Oakland Personal Injury Lawyer Blog

New Study Shows How California Law Lowers Risk Of Serious Teenage Auto Accidents

Tue, 08 May 2012 15:26:11 -0800

As a father of four children and an Alameda car accident lawyer, I have a lot of experience with teenage drivers. I've heard and seen just about everything when it comes to teenagers and driving. When my third youngest child got her license about three years ago, California had just enacted a new law, which placed more restrictions on teenage drivers.

That California law provides that a new driver under the age of 18 will receive a provisional license. During the first 12 months after obtaining the license he/she must not transport anyone one under the age of twenty at any time unless accompanied by a parent or guardian. Driving between the hours of 11:00 p.m. and 5:00 a.m. is strictly prohibited.

You should have heard the complaints my daughter voiced for the entire 12 months that she was under the restrictions. Now, my youngest son is just finishing his provisional driving period and the kid's complaints and arguments, and my responses remain the same. Other kids in the car are a big distraction for new drivers, that can and do, lead to serious personal injury car accidents.

Now I have a new study to back up what I knew all along. The American Automobile Foundation for Traffic Safety released a report showing a strong relationship between the number of passengers in the vehicle and the risk of a teenage driver dying in the car crash. The study found that the likelihood of a fatal accident with a teenage driver under the age of 18 increased with each addition young passenger present in the car. Look at these eye popping statistics:

Fatality risks increases 44% when carrying one passenger younger than age 21 (and no older passengers)

Fatality risk doubles when carrying two passengers under age twenty-one;

The risk of death quadruples when carrying three or more young passengers under the age of 21.

One of the kids' biggest arguments for driving other teenagers is the standard refrain "that everyone else's parents" allows them to drive others. So the first thing we have to do as responsible parents is to make sure our own kids are obeying the law. So, we shouldn't be allowing our kids to drive others while they still have their provisional license, nor should we allow our kids to be passengers in their friend's car while they have provisional licenses. Signing a parent teen driving agreement that the child will not drive others reinforces the importance of this. Make sure other parents are aware of the law if you know that their child is driving others while under age. Finally, help provide other transportation alternatives for the kids to alleviate some of the hardships that do arise sometimes by complying with this law.

We know anecdotally (and probably experientially) that the more kids are in a car, the more distractions there will be, and the greater likelihood of a serious or even fatal car accident. Now a study proves this. As responsible parents, it is our duty to make sure our kids comply with the law and drive safely. I encourage you to talk about this study with your children, and your children's friends' parents. The more our kids obey the provisional driver restrictions, the safer they will be.

Resources:

Teen Driver Safety, AAA Foundation For Traffic Safety, May 8, 2012

California Teens, California Department of Motor Vehicles

Alameda Pedestrian Victim of Hit and Run Driver

Thu, 03 May 2012 11:54:36 -0800

A pedestrian who was crossing Central Avenue in Alameda was hit by a sports car on April 21, 2012. The victim was hospitalized, and is now recovering at home. The police say that the victim and another person were crossing the street in between intersections in the 700 block of Central Avenue at about 1:45 p.m. At that time a bystander yelled a warning to the two men. One was able to jump out of the way. The other was hit by the car which then fled the scene.

As an Alameda personal injury lawyer, a couple points come to mind regarding this accident. First, when you are involved in any accident, you are legally obligated to stop and identity yourself, and provide your insurance information. This is true regardless who is at fault for the accident. Second, even though cars have the right of way when traveling down the road, in between intersections, drivers still have an obligation to keep their attention on the roadway and avoid injury to others where possible. In other words, jaywalkers aren't fair game for drivers as they cross the road in front of you.

Looking at the conduct of the pedestrians in this case, the first question that pops out is why are they jaywalking? The 700 block of Alameda is a busy street. There are nearby intersections, with traffic lights to protect pedestrians. Under the law, a pedestrian also has the legal obligation to keep a look out for on coming traffic and obey all traffic laws. According to the reports, this was not done in this case.

It is hard to analyze the entire picture from a legal liability standpoint, because we don't know the speed of the driver, where he came from, whether there was intoxication involved, why the pedestrians were in the street, and where the point of impact was located. However, a couple of points can be made.

With regard to the injured pedestrian, he will not be able to sue the hit and run driver for his personal injuries unless the driver can be located. Therefore, his only method of obtaining compensation would be through his own uninsured motorist coverage on his automobile, if he has one.

Uninsured motorist protection is required by California law for every policy of automobile liability insurance issued in the state. It must be issued with limits of no less than $15,000.00 per accident. It protects drivers against uninsured drivers, but unbeknownst to many people, it also protects pedestrians and cyclists if they are injured by an uninsured driver or hit and run driver.

In a successful uninsured motorist claim, the pedestrian can obtain full reimbursement of his medical bills, any lost wages incurred, and general damages for his pain and suffering (up to the amount of uninsured motorist coverage that the individual carries).

In this case, the pedestrian would be able to make a claim against his own insurance carrier for the damages caused by the hit and run driver, assuming he can prove that the driver was negligent. His damages would then be reduced because of his own fault for jaywalking. This is the law of comparative negligence.

The important thing to remember about pedestrian accidents, and hit and run accidents, is that if you are injured in a accident like this, you can recover fully from your own uninsured motorist carrier. Therefore, it is also important to know about your auto insurance coverage and how much uninsured motorist coverage you have and whether it is adequate to fully protect you if you are injured by an uninsured or hit and run driver.

