Oakland Personal Injury Lawyer Blog

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 CDS 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

Health Insurance: When is a Denial of a Claim Bad Faith in California

Mon, 30 Jan 2012 17:15:35 -0800

In 2009, Jerry Brown, then the attorney general of the State of California, started an investigation into the claims practices of the seven largest health plans in the state. This followed a report by the California Nurses Association that California Health Insurers reject one in five medical claims.

The report found that 22% of all claims from 2002 to 2009 were rejected. The rate of rejection ranged from a high of 39.6% for PacifiCare to 6.5% for Aetna. Aetna Blue Cross, the largest for profit health plan in the state was mentioned as denying 28% of their claims.

Doctors complained that the insurers often delay, shortchange or deny legitimate claims. Legally speaking, this is called "insurance bad faith." Delays or denials of legitimate claims such as these can lead to poor medical outcomes including death.

In California, the laws regarding an insurance company's obligations are clear and well established. Every insurance contract includes a promise of good faith and fair dealing implied by law - meaning the promise is there whether its stated in the contract or not. That means that an insurance company can't do anything that would prevent you from receiving the benefits of the policy that you paid for. It can't unreasonably withhold payments. It can't unreasonably delay payments. It can't unreasonably deny payments. The law also says that the insurance company can't put their own interests above that of its policy holders.

The courts recognize that when people buy health insurance policies, they are buying peace of mind. They are purchasing the assurance that if they get hit with large medical bills their insurance company will be there to protect them. Therefore, the insurance companies also have a legal obligation to do a proper investigation before denying a claim.

When insurance companies fail to meet these important legal obligations and someone's medical condition worsens, or someone dies because of it the insurance company is liable for damages for bad faith insurance practices.

Most commonly we see the following tactics by insurance companies that are trying to avoid their legal obligations to their policyholders:
• Objections that the treatments are experimental
• Objections that the treatments are not medically necessary
• Objections base on post claims underwriting (i.e. going back to your health insurance original application to find any mistake or omission which they now try to use against you to deny the claim)
• Delays and delays in the hope of wearing down the claimant

The proof of these bad faith claims is in the pudding--the claims file. Every phone call, every decision from the claims adjuster at the bottom up through the supervisory level is recorded in the claims file. As an Alameda bad faith insurance lawyer, when a client contacts me after being denied coverage for their health claim, the first thing that I do is to obtain a complete copy of the claims file. Next is the underwriting file. This file shows what coverage the person applied for, the application, and will show whether the benefits sought fall within the type of coverage that the insured sought.

In going through these documents and numerous others, I ask questions such as whether the insurer followed its own policies and procedures, whether it followed the law as set forth in the insurance code; whether it met industry standards in denying the claim; whether it gave as much consideration to its insured's interests as its own. Unfortunately, with the growing number of denials of claims, we often find that the answer to these questions is "no."

The attorney general's investigation appears to be ongoing, so I don't have the results of that available right now. But there is no doubt in my mind, that as insurance company profit margins get smaller, we will see more and more unjustly denied health insurance claims.

Resources:

HMO Claims-Rejection Rates Trigger State Investigation, Los Angeles Times, September 4, 2009

Personal Injury Awards Out of Control: Fact or Fiction. New study shows media influence.

Tue, 24 Jan 2012 09:57:25 -0800

Last week I was in court in Oakland and observed the selection of a jury in a personal injury case, which involved an auto accident. The lawyers in the case asked the jurors their thoughts about the amount of verdicts in personal injury cases. Almost without exception, each prospective juror replied that they felt jury verdicts were excessive and often out of proportion to what they should be. Many of the jurors cited the famous McDonald's case as an example of what they meant.

As an Alameda personal injury attorney, I am often talking to juries. My experience in questioning jurors whether it's an automobile case or any other personal injury claim is similar to what I heard in that courtroom. Unfortunately, jurors ' beliefs about the size of jury verdicts does not match the reality of the awards actually rendered by juries. A recent study by the Center for Justice and Democracy entitled "White Paper: Headline Blues: Civil Justice in the Age of New Media" shows how the media influences the public's misperception about the size of jury verdicts in personal injury cases. It makes several points to show why and how this is happening.

