San Francisco Injury Attorney Blog

Experts disagree on whether San Francisco auto accident killed cop

Thu, 02 Sep 2010 17:50:18 -0800

In a San Francisco jury trial recently, the jury heard conflicting medical expert testimony about whether a car accident caused fatal injuries to a San Francisco police officer. As reported in a story in the S.F. Chronicle , an M.D. disagreed with a pathologist about whether the auto crash caused the officer's death.

I frequently see these causation questions in injury accident cases in San Francisco and around the Bay Area. Even where everyone agrees who caused an accident, the injuries caused by that accident can be hotly disputed. Oftentimes, even when an person had no pre-accident symptoms in an injured part of their body, insurance companies will dispute the claim, and hire a doctor to say that this was a "pre-existing injury." The trauma of an auto accident can also "exacerbate," or "light up" a pre-existing injury, which caused little or no problems before the accident. This San Francisco police case illustrates how even a death in a car accident can be challenged as to causation.

These disputes over causation of injuries can turn what may have seemed like an uncomplicated personal injury case into an expensive battle of experts. This is a prime example of a situation when having an experienced personal injury lawyer, with good knowledge of anatomy and the relevent medicine, can make all the difference. Knowing the best experts in orthopedics, neurosurgery, etc., is also crucial to assemblying a strong team to take on the many doctors who are extremely well paid to testify for the insurance carriers. In almost every significant injury case now, there is a "defense doctor" hired to minimize or challenge causation for the claimant's injuries. Thus another important job for personal injury attorneys is to keep tabs on these doctors. I serve on the Experts Committee of the San Francisco Trial Lawyers Association, where we pool resources such as deposition and trial testimony transcripts, and medical reports of the doctors used frequently by insurance companies.

The many challenges of dealing with disputed causation in California personal injury cases highlights the importence of having a capable, experienced attorney on your side.

California Driver Blacks Out, Causes Injury Accident

Fri, 13 Aug 2010 09:38:24 -0800

A San Diego jury heard a case involving a Pizza Hut driver who blacked out while driving, resulting in a severe personal injury accident. The driver claims that she had no prior knowledge that she was subject to blackouts, and does not remember what happened in the accident. Under California law, a driver can be relieved of responsibility for an injury accident when unforseen medical condition causes a blackout.

This type of injury car accident, with a driver blackout, happens with some frequency here in the San Francisco Bay Area. Since the law will allow a party to avoid responsibility when the potential for blackouts was unknown, these cases involve much investigation into the driver's medical history, and exactly how the blackout happened. A San Francisco case that received a lot of attention a few years back involved an elderdly driver who lost control of his Cadillac while headed down a very steep hill, causing a severe accident. In that case, though, witnesses saw that the driver's eyes were open as he sped down the hill, and his estate was held responsible for all the personal injuries that the accident caused in San Francisco's Noe Valley.

In the San Diego injury case, the injured parties' lawyers knew that Pizza Hut and the driver might be relieved from responsibility due to an unforseen medical condition, so they added claims that Pizza Hut should have done more to make sure that the driver was fit to drive. The jury rejected those claims, since the driver had a license and a good driving record, but found that the driver had some prior knowledge of the medical condition which caused the seizure, and was therefore responsible for the personal injuries. This in turn made Pizza Hut responsible as the employer of the driver at fault. News reports state that the jury came back with a verdict of $10.8 million.

Can My San Francisco Accident Attorney Handle My Out Of State Injury Case?

Wed, 07 Jul 2010 09:55:54 -0800

From time to time I am asked if I can handle a personal injury claim for someone who lives here in the San Francisco Bay Area, but was injured in a car accident or other incident elsewhere. The answer is always yes. Personal injury cases are generally "venued" in the state where the injury occurred, or where the party at fault lives. To litigate a case outside California, local counsel are properly retained in the place where any necessary lawsuit will happen. Done properly, this will not increase the client's fee at all.

There are many advantages to hiring an attorney near home. Meeting with your attorney from time to time during a case is important. Having to travel to have an initial meeting and hire someone can be inconvenient for someone recently injured. When the injured person is asked about travel after an injury, as often happens, it will not sound good that the first trip post-injury was to seek a lawyer. By retaining someone locally, clients can have a professional find and hire any "local" counsel needed, and still have someone nearby with whom to work.