Resource:

Victim of Central Ave. Hit and Run Recovering, Alameda Patch, April 25, 2012

Cosco Busan Owner Sues Longs For San Francisco Bay Bridge Accident

Thu, 26 Apr 2012 10:48:17 -0800

Things aren't always what they seem. What often appears a simple accident is often much more involved. The shipping accident of the Cosco Busan is a case in point.

On November 7, 2007, at about 8:30 a.m. in foggy weather, a 901 foot long container ship, the Cosco Busan, crashed into the base of a tower of the San Francisco Bay Bridge. The ship was operated by a bar pilot and was outbound from Oakland and was headed to South Korea. The impact to the ship caused a 212 foot long gas in the port side of the ship and breached the fuel tanks and ballast tank. As a result, over 53,000 gallons of fuel were released into the San Francisco Bay. The spill killed more than 2,500 birds, temporarily closed a fishery on the bay, and delayed the start of the crab season. Monetary damages were estimated to be $2.1 million to the ship, $1.5 million to the bridge and more than $70 million for clean up of the environment.

Last week the owners of the Cosco Busan sued the Northern California pharmacists, CVS Pharmacy, claiming that they negligently dispensed prescription drugs to the pilot of the ship. In their legal filings, the owners claimed that CVS "recklessly" provided pills to the pilot, and so clouded his judgement and dulled his reflexes that they contributed to the cause of the accident. As a result of the spill, the owners of the ship have paid out over $18 million dollars in fines and settlements. The lawsuit claims that CVS should be responsible for part of this tab since the pharmacy did not warn the pilot of the ship of the dangers of combining these drugs, nor consult his doctors, or licensing authorities.

Under California tort law, a negligent person or entity is responsible for all damages caused by their negligent conduct. In terms of economic losses, if a company causes injury or damages to others, it is responsible for the damages caused even if there whether are other causes of the accident. It does not get off the hook for damages just because there may be other negligent parties that also contributed to the accident. This is called the law of joint and several liability.

As a San Francisco personal injury lawyer, I see that it is often the case that there are multiple causes for a particular accident. For example, in a serious automobile accident, which causes personal injuries, the most obvious cause of an accident may be the negligent driver. But often times, there are other significant causes such as defective conditions of the cars, or dangerous conditions of the roadway which may have also contributed to the accident. Hence, it is extremely important in any accident type case, that all probable causes of the accident be identified.

In the Cosco Busan case, the National Traffic Safety Board which investigated the accident, found numerous causes of the accident. Among them was the fact that the pilot was operating the ship with "degraded cognitive performance from his use of impairing prescription medications." If the owners of the ship can prove this in court, and that CVS's conduct was a substantial factor in causing the pilot's condition, they will be able to recover substantial amounts for the damages that they have already paid out to others.

The teaching point from this case is the importance of a thorough investigation of any accident. When a serious personal injury accident, or property damage accident occurs, there are often multiple causes. Each of these causes must be identified and all negligent parties must be brought into the case. In this way, full justice can be obtained for the injured victims.

Resources:

Cosco Busan owner sues pharmacists for giving ship's pilot pills in 2007 Bay spill, Mercury News, April 25, 2012

Marine Accident Report, National Traffic Safety Board, November 7, 2011

Long Term Affects of Head Injuries in Children: A Perspective for Parents of Children With Mild Traumatic Brain Injuries

Thu, 19 Apr 2012 12:17:03 -0800

It is not uncommon for children to suffer head injuries in accidents such as automobile collisions, bike accidents, and sports activities. A new study by the Archives of Pediatric and Adolescent Medicine documents the long term effects of these types of brain injuries in children.

The researchers looked at the progress of 250 children admitted to two hospitals for either mild traumatic brain injuries or broken bones. The study showed that those with mild traumatic brain injuries were more likely than the others to have headaches, tiredness, and trouble thinking a year after being seen at the emergency room. This was especially true if there was unconsciousness following the injury or there were visible changes on the MRI brain scan. Even small impacts to the child's head can lead to long term problems.

Given the seriousness of traumatic brain injuries, it is important to recognize the symptoms. The common symptoms include one or more of the following signs:
The child appears dazed or stunned; there is confusion; cannot remember instructions: moves clumsily: answers questions slowly; loses consciousness, even slowly; shows mood or personality changes; cannot recall events prior to or after the head injury. Other signs may include headaches, nausea, vomiting, dizziness, double vision, sensitivity to light, sensitivity to noise, or sluggish feelings. If you child displays any of these symptoms following a blow to the head caused by an accident, fall, or collision, they should be seen by a doctor immediately.

Each year more than a half million children end up in emergency rooms with traumatic brain injuries. These can cause long term problems which may necessitate the child needing extra held with school, due to headaches, fatigue or other physical symptoms which can often last up to a year and in some instances, can be permanent.

As a traumatic brain injury lawyer in Alameda, I have represented many children with mild traumatic brain injuries. I caution my clients that their child's head injury should not be taken lightly. The symptoms should be monitored closely and the child should be held our of potentially dangerous activities, such as contact sports, until such time, as he/she has fully recovered from the concussion. In cases where personal injury actions have been filed because the injury was caused by the negligence of someone else, such as in a car accident, or bicycle accident, it is important to fully document the residual effects or the injury, and not conclude any settlement until the child has fully recovered from her injuries.

