

Unwed parents, especially fathers, face some challenges when they want to be involved in the lives of their children. Establishing paternity can be a complicated process, especially if it is disputed. And once paternity is established, you will often need to go to court to petition for custody or visitation rights.

At Olmstead & Olmstead, we understand the frustrations unmarried parents often face when they are trying to do what’s best for their children. We work closely with our clients, putting our experience to work to help them develop the most practical, effective, and cost-efficient legal solutions.   Call us today at 703-361-1555 to schedule a consultation. You may also message us through our web contact form or visit our office in Manassas, VA at your convenience.

Accident Damages

How are Damages Calculated in Accident Cases?

When an individual suffers moderate to severe injuries from an accident, it can be a life-altering experience. High medical bills combined with time missed from work can create a financial hardship for victims and their families, and the physical and emotional pain an injury causes can put additional strain on the household. When an injury results from the negligence or reckless actions of another party, victims deserve to be compensated. The legal term for this is called “damages”.

Compensatory damages in personal injury cases can be divided into two general categories; economic damages and non-economic damages.

Economic Damages

These are losses incurred by the injured party that are quantifiable. Such as:

  • Property Damage: In most accident cases, there is some property damage that accompanies the injuries. The most common example is with an auto accident case in which the vehicle the injured party was driving is damaged.
  • Medical Costs: Various types of medical expenses may be incurred depending on the type and extent of the injuries. For more severe injuries, there may be hospitalization costs, cost for surgeries and/or various other medical treatments, rehabilitation costs, and costs for ongoing medical care (when there is a debilitating injury).
  • Lost Wages: When someone suffers an injury, they may have to miss work for medical appointments, and depending on the type of work they do, they may be out of work for a while during their recovery period.
  • Loss of Earning Capacity: When someone suffers a debilitating injury, they may not be able to return to their previous job. And in the most serious cases, they may not be able to participate in any type of gainful activity at all.
  • Funeral and Burial Expenses: In the case of an accident that results in a fatality, the victim’s family should be compensated for funeral and burial costs.

Non-Economic Damages

These are intangible losses that are more difficult to quantify because they have to do with the impact the injury has on the victim’s life, and the life of their loved ones. Non-economic damages may include:

  • Physical Pain and Suffering: A serious injury can cause extreme physical pain, and oftentimes, the victim must endure this pain for an extended period of time. If the victim suffers a long-term debilitating injury, the pain and suffering may be permanent.
  • Psychological Distress: Having to adjust to life after a severe injury can be very hard on someone emotionally. Uncertainty about the future, wondering how long the injury will last, how long they will be in pain, when they can return to work (if ever), and similar worries can cause an enormous amount of stress, anxiety, and sleepless nights.
  • Loss of Enjoyment: Some injuries deprive the victim of their ability to participate in physical activities they once enjoyed; such as running, hiking, biking, swimming, and other hobbies or recreational pursuits.
  • Loss of Consortium: This relates to the losses suffered by someone close to the victim, such as loss of the ability to maintain an intimate relationship with your spouse.  Loss of consortium damages are sometimes awarded directly to the loved one who is affected.

Punitive Damages

In rare cases when the actions of the party responsible for the accident were especially egregious, punitive damages may be awarded to punish the wrongdoer and help deter them (and others) from engaging in similar behaviors. To be awarded punitive damages, it must be shown that the responsible party acted with willful and wanton conduct or actual malice toward the victim.  Punitive damages in Virginia are capped at $350,000.

Pursuing Damages in Virginia Accident Cases

Recovering compensation for injuries suffered after an accident in Virginia can be very difficult because of the state’s “contributory negligence” legal standard. Under contributory negligence, an injured party can be barred from recovering damages if they are found to have “contributed” in any way to the underlying accident.

This is a very high bar to clear, and even being found 1% at-fault can be a barrier to obtaining the just compensation you deserve. For this reason, it is absolutely essential to work with a skilled personal injury attorney who understands Virginia law and has a proven ability to successfully pursue damages on behalf of injury victims in these types of cases.