How many times have you seen headlines such as "Woman wins 3.5 million dollars for personal injury claim." It makes it sound like she won the lottery. Often the reality in such cases is that there were very serious and permanent injuries involved, such as brain damage or paralysis, and egregious conduct by the defendant. The study showed that in 39 percent of the articles studied, there was no analysis of the defendant's misconduct, and in 14.5% of the articles there was no description of the type of injury.

Consider the following important points also brought out in this study. In analyzing numerous media articles, the average jury verdict reported was $4,600,000.00. However, according to the most recent U.S. Department of Justice numbers, the median jury verdict for a winning plaintiff in a personal injury lawsuit is just $24,000.00. In other words, the reported verdicts by the media are 192 times higher than what the typical plaintiff recovers in a personal injury lawsuit. No wonder people think that people are gaming the system and that the tort laws need to be reformed.

Sound bites, headlines, tweets, and other bite size pieces of media coverage are distorting what is actually happening in the courtroom. Not surprisingly, people who are sitting on juries in these types of case are skeptical of persons making such claims. Unfortunately for individuals who have suffered serious personal injuries, juries are prejudiced against them before they even walk into the courtroom because the prospective jurors have been saturated with misinformation about what is really happening in our jury system.

As personal injuries lawyers, we must do our part as well. When we obtain significant results for our clients, which also benefit our communities, we should strive to make sure that the cases are reported on in a dignified and accurate manner. The reporting should truly reflect the nature of the case including the seriousness of the client's injuries and the conduct of the defendant that caused such injuries. In this way, juries can come to their job with a sense of duty to the community to see that justice is done in each case instead of a sense of cynicism.

Resource:

White Paper: Headline Blues: Civil Justice in the Age of New Media, Center for Justice and Democracy, October 2011

San Francisco Truck Accident Causes Injuries and Fire

Wed, 19 Oct 2011 16:31:13 -0800

Today, Highway 101 in San Francisco was closed down for over six hours after a big rig overturned and caught fire. The fire engulfed the cab after the rig overturned. Three other cars were involved in the accident, causing personal injuries to the occupants. The truck's driver and a driver of one of the cars involved in the collision were taken to a nearby hospital. There was substantial property damage also done by the fire, and by the truck colliding into the guardrail.

At this time the collision is still under investigation by the California Highway Patrol. Big-rig crashes such as this point out the need for adequate liability insurance. In this case, assuming the truck driver is found to be at fault for the collision there will need to be enough insurance to cover all of the property damage done to the roadway, and the other cars involved in the collision. There will also have to be sufficient liability coverage to compensate all of the other drivers who have personal injury claims.

California law requires higher minimum liability insurance limits for commercial truck drivers than for ordinary drivers. Non-commercial drivers are only required to carry minimum liability insurance limits of $15,000.00/$30,000.00. However, commercial truck drivers must carry minimum single limits of $750,000.00 per accident (California Vehicle Code section 3463.15).

Often times commercial truck drivers carry multiple layers of insurance. If you are injured in a trucking accident, it is extremely important to identify all possible insurance policies which might cover the collision. Unfortunately, as a truck accident lawyer, I have seen too many times where the trucker's insurance carriers do not disclose these other layers of coverage.

I represented a man who was severely injured in a trucking accident where the insurance company lawyers concealed the available insurance company. The case, Dean v Spivey, involved an elderly gentleman,who had just retired. He and his wife were driving on Highway 880 near San Leandro when there was a multi-vehicle collision. In the sequence of the accident, his car was rear ended by a tractor-trailer. As a result, he sustained a large disc herniation in his neck which resulted in partial paraplegia. Initially, the insurance carrier for the trucking company stated that there was a one million dollar insurance policy on the truck. Suspecting however, that there might be other layers of coverage, I subpoenaed the trucking company's insurance brokers records. It turned out that there was an additional $3,000,000.00 in coverage. As a result of this extra investigation, the case was settled for $3,250,000.00, well over the initial layer of coverage.

Truck accidents are often complex. The liability issues can be difficult, and insurance coverages and apportionment between parties make these challenging cases. Folks who are injured in trucking accidents often are severely injured due to the tremendous weights and forces involved in big rig collisions. Therefore, if you or a family member is seriously injured in a trucking accident, it is imperative that a skillful and experienced truck accident lawyer be contacted immediately after the accident to protect your rights.