In the case of minor traumatic brain injuries where litigation is involved, the residual effects can often be subtle but debilitation nonetheless. Therefore, in these cases, a child should be seen by a pediatric neuropsychologist who can perform the appropriate psychometric testing to identify and document subtle deficits which can present learning and retention problems that may be permanent in nature.

Resources:

target="_blank"Reliable Change in Postconcussive Symptoms and Its Functional Consequences Among Children With Mild Traumatic Brain Injury, Archives of Pediatrics and Adolescent Medicine, March 5, 2012

Injury Prevention & Control: Traumatic Brain Injury, Centers of Disease Control and Prevention

Is Your Facebook Page Discoverable In A California Personal Injury Lawsuit?

Wed, 11 Apr 2012 15:14:36 -0800

Facebook is the largest social network in the world. The company was recently in the news when it warned employers not to demand the Facebook passwords of prospective employees. Apparently, many employers are now attempting to get this information before hiring individuals. The company claimed that it's an invasion of privacy that exposes companies to legal liability. As an Alameda personal injury lawyer, I am starting to see that insurance companies are also trying to get this information to defend claims in auto accidents, slip and fall, and other personal injury claims.

The legal question is whether a person who files a personal injury lawsuit waives his or her entire right of privacy as to their Facebook and other social network postings. There have been no California appellate court decisions directly on point, however, a state court decision out of Pennsylvania has considered the issue.

In the Pennsylvania case, Largent v Reed, the plaintiff filed a personal injury lawsuit in which she claimed severe personal injuries and emotional distress caused by an auto accident. The lawyers for the defendant claimed that the person's Facebook page had several photographs of her enjoying her life and going to the gym. The Pennsylvania court ruled that the person's Facebook page was not protected by her right of privacy and permitted the discovery.

The Pennsylvania case is not binding on California Courts however. And there is good reason to believe that a California Court might rule the opposite way and protect the plaintiff's right of privacy.

California courts have a long history of protecting individual's rights of privacy and rights of association. It seems to me that the Facebook and social media environment in general involves not just the individuals right of privacy but the right of others who are Facebook friends. In other words, the rights of all of the people you associate with on Facebook are also affected if the Courts permit disclosure of this type information.

The California Supreme court over thirty years ago recognized that a person's right to privacy and his association rights are not necessarily waived just because a personal injury lawsuit is filed. The case was Britt v Superior Court. There, the plaintiff's sued a local airport for damages for diminution of value to their property, personal injuries, and emotional distress related to the use of the airport. In their defense, the airport sought detailed information about the plaintiffs' activities and affiliations with certain organizations. The Court held that this information was protected by their right of associational privacy. In denying the defendant permission to obtain this type of information, the court stressed that compelled disclosure of an individual's private associational affiliations and activities can pose one of the most serious threats to the free exercise of this constitutionally endowed right.

A cogent argument can be made that discovery of Facebook information also infringes on this constitutionally protected right to freely associate with others. After all, the Facebook pages are not open to all and have privacy settings all for the specific purpose of limiting who you are sharing information with. Under the reasoning of Britt v Superior Court, the individual should have the right to keep this information private.

Of course, no California court has made a binding decision on the matter. I would suspect that even if an appellate court were to take on this issue, that it would ultimately end up before our California Supreme Court again. As a matter of practicality, however, I would strongly suggest, that individuals be careful about what they put on Facebook or other social media sites. While a strong argument can be made that such postings are protected private materials, courts, such as that in Pennsylvania may see it otherwise.

Resources:

Facebook warns employers not to demand passwords, SF Gate, March 23, 2012

Britt v Superior Court, 20 Cal 3d 844 (1978)

San Francisco Pedestrian Suffers Personal Injuries When Struck By Bicyclist: Tips for Better Bicycle Safety

Mon, 02 Apr 2012 10:54:44 -0800

On March 29, 2012, a man who was walking in a crosswalk was struck by a bicyclist in San Francisco and suffered serious injuries. The man was walking across Market Street in a marked crosswalk, when he was hit. Both the pedestrian and the cyclist suffered head injuries causing loss of consciousness. They were both taken to San Francisco General Hospital for treatment of their injuries.

According to one of the witnesses, the cyclist was traveling south on Castro and was crossing Market when the pedestrian accident occurred. The witnesses advised the police that the cyclist may have run the red light.

In a study by NHTSA, in 2005, more than 5000 people were killed in pedestrian and bicycle accidents. Although the numbers have declined, pedestrian and bicycle serious injuries and deaths resulting from accidents is still a big problem.

In order to reduce the numbers of personal injury accidents further, bicyclists should do the following. First, remember that you are bound by the same rules of the road as a motor vehicle. That means among other things, that cyclists must obey traffic controls such as traffic lights, stop signs, yield signs just as any operator of a vehicle must. In the case above, a serious accident, which resulted in injuries to both the rider and the pedestrian, may have been avoided if the law regarding stopping for red lights was obeyed.

In addition to following the traffic laws, cyclists can help prevent serious personal injuries to themselves by wearing protective equipment and taking other safety precautions. The number one form of safety equipment to be used is the helmet. It is unknown in this accident whether the cyclist had a helmet on or not, but he lost consciousness as a result of the collision, and therefore, one must suspect that a helmet was not worn. Helmets have proven effective in reducing serious head injuries and preventing traumatic brain injuries (TBI). Helmets are required by California law for riders under the age of 18.