Injured in an Accident in Virginia? Call the Seasoned Personal Injury Lawyers at Olmstead & Olmstead

If you or a loved one has been injured in an accident, it is important to act immediately to protect your legal right to recover compensation. Call Olmstead & Olmstead today at 703-361-1555 for a free consultation. You may also send us a message through our online contact form.

Full and Fair Settlement

Negotiating a Full and Fair Settlement

When an individual suffers an injury from an accident or another event and someone else was at fault, they deserve to be compensated. Unfortunately, obtaining full and fair compensation is much easier said than done. In most cases, the party that was responsible for your injuries is not going to willingly write you a check for full damages. In fact, you will most likely not even be dealing directly with the other party. Instead, you will be dealing with their insurance company.

Shortly after an accident, those involved are typically contacted by the adjuster for the other party’s insurer, or in some cases, you might be dealing with your own insurer (such as when the other party was uninsured). You might be offered a settlement by the adjuster early on in the process, but it will probably be for much lower than what your case is worth. To secure just compensation for your injuries, it will most often require a negotiation.

Negotiating a full and fair settlement with an insurance adjuster can be a challenging process.  You can choose to deal with the adjuster on your own, or you can retain the services of a personal injury lawyer to negotiate a settlement for you. If you decide to deal with the insurance company on your own, the process could take as little as a few days or up to several months or more, depending on several factors.

For example, if it is a fairly straightforward car accident case where another driver was clearly negligent in colliding with your vehicle and your injuries are relatively minor, you might decide to take the insurer’s settlement offer and move on with your life. If, on the other hand, your injuries are more extensive, there is some question about liability, and there are other complicating factors, you can expect the negotiations to go on for a while.

If you do have moderate to severe injuries, you definitely do not want to accept an insurance company’s initial offer. The main reason being that it is nearly impossible to know just a few days after an accident how extensive your injuries are. You will need to wait until you have all of that information before you can determine how much compensation you should be entitled to. 

After you have declined the insurer’s first offer and received a medical report regarding your injuries, you can prepare a demand letter with a counter offer that more accurately reflects what your claim is worth. When determining the full extent of the losses you have suffered, be sure to factor in both economic and non-economic damages.

Economic damages are those that are quantifiable, such as property damage, medical costs (both present and future), time missed from work, and loss of earning capacity. Non-economic damages are intangibles that are more difficult to assign a dollar figure to. Examples include pain and suffering, emotional distress, diminished quality of life, and loss of consortium.

After you submit your demand letter with a counter offer, the insurer will either accept the offer or send a counter of their own. In most cases, there will be some back and forth activity before a final settlement is agreed upon, if you are able to get them to agree to a fair settlement at all.

During the process, the insurance company may use various tactics to diminish the value of your claim or deny your claim altogether. For example, if an accident involving injuries occurs in Virginia, an injured party can be barred from recovering compensation if they are found to be even 1% at-fault for the accident. There is no doubt that an insurer will try to use the state’s defendant-friendly legal standard to their advantage to avoid responsibility for the negligent actions of their client.

How an Attorney can Help Negotiate a Full and Fair Settlement

As mentioned earlier, negotiating with the insurance adjuster can be a difficult process, especially in a state that is so favorable to defendants in personal injury cases. This is why it is recommended that those who are injured in an accident strongly consider retaining skilled legal counsel.

A seasoned personal injury lawyer can handle the entire negotiation process for you. They will deal directly with the insurance adjuster, leveraging their extensive experience to help you obtain full and fair compensation.

Some of the specific ways a lawyer can help you during negotiations include:

  • Advising you on whether or not the insurance company is presenting a fair offer;
  • Properly valuing your claim based on a thorough investigation of the facts and evidence of the case;
  • Using their negotiation skills to strongly argue for the amount you deserve;
  • Helping you fight an insurance claim denial;
  • Calling on expert witnesses when necessary to help substantiate your claim;
  • Providing the insurance adjuster with a credible threat of a lawsuit if they do not negotiate in good faith.

If you or someone close to you has been injured in an accident in Virginia, contact the experienced personal injury attorneys at Olmstead & Olmstead for a free, no-obligation consultation. Call our office today at 571-620-5923 or send us a message through our online contact form.