Resources:

2 lanes of southbound 101 in San Francisco reopened after big-rig fire, Oakland Tribune, October 17, 2011

Oakland Resident Injured in Bus Accident Receives 10.5 Million Dollar Settlement

Tue, 13 Sep 2011 16:51:01 -0800

It was recently announced that AC Transit has agreed to pay a woman $10.5 million in settlement of a personal injury claim arising out of a bus accident. Such eye popping numbers often raise eyebrows and questions about our legal system. In my experience as an Oakland personal injury lawyer, I have found that when large numbers like this are paid out, there are usually very serious and permanent injuries involved. This case was no exception.

In 2008, 23 year old Abby Nicols was crossing the street in a crosswalk, with the green light facing her. An AC transit bus driver took a right turn from an adjacent street and struck her in the crosswalk. Abby was trapped under the bus for fifteen minutes before she could be extracted by emergency personnel. She suffered a crushed hip, and multiple fractures of her pelvis and femur. She suffered permanent nerve damage. This twenty three year old woman will require lifetime medical care for these injuries, including future surgeries. In short, her life will never be the same. In addition to compensation for these tremendous physical injuries, she was awarded compensation for all of her past and future medical bills, and her past and future loss of earnings and earning capacity.

You can see that although 10.5 million dollars is a lot of money, it is not an unreasonable amount considering the life altering effect these injuries had on the young woman. Indeed, there is no question in my mind, that she would rather have not been hit than receive the large personal injury settlement for this bus accident.

Bus companies are often public entities and usually are not easy to deal with. As an Oakland bus accident lawyer, I have had to represent many clients against AC Transit and other transit lines, such as the San Francisco Muni. One thing clients do not realize is that since these bus lines are public entities, special procedures must be taken.

Normally, in a personal injury claim, an injured person has two years from the date of the injury to file a lawsuit. However, when a person is making a claim against a public entity, such as AC Transit, you must file a government claim within six months of the date of the injury. If a claim is not filed within six months, the person will lose their right to sue (subject to some very limited exceptions).

The government claim must describe who was injured, how the injury occurred, the factual and legal basis for the claim, the types of damages sought, and the identity of responsible parties. If a claim is not properly filled out, a party will lose the right to purse that particular theory of recovery. Therefore, it is important to have well qualified legal counsel prepare the claim to assure that all possible theories of recovery are alleged in the claim.

Usually, these government claims are rejected by the public entity responsible for the injury. After the rejection of the claim, the injured person has six months from the date of the rejection of the claim to file a lawsuit. If the lawsuit is not filed within this time frame, the lawsuit will be thrown out of court.
As you can see, government claims procedures are quite complicated. If you are injured in a bus accident, or any type of accident where a public entity is responsible, you should consult with a lawyer well trained in government claims to make sure your rights are protected. For more information, see "Six Things You Should Know if You Want to Sue the Government in California."

Resources:

AC Transit agrees to $10.5 M settlement in crash, San Jose Mercury News, September 13, 2011

California Victory for Insurance Companies Hurts Personal Injury Victims

Fri, 26 Aug 2011 09:43:16 -0800

The California Supreme Court recently dealt a big blow to California consumers and personal injury victims. This follows a trend of decisions which favor large corporations and insurance companies over the rights and needs of the individual. It seems whether its in politics or in the court, the common man and woman are not faring very well in modern times.

The case is Howell v Hamilton Meats & Provisions. It involves a personal injury claim which arose out of a collision between a truck and another driver. The truck, being driven by an employee of Hamilton Meats & Provisions made an illegal U-turn causing the traffic accident. The driver of the other car, Rebecca Howell, suffered serious neck injuries which required spinal fusion surgery.

Ms. Howell protected herself by purchasing health insurance. She incurred medical bills in the amount of $190,000.00. Her insurance company had an agreement with the hospital and other health care providers so that they only had to pay $60,000.00 to pay the bills in full.

Under California law, and the common law throughout the United States, when someone is injured as a result of the negligence of others they are entitled to recover as damages the reasonable amount of their medical bills, in addition to other damages such as pain and suffering, lost earnings, loss of earning capacity etc.