Besides the use of a helmet, cyclist should wear clothing so they can be seen by others. White is not recommended. Rather, cyclist should wear neon, fluorescent or other bright colors whether riding at night or day. It is best to avoid riding at night, but if you must, make sure you have reflectors on the front and rear of the bike, reflectors on your wheels, and reflective tape on shoes are useful in improving visibility.

While following the usual rules of the road is mandatory, there are a few other California laws which pertain to bicyclists who use the road way. Bikes should ride as far or near to the right curb or edge of the roadway as is practical--not on the sidewalk. Bikes may choose to ride on the left side of the roadway, when they are on a one way street. Bikes must make left and right turns in the same way drivers do, using appropriate turn lanes. If the cyclist is riding straight ahead, he should use a through traffic lane rather than riding next to the curb.

As an Alameda bicycle injury lawyer, I have seen many serious injuries caused when bicyclists have been involved in accidents. The frequency of these accidents can be reduced if we follow the proper rules of the road for cyclists. The severity of these accidents can be reduced by wearing appropriate safety clothing and helmets. If you have been seriously injured in a bike accident, it is vitally important to know your legal rights as well.

Resources:

Pedestrian, cyclist injured in crash in Castro, San fRancisco Chronicle, March 30, 2012

California Driver Handbook- Sharing the Road, California Department of Motor Vehicles

Falls On Stairs: A Common Cause of Serious Brain Injuries In Children

Tue, 27 Mar 2012 12:50:31 -0800

A recent study by the medical journal, Pediatrics, shows that while stair related injuries to children are declining, they are still a significant problem. Over 93,000 children go to emergency rooms annually for injuries related to falls on stairways. According to Dr. Gary Smith, director of Nationwide Childrens Hospital's Center for Injury Research and Policy, the numbers are still way too high. He says, "...the wake up call is that we're still seeing a child less than 5 years old injured every six minutes. To me that means we have a lot more work to do."

The study showed that broken arms and legs were common. However, these types of injures were way outnumbered by the number of head and neck injuries. Brain injuries and neck injuries accounted for 76% of the emergency room visits reported. These types of injuries can result in brain bleeding or bruising which can lead to permanent problems for the child.

As an Alameda personal injury lawyer, I often get calls from parents whose children have been injured while at day care or while other care takers have had custody of the child. Of course, care takers and other providers can be legally liable for personal injuries to children if the injuries were caused by poor supervision or other negligence. However, sometimes, even with the best of care, children can be injured on stairs when a parent or care taker is momentarily distracted by other tasks. Therefore, a good way to help prevent these injuries to children is to provide a safe environment as well.

Dr. Smith strongly recommends the use of stairway gates at homes where young children live or frequently visit. The children have good mobility and a sense of curiosity, but do not appreciate the danger of the stairway. Dr. Estevan Garcia, of the Maimondies Medical Center in New York City, recommends gates at both the top and bottom of the stairs. He warns parents and caretakers , "A lot of people forget that if a kid can get up, they can come down."

Kids Health has these recommendations to help prevent stairway injuries to children:

Never leave a child unattended around stairs--even if gated. Babies can climb up and over the gates. Consider also gating the children's bedroom to prevent the child from even reaching the stairs.
Keep Stairways clear of toys, shoes, and other objects.
The gates which are installed at the top and bottom of the stairs should be hardware mounted safety gates, as opposed to pressure mounted gates.
Avoid accordion gates, which can trap a child's head.
Teach your toddler how to go down stairs on their bottoms.

Falls are the leading cause of unintentional injury for our children. The severity of fall related injuries is determined by the distance of the fall and the character of the landing surface. Children under the age of ten have a high degree of curiosity coupled with poorly developed motor skills. Therefore, they are at the greatest risk for serious brain injuries and spinal cord injuries resulting from stairway falls. By providing proper supervision, and a safer environment for our children, we can greatly reduce the risk of these types of serious injuries.

Resources:

Household Safety, Kidshealth.com

Help for California Drivers To Pay Medical Bills Incurred In Automobile Accidents

Wed, 21 Mar 2012 10:38:23 -0800

A recent report by the Center for Disease Control showed the heavy costs of medical bills on the average citizen. According to the study, in the fix six months of 2011, one in three people were experiencing the financial burden of medical bills. The burden of heavy medical bills has fallen primarily on the poor, those under the age of 17 and the elderly. For children under age 17, 24% were in families who were having trouble paying their medical bills.

Our country spent $2.6 trillion dollars per year on health care in 2010. This is more than the entire economies of France and Great Britain combined. Yet, the way healthcare is provided from state to state can vary widely. In Massachusetts, they have a mandatory insurance program which covers 98% of its citizens. On the opposite end of the spectrum is Texas. 25% of all Texans have no health insurance at all. According to a study by UCLA, done in 2010, the rate of uninsured in California is not much better. 24.3% of all Californians are without health insurance.

As an Alameda personal injury lawyer, I have personally seen many clients whose financial worlds have been rocked when they have incurred heavy medical bills following an automobile accident. People may incur these large bills for a variety of reasons: they may be either uninsured or underinsured due to the high cost of insurance, or they lost their insurance because of being laid off from work; the bills may be for treatments not covered by their health insurer; the bills may have been incurred out of their usual insurance network; or they may have a very high deductible to meet before their insurance coverage kicks in. Injured parties may be able to recover these bills in a personal injury lawsuit, but they may have to wait years for their cases to be resolved.