Over the years, we have worked with people whose cases are in various other states, and even in Canada. If the case must go all the way to a judge or jury trial, (as happens with less than 10% of injury cases) a California lawyer can also gain special, limited admission to the local bar so that he or she can represent the client in an out-of-state court.

The same principal applies to someone with a personal injury case in California, but far from the San Francisco Bay Area. Hiring someone close to home is even easier when the case is based in California, as local counsel may not even be necessary, and no special permission is needed.

Will My California Insurance Cover Me For Car Accidents In A New Car?

Wed, 07 Jul 2010 09:53:18 -0800

Of course no one wants to drive for even a minute without insurance against claims for personal injury caused by a car accident, and for damage to any cars in an accident. Here in San Francisco, car accidents can cost tens of thousands of dollars even if no personal injury is involved. Sometimes, people will delay taking delivery of a new car until they have notified their insurance carrier of the purchase. But, especially with used cars purchased on an evening or weekend, this is not always feasible. This can be especially inconvenient if the car you are buying is far from home. Fortunately, most major insurance carriers will cover you for damages caused by a car accident, including personal injury claims, when you buy a new or used car, even though you have not given them any advance notice. Typically, you must notify the carrier and confirm coverage of the additional car within 30 days of purchase. The coverage extended for "newly acquired" cars is usually the same coverage you had for your other car or cars.

Before you rely on this coverage, you should either look at your policy brochure, and/or call your agent to confirm that this type of coverage is included in your policy. Look in the Definitions section at the beginning of the policy for the phrase "newly acquired." Auto insurance carriers typically don't put their policy terms online, but here's a link to a recent State Farm Policy. Look on page 2 for the "newly acquired" terms. Here's an important warning though: If you have an older car, and have dropped collision and/or comprehensive coverage, you will need to make arrangements with your agent before you put your new car into gear.

After you confirm that your policy does include full coverage for "newly acquired" cars, you are free to shop, buy, and drive right off with the confidence that you are covered so long as you inform your insurance company within the 30 days specified. If the "newly acquired" car is replacing one of the cars on your policy, rather than adding an additional car, you may be covered even if you do not notify the insurer. To be sure you are covered for car accidents in California, though, you should always notify your carrier of a car purchase well within the thirty days.

Can I Arbitrate My San Francisco Kaiser Malpractice Case Without A Lawyer?

Fri, 04 Jun 2010 15:27:18 -0800

From time to time people in San Francisco, Oakland, and around the Bay Area ask me if they need an attorney to pursue a claim in the Kaiser malpractice arbitration system. Reading the Kaiser Arbitration Rules, you could easily get the impression that you could file a claim without a lawyer. The Kaiser arbitration administrator's website explains where you write to start your claim, etc. Unfortunately, proceeding with an arbitration claim involves all the same maneuvers involved in a lawsuit in court, and all the same rules apply. This is impossible for people most to do for two reasons: The first reason is simply that they are not lawyers, and do not know the law, such as the rules of Civil Procedure. The second reason is that the medical experts, who are vital for a Kaiser medical malpractice case, will normally not work with anyone but a lawyer.

Why won't medical experts "go direct" with a claimant in a Kaiser malpractice case in the San Francisco Bay Area? These experts already believe that they are sticking their necks out to be testifying against a fellow doctor. They want the discretion, protection and proper handling that a lawyer will likely provide, as well as assurance that their high fees will be promptly paid.

Kaiser malpractice arbitrations are normally heard from a lawyer or retired judge who is on the panel managed by the Office of the Independent Administrator. Every experienced Kaiser arbitrator's history file shows multiple cases where a person represented themselves, only to have the case lost to a Motion For Summary Judgment-a pre-arbitration motion to dismiss the case. Responding to one of these motions is very burdensome for an experienced attorney, and requires a very detailed declaration under penalty of perjury from a medical expert. Thus, very few people without lawyers ever get to actually attend a Kaiser arbitration.

Due to the high costs of bringing a case, and the M.I.C.R.A. law limits on fees and recoverable damages, many, many people with meritorious cases are unable to get a lawyer to take their Kaiser case. Unfortunately, the great majority of these people do not have any other way to proceed, and are forced to drop their cases.