The question in this case was what is the reasonable value of the bills. Is the reasonable value the amount billed by the health care provider or is it the amount the insurance company actually paid to extinguish the bill? The California Supreme Court ruled that the injured party may only recover the amount that her insurance company paid, i.e. $60,000.00, not the amount that was billed by the hospital and doctors, $190.000.00. Thus, Ms. Howell's damages were reduced by $130,000.00.

The ruling does not reflect the economic reality of why these bills are reduced. And, therefore, the ruling does not permit the injured person to recover the full value of their medical bills. What the court addresses in its decision, but fails to fully appreciate, is that the hospitals and doctors are not reducing their bills out of the goodness of their hearts. The bills are reduced because these healthcare providers are receiving other benefits, such as increased business from the insurers, reduced costs in the form of stream lined processing of claims, and other cost saving measures. Therefore, the reasonable value of the medical bill incurred is closer to the full billed amount than the reduced amount that the insurer actually pays.

Additionally, the court fails to address the everyday reality of how trucking accident claims, such as this, are settled. Invariably, the health insurer who paid the medical bills has a lien against any third party claim, such as auto accidents, slip and falls, or any general negligence claim where someone has filed a personal injury lawsuit or claim. This means that the health insurer has a legal right to be fully reimbursed from the personal injury claim for the amount it has paid out. So in Ms. Howell's case, she will receive nothing for her medical bills--the full $60,000.00 will most likely go to her health insurer. The difference between the amount billed, and the amount received, $130,000.00 will go to the benefit of the person who made an illegal u-turn and caused her a serious disc injury resulting in spinal fusion. Where is the justice in that?

As an Alameda personal injury attorney, I have observed that for many years, starting in the 1950's through the 1970's California courts were stalwarts of protecting the rights of the injured. They were leaders in developing the law in products liability and insurance bad faith law among other areas. More recently, the California Supreme Court cases have swung in the opposite direction. More and more, the decisions favor large corporations, insurance companies and the powerful. The Howell case is just one more in a line of such cases. One can only hope the the California legislature will correct this injustice.

Resource:

CA Supreme Court tort case ruling helps insurer, San Francisco Chronicle, August 19, 2011

San Jose Police Report Will No Longer Respond to Non Injury Auto Accidents

Wed, 24 Aug 2011 10:28:14 -0800

The San Jose Police Department recently announced that it will no longer come to the scene of a non-injury car accident. The department is facing large budget cuts and will not be doing accident investigations for these types of car crashes. As an Oakland personal injury lawyer, I have seen this trend for years. The cities of Oakland and San Francsico frequently will not respond to non-injury automobile accidents either. So the question becomes what should you do to protect yourself if you have been involved in a traffic accident and the police will not respond?

The following are some tips to follow if you have been involved in an accident where the police will not investigate.

Photos, Photos, Photos: Many people today have digital cameras on their phone. It's important to document a scene after an accident occurs. Therefore, if you can, take pictures of the cars where they came to rest after the collision. This will help reconstruct the accident if there is any conflict between the parties as to how the accident occurred. It's also important to photograph skid marks. The length of the skid mark can later be used to determine the speed of the vehicle at the point of braking. If there is debris on the ground, such as broken headlights, taillights, or other car parts, these should be photographed as well. These photos can be used to establish the point of impact which again can be useful in determining fault in the accident.

Personal Information: Get as much information as you can from the other person(s). At a minimum you should have their name, address, home telephone, work telephone, driver's license number, and car license number. Again if you have a camera phone, a simple way to capture this information is to photograph the other person's driver's license, confirming with the other person that the information is current. Additionally, getting the person's employment information is important as well. All of this information is useful, because if you cannot resolve your claim with the insurance company, you may have to sue the individual. If you are going to sue for damages related to your auto accident, you will need to know the location of the person who hit you so you can have the complaint properly served on them. People move frequently, so that's why it's good practice to have their employment information as well.

Insurance information: The law requires that a person carry proof of insurance with them while driving their car. The proof is generally on a small card or piece of paper which has been prepared by the insurance company. You need to get the name of the insurance company and the policy number. The proof of insurance will also have the dates of coverage. You want to make sure that the policy was in effect at the time of the accident.