The best way to protect yourself against high medical bills if you have been involved in a car accident is to obtain "med pay" coverage through your own auto insurance company. Med pay coverage will pay for your accident related medical bills whether you are at fault in the accident or not. It also provides coverage for any of your passengers. This coverage also applies to you if you are a pedestrian, or cyclist and are injured because you have been struck by a car. The coverage is available on almost all policies issued in California and usually comes in increments of $1,000.00, $2,000.00, $5,000.00, $10,000.00, all the way up to $100,000.00. The coverage is generally not that expensive.

I would recommend purchasing med pay coverage on your automobile liability insurance policy even if you have health insurance. Most health insurance plans today have deductibles and co-pay provisions. If you are seriously injured in an automobile accident, the amounts of the deductibles and co-pays can add up to thousands of dollars. Your med pay coverage can be used to pay off these outstanding bills which are not paid fully by your health insurance. Additionally, the med pay can be used to pay for healthcare which may not be covered by your health insurance such as chiropractic care, acupuncture, other alternative medical treatments.

The status of the health care delivery system in America in my opinion is abysmal. We spend more on healthcare than other countries, and yet have higher morbidity rates in many cases. Our system cries out for reform to protect the many uninsured and underinsured in our country. In the meantime, considering med pay coverage for your automobile liability coverage may help provide you coverage or plug holes in your existing coverage if you are injured in a serious automobile accident.

Resources:

One Nation, Two Health Care Extremes, NPR News, March 19, 2012

Number of uninsured in California counties grew during recession, UCLA Center for Health Policy Research, August 23, 2010

California High School Player's Brain Injury Claim Exposes Risks of Football Head Injuries

Wed, 14 Mar 2012 10:17:10 -0800

A recent case involving a San Diego high school football player demonstrates the importance of taking head injuries in sports very seriously. Scott Eveland, now age 22, was a senior in high school when he collapsed on the sidelines during a football game. He was rushed to the hospital where doctors removed a portion of his skull. Their was extensive bleeding inside his brain which caused him to suffer permanent brain damage. Scott is now confined to a wheelchair and must communicate through an iPad or a specially designed keyboard.

The personal injury lawsuit alleged that the coaches had ignored signs of his head injury and continued to let him play. According to a student assistant trainer, warning signs of a concussion were ignored by the coaches. She testified in her deposition that he had headaches and had to sit out parts of practice a week before sustaining the permanent injury. She also stated that minutes before the ultimate injury, Scott had asked his coach to let him sit out the first quarter because his head hurt.

A number of NFL players have also filed suit against their former employers for brain injuries that they alleged were sustained during their playing days. The players accuse the league of intentional and negligent misconduct in response to complaints of headaches and dizziness following head injuries during games. They contend that the cumulative trauma has caused dementia, and other brain related problems. The players contend that for years they were coached to "lead with their heads" in tackling. Players claim that the league has known since the 1920's the potential long term harmful effects of head injuries but concealed the information from the players.

The law in California regarding personal injury claims arising out of sports has evolved over the years. For some time, a player injured in a football claim was deemed to have assumed the risk of such injuries and was barred from suing his school. Later, cases held that the school could be legally responsible for the injury, if school employees increased the risks of the sport over and above what was commonly considered to be a normal risk of injury of that particular activity. The most recent pronouncement of the Supreme Court, in the case of Kahn v East Side Union High School holds that in order to find a school liable for sport injuries, the student must prove that the coach either intentionally caused injury to the student, or acted recklessly in his conduct in a manner which was entirely outside the range of ordinary activity involved in teaching or coaching the sport.

For personal injury claims against employers, such as the NFL players suit, the rules are different. Traditionally, claims by employees were limited to workers compensation benefits. However, if the employer knew that an employee was injured on the job and concealed the extent of the injury from the employee and as a result the injury was made worse, the employee can sue the employer in civil court for traditional remedies associated with personal injury claims.

As an Alameda brain injury lawyer, I have represented numerous TBI clients over the years and seen the great harm these injuries cause. The dangers of concussions during sports activities are now well known. No longer can coaches or other professionals just claim that the player "got his bell rung" and send him back into the game. Concussions are brain injuries. If a coach sees that his player is dazed or stunned, confused about an assignment, forgets an instruction, unsure of a game, score or opponent, moves clumsily, answers questions slowly, loses consciousness, shows mood, or behavior changes, can't recall events prior to a hit or fall, or can't recall events after a hit or fall, these are all signs of a traumatic brain injury. As such they should be taken seriously, and all necessary medical precautions should be taken.

Resources:

Injury Prevention and Control: Traumatic Brain Injury, Centers for Disease Control and Prevention

Players Accuse NFL of Negligence, ESPN NFL, August 29, 2011

University Of Texas Researchers Provide New Hope For Nerve Injury Victims

Mon, 05 Mar 2012 09:53:59 -0800

Nerve injuries can be caused by car accidents, slip and falls, dog bites, cuts to the skin and by many other common means. Scientists are now working on new ways to help repair these serious nerve injuries.