Proving Fault In A Bay Area Slip or Trip and Fall Injury

Thu, 27 May 2010 15:13:18 -0800

I get many calls from people who were injured in San Francisco, Oakland, and the greater Bay Area in falls in stores or restaurants. Often times, the callers think that falling in a store or restaurant automatically means that they can recover damages. And to a very limited extent they are actually right: most businesses here in the San Francisco Bay Area have something called "premises medical payments" insurance coverage. This is a category of insurance that will pay medical bills for someone injured on the insured premises, irrespective of any negligence or fault. Unfortunately, this "medical payments" coverage is usually very limited-$2,000 or $5,000 are common policy limits. To recover anything else, you will have to prove that the property owner did something wrong.

Many of these cases, known to lawyers as premises liability cases, involve a substance or thing on the floor, such as a spilled liquid, or some merchandise, packing, or other items. To recover full compensation from the store or restaurant in this situation, we have to be able to prove one of two things: Either the staff caused the dangerous condition or knew about it, and that they had an opportunity to remedy it, but failed to do so. Often we don't know, and can't prove, how the thing that caused the fall got on the floor. If we can show that an employee caused the condition, there's no need to prove they had notice of it. In other cases, the law assumes that the store or restaurant owner knew about the dangerous condition if there's evidence that it was there for about a half-hour, or if there's evidence that an employee actually saw it or was told about it. Thus, if you slip on something spilled by another customer just a few minutes earlier, you may not have a case. Stores maintain "sweep logs" to use when claims are made, to show they have met their duty to inspect regularly. Sometimes, we find that the store did a better job filling in the log than they did actually inspecting the floors, though. These cases can be tough and hard-fought in California.

San Francisco Bike Accidents: Should the Helmet Law Apply to Adults?

Thu, 20 May 2010 15:37:22 -0800

In California, and about half the other states, the law requires minors to wear a helmet when on bikes. Bike accident statistics strongly support the position that helmets save lives for adults as well as kids involved in bike accidents. But no U.S. state requires adult riders to wear helmets, as many do for motorcycle riders. Some cities, though, including El Cerrito, California, require everyone to bike with a helmet. Where you stand on the question of whether adults should also be required to use helmets for biking probably involves not only you views on safety, but also your views on how much the government should tell us what to do when the only person at risk is ourselves. I have found it interesting to see that in Europe, there are lots more adults using bicycles for urban transportation, and the great majority of them are not wearing helmets. Case in point: the man in Amsterdam biking with a tote bag in the photo with this post.

From a safety perspective, there is strong evidence that helmets make a big difference in bike accidents: an Insurance Institute for Highway Safety study showed that over 90 percent of the 714 bicyclists killed in 2008 were not wearing helmets. Even a light blow to the head can result in a minor traumatic brain injury (MTBI). Neurologists and neurosurgeons report that those of us over 30 experience some brain shrinkage, which results in more bouncing around in the skull when we strike our heads.

If you are shopping for a helmet, be sure to choose one that is approved by the Federal Products Safety Commission, which does safety testing for bike helmets. Cycling experts agree that helmets should be replaced after an accident, as the foam can lose some of its ability to absorb impact, even when it appears to be undamaged.

How to decide if you need a lawyer for your San Francisco car accident case

Thu, 13 May 2010 10:41:08 -0800

One question people injured in car accidents in San Francisco, Oakand, and all over the Bay Area have been asking me for many years is whether or not they should hire an attorney to handle their injury claims. Of course, they know that an lawyer is not an unbiased source of information on this question. But it's my duty to give the most even-handed advice I can. If I don't think I can add value to the client's bottom line recovery, I will not take a case. For some small cases, with a fairly quick, full recovery, the answer is no, you may not need an attorney. In that type of case, even the lower settlement you get may be about equal to what you could pocket after attorney's fees and costs were deducted from a higher settlement. Small claims court is another viable option for people who are comfortable presenting their case to a judge, and the recovery limit was raised to $7,500 a few years ago.