Witness information: If there are independent witnesses, you should get their names, addresses, and telephone numbers. If there is any dispute as to who is at fault for the accident, the insurance companies, and for that matter, judges and juries put great weight on independent witnesses. Don't assume that just because the other person admits fault at the scene of the accident, that you don't need the names of witnesses. It is not uncommon for parties to change their minds about what they believe happened after an accident. If this is the case, an independent witness will be very valuable in helping determine the truth about the actual facts of the accident.

Frequently, people suffer personal injuries at the scenes of accidents but do not feel it immediately. There are several reasons for this. Adrenaline rush may mask symptoms initially. Also, it takes time for inflammation to develop. That is why people who suffer a neck or low back sprain often do not feel the symptoms such as pain, stiffness, and loss of motion for several hours following a collision.

If you follow the above steps following an accident, you will have obtained all of the information that a police officer usually gets when making a report. If it later turns out that you are injured and need to file a personal injury claim, or the other person changes their version of how the collision occurred, then your rights will be protected. For further information following an accident, read "Eight Common Mistakes That Can Cost You Thousands of Dollars When Dealing with Insurance Adjusters."

Cash Strapped San Jose Police Won't Respond to Low-Priority Calls, CBS San Francisco, August 17, 2011

Personal Injury Lawyers told Not to Accept High Speed Train Crash Cases in China

Tue, 09 Aug 2011 16:21:46 -0800

Last month forty people died in a high speed rail crash in China. The collision occurred outside Wenzhou, when two high-speed trains collided. The accident has raised questions about the safety of the Chinese high speed rail system which is now the largest high speed system in the world, just four years after the system opened. Shortly after the train wreck, legal authorities in China ordered attorneys not to accept personal injury or wrongful death cases. Lawyers were also required to report immediately to the government the names of injured passengers or families of the deceased who come in for legal assistance.

The collision itself was a national tragedy. Given the approach of the Chinese government to insulate lawyers from the investigatory process, we may never know what were the true causes of this tragedy and how it could have been prevented. This is in stark contrast to how personal injury claims are handled in the United States and other western countries with progressive legal systems designed to protect the rights of personal injury victims.

A recent car crash in the news may help illustrate the point. On July 31, 2011, a woman was killed on Highway 580, on the Altamont Pass near Livermore when her car went off the road falling down an embankment over 200 feet. The collision caused her car to overturn several times and ultimately explode into flames. The cause of the accident is still under investigation by the police.

In this instance, the traffic investigation may reveal an unsafe road condition. The roadway may be lacking appropriate guard rails, have other improper grading, or there may be other roadway design factors which may have contributed to causing this crash. If that is the situation, a government claim may be filed against the State of California alleging a dangerous condition of public property. Once the claim is filed, extensive discovery can be conducted to help determine the cause of the accident, and whether the State of California maintained an unsafe condition on the highway.

As an Alameda personal injury lawyer, I was recently involved in the representation of a family which had a serious accident on the Altamont Pass. Their car also went off the road and down an embankment causing several family members serious injuries. During the course of the lawsuit, documents were obtained which showed that the CHP was concerned about vehicles leaving the roadway in the area of the accident and requested CalTrans to place guardrail in the area. Depositions of investigating police officers and tow truck drivers who worked in the area testified that they had witnessed in excess of fifty accidents in the area. This type of information became available only because we have a legal system in California which is designed to let injured parties perform extensive investigative discovery in conjunction with a personal injury lawsuit.

It seems that this type of open investigative process, designed to get to the truth, and protect the rights of personal injury victims, is something which is not embraced by the Chinese government. Unfortunately, there are many well heeled factions who would like to limit the rights of injured parties in the United States as well. Insurance companies, the Chamber of Commerce, and other corporate interests espouse something they euphemistically call "Tort Reform." These so called reforms are really programs designed to limit people's right to full discovery, to full compensatory damages, and to even limit the types of suits that can be filed. So the next time you hear someone talk about "tort reform", you might ask yourself whether you would prefer your legal system to be more like the Chinese system or one that fully protects the rights of the individual.