Peripheral nerves are those nerves outside the brain and spinal column. When those nerves are injured or severed, they will stop sending messages to the brain. The nerves may regenerate, but it is a very slow process. The nerves only grow back at a rate of 1 to 2 millimeters a day. Thus, it can often take over a year for peripheral nerve injury to heal. During this time, the surrounding muscle can atrophy and this can become a permanent condition which inhibits function of the muscle.

New research at the University of Texas, Austin is being done to speed up the healing times. When a nerve is damaged, it is like a bridge with a section missing, says researched George Bittner. What he and his team are trying to do is put a patch in between the severed portion of the nerve and rejoin the two halves. After the severed nerve is sutured together, chemicals are applied that cause the nerve endings to fuse. The technique uses chemicals that have already been approved to be used on humans.

The results in laboratory testing have been promising. A study was conducted with rats where the sciatic nerves were severed. These nerves control the entire leg, paw and toes of the animal. After the procedure it was hard to tell the rats that had had the procedure from normal rats.

As an Alameda personal injury lawyer, I have represented many individuals in personal injury claims where peripheral nerves have been injured. These injuries can be very serious and there are often permanent residual problems such as loss of function, loss of sensation, muscle weakness and even chronic pain. The research being done to speed up the healing process for these type nerve injuries, provides hope for those who may suffer these types of painful injuries in the future. Doctors are optimistic that if these type procedure can help with peripheral nerves that the process can later be used to work on spinal cord injuries, helping those who have suffered paralysis.

Source:

New methods could speed up repair of injured nerves, NPR, John Hamilton, February 27, 2012

California Wrongful Death Lawsuit Spurs Congress To Make Car Rental Industry Safer

Thu, 23 Feb 2012 10:32:55 -0800

When we rent a car, shouldn't we be entitled to assume that the car is in a safe condition? Shouldn't we be able to assume, that if the manufacturer of the car has issued a safety recall, that the rental car company will comply with that safety recall? In a classic case pitting corporate profits against public safety, Enterprise Car Rental apparent response to these questions is "No!"

Congress is considering laws right now which would address the problem of rental car companies not abiding by auto manufacturers' safety recalls. The Congress was motivated to act by a California mother who lost her two daughters in a tragic car accident when Enterprise Car rental ignored safety recalls issued by Chrysler in 2004.

In 2004, Chrysler issued a safety recall of its PT Cruisers. There was a problem with power steering fluid leaking which could cause fires. Enterprise received notice of the safety recall, but failed to have the problem fixed. It rented a PT Cruiser to two sisters, Rachel and Jacqueline Houck. The steering fluid leaked causing a fire in the vehicle which caused them to loose control of their car and strike a semi tractor-trailer. Both young women died in the accident.

Their mother Cally Houck, then brought a wrongful death lawsuit against Enterprise. In the litigation, discovery showed that Enterprise was aware of the recall yet rented the car out to several other customers before renting it to the Houcks. Nevertheless, Enterprise fought the case for five years before finally admitting fault. The case still went to the jury on damages. Ms. Houck was awarded damages for the wrongful death of her two daughters in the amount of $15,000,000.00.

To Ms. Houck's credit, she has become an advocate for greater safety in the rental car industry. She said that Enterprise rented her daughters a "ticking time bomb." She wants to prevent this from happening to others. She has lobbied with members of Consumers for Auto Reliability and Safety for laws to ground rental cars with unrepaired safety defects. Currently, there is a bill sponsored by New York Senator Charles Schumer and California Senator Barbara which would prevent rental car companies from renting recalled cars until they are repaired.

Enterprise Car Rental is the largest rental car company in the United States, behind Avis and Hertz. Enterprise is currently opposing this safety measure.

As an Alameda personal injury lawyer, I am concerned about public safety. We can act to help prevent senseless car accidents such as the one that took the lives of Raechel and Jacqueline Houck. Cally Houck has written a petition to encourage Enterprise to end its opposition to the proposed law grounding unsafe cars which have been recalled by the manufacturer. I urge you to join with her and sign her petition.

Resources:

Mother whose daughters died in fiery rental car crash is pleased Hertz agrees to rental recall oversight, Mercury News, February 21, 2012

Santorum's Hypocritical Position on California Medical Malpractice Claims Exposed

Fri, 17 Feb 2012 10:28:27 -0800

It has been popular for politicians, especially those on the right, to advocate for the placement of caps on awards for personal injury claims, including medical malpractice actions. Most recently, Republican presidential hopeful, Rick Santorum, says that if elected, he would push to limit payments to victims of medical malpractice, which he claims unnecessarily drives up health insurance costs. What Santorum doesn't push is that fact that his wife brought her own medical malpractice case against a Virginia chiropractor in which she claimed damages of $500,000.00.

The Washington Post has reported that in 1999, Santorum's wife had severe back pain following the tragic death of their prematurely born son, who died the same day as the delivery. Ms. Santorum then sought the help of a chiropractor whom she claimed negligently treated her and caused her to sustain a herniated disc. Suit was filed and the case went all the way through a jury trial. Rick Santorum testified in the case about the pain and suffering that his wife endured as a result of the herniated disc. The jury found in favor of the Santorum's and awarded damages in the amount of $350,000.00. The judge later reduced the award to $175,000.00 claiming that the juries assessment of damages was excessive. The Santorums unsuccessfully attempted to seal the records pertaining to the lawsuit.