But for cases much beyond the small claims court limit, a good personal injury lawyer will most often be able to get you much more in your pocket than you could achieve on your own. Insurance carriers just don't take unrepresented injury claimants very seriously. They know that they won't be able to evaluate the true worth of the case, and that they will probably just settle for what they can get. Also, most of us who don't do it for a living are poor negotiators--just look at what happens at car dealerships. The major auto insurance carriers also rank lawyers, and settlements can vary depending on who you choose. They know that some lawyers like to settle other cases, and that others will take them to court and fight until their client's claim is compensated fairly.

Starbucks Sued For Burns From Hot Tea

Wed, 12 May 2010 17:49:32 -0800

A woman burned by hot tea at a Starbucks has sued the chain, alleging negligence. This will no doubt bring back memories of the infamous McDondald's coffee case of years past, where a woman sued after spilling hot coffee into her lap that she had purchased in a drive-through window. In San Francisco, or anywhere in the Bay Area, I cannot go to court and select a jury without hearing about that McDonald's coffee case from many, many prospective jurors. That case really touched a nerve with the public. Since the new case against Starbucks happened in New York, I looked at the reader comments on the NY Daily News website. No surprise: 44 out of 44 comments were negative about the case.

I have no idea whether this Starbucks case has merit or not. In the McDonald's case, the woman who was burned was able to prove to the jury that McDonald's was keeping its coffee about 40-50 degrees hotter than the industry standard, and that McDonald's knew that this had caused severe burns in over 700 people on prior occasions. If the plaintiff in this Starbucks case cannot show that Starbucks was out of line with the industry standards, as McDonald's was, I predict this case will fall flat, as most people seem to think it should. Either way, the publicity from this NY case is likely to cause more people to be skeptical about San Francisco personal injury lawsuits.

California Kaiser Malpractice Claims - Must/should you arbitrate?

Mon, 03 May 2010 15:20:24 -0800

In the San Francisco Bay Area, most Kaiser medical malpractice claims in San Francisco and the Bay Area are normally heard in a private arbitration, rather than proceeding in court. This is due to the Kaiser arbitration agreement, which calls for arbitration in Kaiser's own system, uder their own rules. Arbitration is a system where cases are heard with the same procedural rules as a court trial, but in a private setting, before an arbitrator, or panel of three arbitrators, who serve as the judge.

The Kaiser malpractice arbitration system is overseen by an independent office. The independent administrator was set up after a notorious case where Kaiser delayed even choosing an arbitrator so long that the claimant died before the case could proceed, cutting Kaiser's liability substantially. Now, recent California court decisions have found that the forms Kaiser used until recently are invalid, for failing to comply with strict legal requirements that apply to waiver of the right to a jury trial. So for many people with malpractice claims against Kasier in Northern California, there is a choice: proceed under the Kaiser arbitration system for a malpractice claim, or sue in court.

The choice often will be heavily influenced by the venue of the case-the county in which a court case would be heard. If the venue is a big urban area such as Alameda County or San Francisco, lawyers agree that there is a much greater chance of getting jurors who are willing to find for a person suing a doctor or Kaiser. The individual facts of the case will also be part of the decision. The conventional wisdom is that in arbitration, even a victory will often be a compromise, compared to what a sympathetic jury might award. The Kaiser arbitration system draws from a panel of about 250 lawyers and judges, and many of these people are perceived as wanting to please Kaiser, such that attorneys for claimants would not see them as fair. Often it is a struggle getting a reasonable arbitrator in the Kaiser system.

The question of whether to opt out of the Kasier arbitration system for malpractice cases is one that will be largely, if not completely made by the attorney handling the case, but one that must be understood and approved by the client.

Another San Francisco Injury Streetcar Accident

Sun, 11 Apr 2010 16:04:21 -0800

Many San Francisco car accidents are caused by our streetcars, also known as light rail vehicles, or LRVs. Many people do not realize how much longer it takes streetcars to stop. There is essentially a double delay: LRV brakes do not even begin to work until a second or two after they are applied, then they stop the car much more slowly than a car's brakes would. On San Francisco cable cars, the primary brake is a pine block! Many San Francisco car accidents are caused by our streetcars, also known as light rail vehicles, or LRVs. Many people do not realize how much longer it takes streetcars to stop. There is essentially a double delay: LRV brakes do not even begin to work until a second or two after they are applied, then they stop the car much more slowly than a car's brakes would. On San Francisco streetcars, the primary brake is a pine block.