Resources:

China lawyers 'told not to take rail crash cases', AFP, July 30, 2011

Woman killed in fiery crash on Altamont Pass, Contra Costa Times, July 31, 2011

Motorcyclist Dies in Helmet Law Protest

Tue, 26 Jul 2011 16:35:32 -0800

A motorcyclist was driving his bike in a protest ride against New York helmet law, when you guessed it, he had a serious accident. As part of the protest, he was not wearing his helmet. He died when he flipped over his handlebars and landed on his head on the roadway. Investigating police officers said the motorcyclist hit his breaks, lost control of his bike, fishtailed, and then the flew over the handlebars. He was taken immediately to the hospital where he was pronounced dead.

California has strict laws regarding the use of helmets designed to reduce personal injuries while operating a motorcycle. California Vehicle Code section 27803 provides: "(a) A driver and any passenger shall wear a safety helmet meeting requirements established pursuant to Section 27802 when riding on a motorcycle, motor-driven cycle, or motorized bicycle.
(b) It is unlawful to operate a motorcycle, motor-driven cycle, or motorized bicycle if the driver or any passenger is not wearing a safety helmet as required by subdivision (a).
(c) It is unlawful to ride as a passenger on a motorcycle, motor-driven cycles, or motorized bicycle if the driver or any passenger is not wearing a safety helmet as required by subdivision (a).
(d) This section applies to persons who are riding on motorcycles, motor-driven cycles, or motorized bicycles operated on the highways.
(e) For the purposes of this section, "wear a safety helmet" or "wearing a safety helmet" means having a safety helmet meeting the requirements of Section 27802 on the person's head that is fastened with the helmet straps and that is of a size that fits the wearing person's head securely without excessive lateral or vertical movement.
This section does not apply to a person operating, or riding as a passenger in, a fully enclosed three-wheeled motor vehicle that is not less than seven feet in length and not less than four feet in width, and has an unladen weight of 900 pounds or more, if the vehicle meets or exceeds all of the requirements of this code, the Federal Motor Vehicle Safety Standards, and the rules and regulations adopted by the United States Department of Transportation and the National Highway Traffic Safety Administration."

In 1993, the constitutionality of this law was challenged by motorcycle enthusiasts in the case of Buhl v Hannigan. The challengers claimed that the law was vague, was not related to a legitimate state concern, that it violated their right to freedom of expression and right of privacy. All of these arguments were shot down by the court, which explained that the legislature has a right to pass law which are in the interest of the public safety.

In 2009, there were 4,462 motorcyclists killed in accidents. Another 90,000 were seriously injured during this same time period. NHTSA estimates that helmets saved the lives of 1829 motorcyclists and estimated that if all cyclists used helmets and additional 823 more lives could have been saved. NHTSA states that helmets are 37 per cent effective in preventing deaths due to head injuries, and 67 per cent effective in preventing traumatic brain injuries.

As an Alameda motorcycle injury lawyer, I have represented numerous motorcycle accident victims. The use of a helmet almost always mitigates the potential for serious head injuries. Therefore, I strongly support helmet laws in California and in all jurisdictions.

Resources:

NY Motorcyclist dies on ride protesting helmet law, Associated Press, July 3, 2011

National Conference of State Legislatures, June 2011

Bumper Cars Gone Wild: California Court Finds That a Rider Does Not Assume the Risk of Personal Injury at an Amusement Park

Mon, 18 Jul 2011 14:06:45 -0800

When summertime comes, we tend to go to amusement parks. Whether it's the Santa Cruz Boardwalk, Raging Waters in San Jose, Six Flags in Vallejo, or Disneyland, going to amusement parks and water slide parks during the summertime is about as American as apple pie. A recent California Appellate case elaborates upon your legal rights if you have suffered a personal injury at an amusement park.

The case is Nalwa v Cedar Fair LP. The facts involve a woman who was riding on a bumper car at California's Great America Amusement Park in Santa Clara, California. The woman, who was a physician, was riding the bumper car along with her children who were in other cars. During the course of the ride, her car was struck head on by another bumper car and during the collision she broke her wrist.

The evidence in the case showed that the defendant owned and operated four other amusement parks throughout the country. At the other parks, the defendant configured the traffic so that all the cars traveled in one direction to help prevent head on collisions. There was evidence that the defendant knew that the one directional travel helped to reduce injuries. However, at the Santa Clara park, unidirectional travel was not employed. Instead, employees of the park were told to warn riders after a head on collision to stop that activity.