As an Oakland personal injury lawyer, I have to ask how Rick Santorum can campaign to limit the rights of others, when it was perfectly fine for he and his wife to use that very same system that is designed to protect those who have been injured by the negligence of doctors. Then, he apparently made efforts to make the whole lawsuit secret in order to prevent the public from knowing about the case. If he had had his way, his wife would have recovered her judgment in secret, while he continued to advocate for the limitation of rights of victims of medical negligence.

What is tragic is not so much the obvious hypocrisy here, but the real unfairness that caps on damages cause real people every day. In California, we have had limitations on damages since 1975. At that time the insurance industry claimed that the so-called medical malpractice crisis was driving insurance rates up and doctors out of the state. The insurance companies convinced the legislature to limit recoveries for general damages for pain and suffering in medical negligence cases to $250,000.00. That has been the limit in California since that time. But has it lowered the cost of insurance for doctors?

According to the Americans for Insurance Reform, in the year 2000, 25 years after the passage of the initial limitations of damages in California, rates here are only slightly less than that of the rest of the nation. Many studies conclude that the cost of liability insurance for doctors is more directly related to how insurance companies' investments are performing, rather than on the amount that is paid out in claims.

Recently, a plaintiff was awarded $6,000,000.00 in a wrongful death action against a doctor Following the 1975 law, the judge in the case reduced the general damages portion of the award to $250,000.00. The wife appealed the case, noting that inflation had eroded the value of the 1975 cap of $250,000.00 to a present value of approximately $58,000.00. Unfortunately, she lost her appeal and the $250,000.00 cap on medical negligence damages remains the law in California (See Stinnett v Tam).

The effects of these caps are pernicious. People who have been injured by the negligence of healthcare professionals often sustain life long, permanent medical problems or death. This cap then encourages the insurance carriers for the doctors to try these cases before juries, because they know that their exposure is limited. This increases the costs of prosecuting and defending these cases, and discourages many people who have been injured by medical negligence from pursuing these claims. So if people like Rick Santorum want to limit damages in personal injury cases or medical negligence cases, they should at least be straight with the public about how these caps only benefit the insurers and how they severely restrict the rights of the public. A cap that has a value of $58,000 in 1975 should be eliminated-not applauded.

Resources:

Santorum pushed to limit malpractice awards but sought larger payout for wife, Washington Post, January 27, 2012

Dog Bites Local Newscaster: Tips to Prevent Dog Bite Injuries

Wed, 15 Feb 2012 15:54:20 -0800

Recently a Denver news anchor was bitten on the face by an Argentine mastiff. The dog had been saved from an icy reservoir the day before. The newsperson was interviewing two safety officers while petting the dog's head. She then made the tragic mistake of putting her face near the dog's head. The dog jumped towards her and bit her on the mouth. She was taken to the hospital where she underwent plastic surgery on her mouth. Her face required 70 stitches to repair. Apparently, she will require future surgery as well. The obvious safety point to remember here, which we often forget, is to never put your face near the head of a dog. Dogs bite about 4.5 million people each year. The most frequent victims are children, ages five to nine. Households with two or more dogs are five times more likely to be bitten than those living without dogs at home. With this in mind, I have outlined some safety tips to help prevent these kinds of injuries. The CDC has the recommended the following safety precautions:

Before bringing a dog into your house, consult a professional as to which breed would best fit your home
Avoid dogs with histories of aggression if you have kids
Spend time with a dog before buying or adopting
Spay/neuter your pet
Don't play aggressive games with your dog, like wrestling
Properly socialize and train your dog, teaching it submissive behaviors

For children, the CDC gives this advice:

Do not approach an unfamiliar dog.
Do not run from a dog or scream.
Remain motionless when approached by an unfamiliar dog.
If knocked over by a dog, roll into a ball and lie still.
Do not play with a dog unless supervised by an adult.
Avoid direct eye contact with a dog.
Do not disturb a dog that is sleeping, eating or caring for puppies.
Do not pet a dog without allowing it to seen and sniff you first.

California dog owners are responsible for injuries caused by their dogs, even if they have taken responsible steps to prevent the injuries from occurring. By virtue of the fact that one owns a dog, he becomes strictly liable for any injuries caused by his pet biting someone. California Civil Code section 3342 states that the owner of a dog is liable for damages suffered by anyone bitten in a public place or lawfully in a private place, including the home of the dog owner. If someone is bitten by your dog, they can file a claim for personal injuries against you. As the owner of the dog, you would be responsible for the person's medical bills, loss of earnings, and for their pain and suffering associated with the bite, and any disfigurement caused by the injury. As an Alameda dog bite attorney, I have represented numerous clients who have suffered very serious and permanent injuries caused by dog bites. By following the safety tips described above, we can all do our part to help reduce these serious and sometimes fatal injuries. Resources: Denver TV anchor bitten on face by dog has 'mouth stitched shut', Herald Sun, February15, 2012 Dog Bite Prevention, Centers for Disease Control and Prevention

Alameda Hit and Run Pedestrian Accidents: Citizens Concerned about Safety of Streets

Wed, 08 Feb 2012 08:30:00 -0800

There have been two recent pedestrian accidents in Alameda. In one incident, a 17-year old girl was hit at the intersection of High St. and Encinal Avenue by a hit and run driver. In the other, a man was killed on Doolittle as he was walking along the side of the road (his car had been impounded by the Alameda police because he was an unlicensed driver). A number of Alameda residents have voiced concerns about the safety of Alameda streets. These recently well publicized cases bring a couple of points to mind. Are pedestrian accidents on the rise? What can be done to help further reduce the number of pedestrian collisions? If you are injured in a pedestrian accident, how can your auto insurance help you out?