A recent accident, on April 6, 2010, was covered in a San Francisco Chronicle piece. The same story was picked up nationally in a Associated Press story. This injury accident was caused by faulty brakes on the streetcar. In this injury accident, the streetcar hit a bus from behind, pushing it into the streetcar, which then hit passenger cars.

Another factor in car accidents involving streetcars is the physics: since "light" rail vehicles are actually massive and heavy, they cause much more injury-producing forces at any given speed than a car would.

I think people can always use another reminder about the need to act quickly in a personal injury claim involving San Francisco, or any other town or city: there is a six-month claims filing deadline. This also applies to community hospitals, such as San Francisco General Hospital, and Highland Hospital in Oakland, as well as any claims against the State of California. Anyone injured in an accident that was caused by a government-funded employee should seek a personal injury attorney promptly, so that this crucial deadline, called the statute of limitations, will not bar the claim.

California Driving: How to set your car's mirrors to really see your blind spots

Mon, 05 Apr 2010 11:28:32 -0800

Do you turn you head to check your blind spot before making a lane change? Here in congested San Francisco, turning your head even briefly away can increase your risk of being in a car accident. There's a way to reset your mirrors that makes head turning unnecessary. It's the Blindspot and Glare Elimination (BGE) mirror setting. The BGE was developed in 1996 by a member of the Society of Automotive Engineers (SAE) named George Platzer. The BGE setting changes the view of your side mirrors to show your blind spots, rather than the view behind, which is already covered by your rear view mirror. An added benefit of the BGE setting is the elimination of glare from passing cars.

For drivers who are accustomed to the typical side mirror settings, switching to the BGE setting is a bit difficult initially, due to disorientation when looking at the side view mirror when the side of their vehicle is no longer visible, but after switching, most acclimate to the new settings and find it a better way to drive.

There are several advantages to the BGE setting:

You no longer have to turn your head to look into the blind zones.

Only a brief glance at the mirrors is needed to change lanes.

By glancing at the mirror, you keep the road ahead in your peripheral vision. Turning your head completely eliminates the road ahead from your field of vision.

Glare from the side mirrors is almost entirely eliminated. You should no longer have a trailing car's headlights shine directly into your eyes.

The BGE setting involves tipping your mirrors out about 15 degrees farther than the typical setting. Here's how to do it:

Place your head against the driver's side window and adjust the driver's side mirror so you can barely see the driver's side of your car. (This is the view you would have on typical settings without moving your head.)

Move your head as close to the center of the car as possible and adjust the passenger's side mirror so you can barely see the passenger's side of your car.

To check your BGE setting, watch as a car passes you in an adjacent lane. It should enter your outside mirror before it leaves the rearview (inside) mirror. Also, the car should appear in your peripheral vision before it leaves the outside mirror.

Driving and Talking in the San Francisco Bay Area

Fri, 02 Apr 2010 16:28:58 -0800

Like many of us, I am still finding my way to a safe personal driving and talking policy here in San Francisco. Of course, California law now prohibits using a handset while driving, but we are one of just seven states with this restriction. Is it safe to talk and drive, even using a speakerphone or headset? The New York Times online has an entire section devoted to articles on the risks of driving and talking.

A U.S. News & World Report piece points to research that indicates that talking while driving can impair the brain's ability to process what a driver is seeing by 50%. Many reports are linking cellphone use with San Francisco car accidents . This piece also cites an interesting statistic: at any given time, about 11% of drivers are on the phone. A Wired Magazine online piece featured tests that showed only 1 in 40 drivers retained their full ability to reach quickly to changing road conditions while talking and driving. But those "supertaskers" were able to perform competently on driving tests while talking, leading the magazine to emphasize that for some drivers, talking and driving pose no added risk of harm.

Combining these two statistics-the 11% of drivers being on the phone, and the 1-in-40 who can so do without impaired driving ability-highlights the danger of combining the two. Of courses, many of us would like to think that we are the 1 in 40. It would be interesting to see how many people in a survey felt that they were among the "supertaskers" that Wired cites. Based on my experiences, I don't think that I'm one of them. I have noticed that my driving attention suffers when I am on the phone. For now, I have decided to avoid driving and talking while here in San Francisco, or any urban area, but I still do it on longer freeway drives in uncongested traffic. Being able to utilize that otherwise-wasted time is hard to give up. But I know that multiple studies show that it is taking something away from my reaction abilities.