The injured doctor brought suit for personal injuries against the owners of Great America claiming that the defendant was a "common carrier" and that it was negligent in the operation of its bumper car operation. The defendant filed a summary judgment motion to have the case dismissed on the grounds that by getting on the ride the doctor "assumed the risk" of getting injured by getting on the ride. Although the trial court agreed with the defendant's position, the California Court of Appeals reversed the decision of the trial court and held that the amusement park owner owed the injured doctor a duty of care to operate its rides in a reasonably safe and prudent manner.

In upholding the doctor's right to sue the amusement park for the personal injuries she sustained, the court rejected the idea that by merely getting on a ride she assumed all risk of injury. It cogently observed that people do not go to amusement parks expecting to be injured. Common sense tells us that breaking a bone is not a natural or expected consequence of getting on a ride. The court stated, "The very reason we go on amusement park rides is because we seek the illusion of danger while being assured of a ride's actual safety. The rider expects to be surprised and perhaps even frightened, but not hurt."

Amusement park ride injuries are not uncommon. Although data is limited, because reporting of injuries at parks is often not required by law, the Consumer Product Safety Commission noted that in 1996, there were over 8,000 amusement park injuries nationwide.

As an Alameda personal injury lawyer, I have handled many personal injury cases against amusement parks over the years. Because the rides often involve high speeds, the injuries can often times be severe. Many times the amusement park owners will argue, as was done here, that the patron who paid money to enter their facility, assumed any risk of injury that they suffered on the ride. As the court rightly concluded here, that is nonsense. People go to these parks assuming the rides are safe for use. They don't go expecting an injury. Alternatively, the parks will also have riders sign waivers or releases of responsibility to try insulating themselves from liability if their customers are injured. Frequently, however, these types of waivers are held invalid as being against public policy.

Resources:

California Research Bureau, Safety and Oversight of Amusement Rides in California, August 1997

California ATV Accidents on the Rise: What to do if You Have Been Injured in an ATV Accident

Thu, 07 Jul 2011 09:48:26 -0800

Summertime means vacations and outdoor fun. Over the years all terrain vehicles (ATV's) have steadily increased in popularity as recreational vehicles. Unfortunately, most consumers are unaware of the hidden dangers of these vehicles and the number of deaths and serious personal injuries associated with their use.

The Consumer Product Safety Commission reports that over the 2010 Memorial Day weekend alone, there were a reported 28 deaths related to ATV use. That's an average of 7 deaths per day over that one holiday weekend. Between 2004 and 2006, deaths of children under the age of 16 increased more than 65%.

In California the number of reported deaths is staggering. Between 1982 and 2009, there were 560 fatalities associated with ATV's. 101 of the deaths between 1982 and 2006 were children under the age of 16.

California has passed various ATV laws to help reduce the number of injuries and deaths associated with these recreational vehicles. Operators are required to wear helmets on public lands at all times. All operators under the age of 18 must possess a safety certificate or be with an adult with a safety certificate if operating on public lands. Passengers may not be carried while on public lands, except one passenger may be carried if the particular ATV is designed to carry a passenger. The ATV may not be used on highways, except to cross highways. Click here to obtain more information about ATV training.

Obeying the safety laws however, does not prevent serious ATV injuries and accidents. There has been many wrongful death and personal injury lawsuits alleging that the design of particular ATV's are contributing factors to these accidents. These product liability claims often look at whether the center of gravity of these vehicles is too high causing them to be unnecessarily top heavy. The Yamaha Rhino 450 and 650 have been widely criticized. Critics claim that the vehicles were involved in numerous slow speed rollovers on flat terrain. Safety experts say the high center of gravity and narrow tires for these vehicles make them especially prone to rollover accidents.

Yamaha issued a safety recall of these vehicles in 2007. Owners of 2004 through 2007 models can have their vehicles modified. The safety modifications are free of charge.

Because ATV's, unlike cars, do not have doors or rollover protection, occupants can becoming easily trapped if the ATV turns over. This can result in crush injuries resulting in amputation of the limb. Other injuries often associated with ATV accidents involved permanent brain trauma, and spinal cord injuries resulting in paralysis.