Interestingly, the number of pedestrian accidents has actually declined over the past ten years. A study by the NHTSA, National Highway Traffic Safety Association, showed a 14% decrease in the number of pedestrian fatalities nationwide since 2000. In 2009, there were 4,092 fatalities and an estimated 59,000 injuries due to pedestrian accidents. Pedestrian fatalities represented 12% of all motor vehicle related deaths. 48% of the pedestrian deaths involved alcohol use by either the pedestrian or the driver.

NHTSA recommends the following practices to reduce pedestrian injuries and deaths.

Drivers are required to yield the right of way to pedestrians crossing streets in marked or unmarked crosswalks. This is especially true in situations where drivers are turning right onto another street into the path of pedestrians.
When possible pedestrians should cross at designated crosswalks. Always look left and right before crossing, and if a parked car is blocking your view, stop at the edge line of the vehicles and look before coming around it and entering the street.
Increase visibility at night by carrying a flashlight or retro-reflective clothing.
It is much safer to walk on the sidewalk, but if you must walk on the road, walk facing traffic.

If you have been injured in a pedestrian accident, there may be responsibility on the part of the other driver, on behalf of public entities who maintain the roadway, or on behalf of your own auto insurance carrier if the accident involves a hit and run or uninsured driver.

Where an accident is caused by an insured driver, an injured person can make a personal injury claim against that person's insurance company. In that claim the person can recover for their medical bills, lost wages, future lost earnings, and for pain and suffering.

Sometimes the pedestrian accident can be caused because the particular roadway, intersection or sidewalk was either designed poorly or was not properly maintained. If a dangerous condition of public property was a cause of the injury, a claim can be filed against the responsible entity responsible for maintaining the property. A government claim must be filed within six months of the date of the injury or it will be barred by law in most instances.

Finally, if an injury is caused by a hit and run driver, or an uninsured driver, you should have recourse to your own automobile insurance policy. This is true even if the person injured is a minor in the household and is not of driving age. Every auto policy in California is required by law to include uninsured motorist coverage unless the policy holder specifically declines the coverage in writing. This coverage will provide for compensation for all medical bills, lost earnings, and pain and suffering damages up to the full amount of the amount covered.

As an Alameda personal injury lawyer, I have represented many injured pedestrians over the years. The injuries are often serious and permanent in their repercussions. By following the recommendations above, hopefully we can continue to help reduce the numbers of these types of injuries.

Resources:

Traffic Safety Facts, 2009 Data, NHTSA

Daughter Victim of Hit-and-Run; Mom Wants Answers, Alameda Patch, January 24, 2012

Hayward Construction Worker Died in Preventable Accident: Will His Family Be Entitled to Wrongful Death Benefits?

Mon, 06 Feb 2012 08:30:00 -0800

A Hayward carpenter died on Saturday in what most assuredly was a tragic and preventable accident. Raul Zapata, was a thirty-nine year old carpenter who was married and had three children. When he went to work on Saturday, it appears he was unaware that the City of Milpitas building department had issued a stop order declaring his work site unsafe.

Mr. Zapata was employed as a carpenter working on building a luxury home in a gated community in Milpitas. At the time of his death, he was working inside a hole on the site for a 5800 square foot home. Suddenly, tons of dirt rained over him burying him alive. His nephews who were co-workers saw their uncle buried before their very eyes.

City building inspectors stated that three days before the cave-in, they issued a stop work order because the open trench where he had been working needed to be shored up. There was no system in place to keep the trench from collapsing, especially after recent rains. According to the workers, they were not told of the order by their employer.

When someone is killed while working, the legal question arises whether someone's family has the right to pursue a wrongful death action or whether they are left only with the benefits they would receive under workers compensation laws.

Workers compensation laws provide that if someone dies during the course and scope of their employment, the employer is automatically liable for workers compensation benefits regardless of who's fault the accident is. While the law provides immediate compensation without fault, there are limitations. The family is not entitled to any monies for the loss of the worker's love, companionship, and value to the family. Usually, the benefits paid out do not fully compensate for the worker's loss of future earnings either, which can cause the family extreme financial hardship.

If however, the facts show that someone other than the employer of the worker was negligent and was a cause of the accident, then the family can bring a civil suit (in addition to receiving workers compensation benefits) against the negligent person. These are called "third party" lawsuits. If successful, the family can recover fully for all loss of future income in addition to the more serious loss to the family of the decedent's love, care, companionship, and support.

In Mr. Zapata's case, there will be an investigation into who knew about the stop order and who had the authority and responsibility to make sure the order was obeyed. If a third party, such as an owner or general contractor, was negligent, his wife and three children may well have a legitimate claim for a wrongful death lawsuit against them.

As a Hayward personal injury lawyer, I know that construction accidents can be complicated both in terms of how the accidents occur and in terms of the multiplicity of parties that may be responsible. When someone is involved in construction accident, it is therefore extremely important that the worker, or in the case of his death, his family, contact a qualified personal injury attorney to thoroughly investigate the accident and determine whether the person has any rights beyond our workers compensation laws.

Resources:

No construction to be done for months on Milpitas home where death occurred, San Jose Mercury News, February 1, 2012