For now, I still talk while driving on a limited basis, but I am open to limiting it even more, or giving it up entirely if I become convinced that it is always unsafe.

San Francisco Bay Area Accidents: Sudden Acceleraton Can Always Happen

Thu, 18 Mar 2010 15:26:46 -0800

Having a car take off as if it has a mind of its own is pretty unnerving. It happened to me when I was in college, driving a friend's old Buick, and the accelerator stuck. I felt panicked at first, then shifted into neutral, which solved the problem. Fortunately, I didn't hit anything between the onset of the problem and deciding what to do. Now everyone's thinking about sudden acceleration, and, I would imagine, what they would do if it happened. Here's the Consumer Reports guide to how to deal with sudden acceleration.

Now we are all hearing about this problem on a daily basis because of the massive problems with Toyotas. First we heard that it was caused by sticking floormats, and Toyota had a big floormat recall. Then we heard that it was faulty accelerator pedals, and Toyota announced another recall. Now we are seeing reports that cars that have had "the fix" are still having the problem, and it's been suggested that the problem lies elsewhere--perhaps with electronics.

This isn't the first time that this has happened, of course. If you've been driving a while, you may recall the major problem Audi had with the model 5000 back in the 1990's. That acceleration problem was much less dangerous, because it usually occurred from a stop. It resulted in lockouts being installed on virtually all automatic transmission cars thereafter, requiring drivers to press the brake pedal before a solenoid releases the shift lever out of park. Already there is talk of the Toyota problems causing new regulations requiring a safety override that would kick in when the brakes are pressed.

As cars become laden with more electronic substitutes for direct mechanical operation of basic functions, the possibilities for these problems increase. Already, there are "drive by wire" and "brake by wire" systems, where the driver's actions have no physical connection to the wheels or brakes, only to electronic sensors that signal motors to do the work.

Hopefully Toyota owners will be reassured by a definitive solution to this problem. But going forward, drivers of all cars should be prepared with an action plan in the event of sudden acceleration.

Professional Football and Brain Injury

Fri, 13 Nov 2009 11:26:27 -0800

There have been many reports in the news lately about links between playing professional football and early onset of dementia. Now, according to a story in the San Francisco Chronicle, Congress is investigating. All this recent attention started with a New Yorker Magazine piece about the high number of pro football players with dementia, often misdiagnosed as Altzheimer's.

None of these reports will come as much of a surprise to personal injury lawyers who have handled traumatic brain injury (TBI) cases. We know that just one concussion can cause a TBI with permanent effects. While most people who have continuing symptoms after a concussion make a complete recovery, a minority of people do not, and are left with permanent impairments. These impairments often include forgetfulness, difficulty finding the right words, and irritability. That this type of permanent injury can result from even a minor concussion makes it obvious that pro football players, who will usually have many concussions over a career, are likely to have a high rate of TBIs.

Appropriate testing can be hard to come by for NFL players too. The New Yorker story points out that often players are seen by a team physician, who works for management, and is under pressure to get the player back on the field.

Many of these injuries are subtle, and don't have physical manifestations that show up on diagnostic image tests, such as CAT scans or MRIs. The damage to the brain is so physically subtle that it often only shows up on autopsy. The New Yorker Magazine piece details how numerous brain autopsies involving football players showed what had happened to their brains.

These milder TBIs have their own name, MTBI--for Mild Traumatic Brain Injury. Many people who are injured in an accident don't even realize that they have an MTBI. Friends, family member, and co-workers often fill in the gaps, and can be important sources of information about the problems that the person is having. Sometimes the person suffering from the injury thinks he or she is functioning well, only to hear from others that they are much different after an accident.

Since these MTBI injuries do not show up on standard image tests, the diagnosis is most often made by testing performed by a type of psychologist called a neuropsychologist. In the San Francisco Bay area, we have many talented neuropsychologists, but getting health insurers to pay for the extensive testing needed can be difficult.