As an Alameda personal injury lawyer, I know that litigation in this area is challenging. In order to be successful in these type cases, you need an experienced products liability lawyer to review the case. Due to the complex nature of these case, they can be extremely expensive to litigate. The products liability lawyer must be familiar with and have access to the types of experts needed to prove not only the design defect, but the causation issues in the case, i.e. how did the design defect contribute to cause the accident in questions. Typically, experts used in these cases include biomechanical engineers, mechanical and design engineers, accident reconstructionists, handling and safety stability professionals.

As with any personal injury case, acting promptly after an injury occurs is extremely important. It is vitally important that the scene of the accident be investigated and photographed. The ATV in question should immediately be stored for preservation of evidence and inspection by experts. Interviews of potential witnesses should be done immediately before witness's memories fade.

Resources:

CPSC, CPSC Warns Memorial Day Weekend Among the Deadliest Holidays for ATV Riders, May 27, 2011

City of Oakland Pays $750,000.00 to Pedestrian Injured on Sidewalk: An Example of a Dangerous Condition of Public Property Claim

Mon, 27 Jun 2011 15:09:56 -0800

On September 19, 2007, Monica Orduno was a pedestrian near the intersection of West MacArthur and Martin Luther King Blvd. in Oakland. A car which was making a left turn collided with another vehicle. That car spun out of control and pinned Ms. Orduno against a concrete planter box.

A government claim for personal injuries was filed against the City of Oakland claiming that the intersection was dangerous because it lacked a left turn lane. Ms. Orduono was a working, single mother, who lost her leg in the accident. She had incurred over $750,000.00 in medical bills and expects to incur $2.5 million in future medical expenses.

Not a lot of information is reported about how the lack of the turn lane contributed to the occurrence of the accident. However, it is often the case that there are more factors involved in a car accident than just the motorists involved. Often times, the design of a roadway or intersection, poor lighting, poor signage, inadequate or faded striping, or other features of the roadway can contribute to the causation of a serious personal injury car accident. Therefore, whenever there is an auto accident with catastrophic or permanent injuries, there should be an immediate inspection of the accident scene.

A government is liable for a dangerous condition of the roadway if the following factors are present: First, there must be a dangerous condition of public property, which is defined as a condition that creates a substantial risk of injury to the public, when the property is used in a reasonably foreseeable manner. Second the dangerous condition created a foreseeable risk of the type of accident which occurred. Third, the public entity which owned or controlled the land either created the dangerous condition or had ample notice of the problem long enough before the accident to have had time to fix the problem. And finally, it must be shown that the dangerous condition was a substantial factor in contributing to the accident in question.

The government has numerous defenses and immunities which apply to these types of cases. One of the most common defenses is called a design immunity which protects the government if the design of the particular roadway was made pursuant to a duly approved design. However, even that immunity can be overcome if physical conditions had changed since the original approval of the design.

Due to the complexity of these type auto cases, an immediate investigation must be done before the physical conditions of the accident site change. This involves the hiring of expert witnesses familiar with highway design cases. In a typical highway design case, our office would immediately hire an accident reconstruction expert to examine the scene of the accident, the vehicles involved, and review all pertinent police investigations which were conducted. Additionally, a traffic engineer is retained to analyze the accident scene to see if it comports with traffic safety design standards, and whether it meets standards as set forth in the California Traffic Design manual. Finally, a human factors engineer is hired. This type of expert is a multi-disciplinary expert who has expertise in psychology, engineering, and design who analyzes the design features of the accident scene in light of human beings usual physical and psychological capabilities. Such experts are necessary to prove that a dangerous condition existed and to show how the condition contributed to the actual causation of the accident.

Since these types of cases are generally filed against public entities, such as cities, counties, or the State of California, it is imperative that a government claim be filed within six months of the date of the accident. If a claim is not filed within that time frame, the claim will be barred by law subject to a few, very limited exceptions.

As a car accident lawyer in the Oakland, Alameda area, I have seen over the years how poor roadway design can cause dangerous highway conditions which can contribute to serious auto accidents. Whenever serious accidents occur, it is alway prudent to look at all surrounding circumstances to see if roadway conditions played a part in the crash.

Resources:

Oakland Tribune, Oakland pays $750,000 to woman hit by car on Martin Luther King Jr. Way, June 21, 2011