Personal Injury Attorneys and Traumatic Brain Injuries

When a loved one is in an accident that results in a serious injury (or even death), it is not uncommon for a family to hire a personal injury attorney to represent their interests.  Medical bills, lost wages, the inability to pay for basic things in life because of a loss of income, pain, rehabilitation, loss of life or loss of the enjoyment of life – these are all things that no one is truly able to understand until they have to go through it.  If a serious injury or death is caused by the negligence of another person, that person needs to be held accountable for the harm they caused.

One of the most serious, but hard to see, injuries that people suffer in accidents is a traumatic brain injury. The CDC defines a traumatic brain injury (TBI) as a disruption in the normal function of the brain that can be caused by a bump, blow, or jolt to the head, or penetrating head injury. Mild traumatic brain injury may affect your brain cells temporarily. More-serious traumatic brain injury can result in bruising, torn tissues, bleeding and other physical damage to the brain. These injuries can result in long-term complications or death. Everyone is at risk for a TBI, especially children and older adults.

CAUSES OF A TRAUMATIC BRAIN INJURY 

According to the American Speech-Language-Hearing Association, this occurrence is referred to as a closed head injury. Closed head injuries can occur when the head hits the steering wheel or side window of the car during an accident. A hard impact can cause the brain tissue to bruise, bleed and swell. Open brain injuries can also occur when flying objects in the car penetrate the skull and damage the brain tissue.

  • In 2014, there were 56,800 TBI-related deaths in the US, including 2,529 deaths among children.

  • Intentional self-harm, unintentional falls, and car crashes were the most common mechanisms of injury contributing to a TBI-related death. These three principal mechanisms of injury accounted for 32.5%, 28.1%, 18.7%, of all TBI-related deaths.

  • Rates of TBI-related deaths per 100,000 population were highest among older adults aged ≥75 years (78.5), those aged 65-74 years (24.7), and individuals 55-64 years (19.1).

SYMPTOMS OF A TRAUMATIC BRAIN INJURY

Brain trauma can result in a constellation of symptoms ranging from mild to profound.  These include, but are not limited to CTE, headaches, loss of memory, fatigue, confusion, problems with impulse control, dementia, intermittent explosive disorder and other mental disorders.  It is now believed that some types of problems associated with TBI can actually get worse over time.

Some of these symptoms may appear right away. Others may not be noticed for days or months after the injury, or until the person resumes their everyday life. Sometimes, people do not recognize or admit that they are having problems. Others may not understand their problems and how the symptoms they are experiencing impact their daily activities.

People that sustain severe head trauma that includes bleeding, open skull injuries, loss of consciousness and comatose activities are always immediately treated by emergency rooms in hospital or urgent care centers. Many diagnostic tools are available to doctors and neurologists today and are extremely helpful in limiting the permanency of brain injuries if immediately used. Cat Scan and Brain MRI are a powerful diagnostic tool to determine whether there is bleeding on the brain or other acute factors inside the head that may impact the treatment and care following a severe and acute traumatic brain injury. If bleeding does exist in the brain early and immediate detection can allow for an evacuation procedure that will drain the blood and prevent further injury to the head and brain.

For some time now, there have been developments that have raised public awareness of the dangers and prevalence of brain injuries.  In January 2016, a federal district judge in Chicago gave preliminary approval to a reworked head injury settlement between student athletes and the National Collegiate Athletic Association (NCAA).  Under the terms of this proposed settlement a seventy-million-dollar fund would be established to test for brain trauma.  In addition, the NCAA is required to strengthen return-to-play rules after a brain injury.  U.S. District Judge John Lee also suggested removing an across-the-board prohibition from future class action lawsuits relating to concussions.  This announcement regarding the NCAA settlement follows an earlier settlement of the National Football League’s (NFL) concussion related lawsuits. The NFL settlement involved the payment of $765 million in potential compensation.

In evaluating the injuries to victims of traumatic brain injury it is important for a personal injury attorney to be able to accurately assess what a client’s present and future problems are or will be, as well as assist the victim and their families understand their legal rights and recover compensation. As medical science learns more about these sometimes-mysterious problems, an attorney will be able to get the client adequate and reasonable compensation for their injuries.

Scene From a Typical Car Accident

You are driving down a busy boulevard maintaining proper speed limit and being very cautious of your surroundings. You are coming to a major intersection, heavily transited, yet you have a solid green light and continue forward. Just as you cross the intersection, you notice with the corner of your eye how opposing traffic trying to make a left turn rams your left bumper and spins your car out of control. Fortunately, the spinning stops. You decide to take a moment to exhale the deepest breath you have taken in a while, and answer that mind-bugging question that has been dominating your thoughts for the past minute: “what in the world just happened?” In a matter of seconds, the realization strikes you just as hard as the hit you have just taken by another car.

You take a quick look back at the intersection, and notice a vehicle over the sidewalk—someone has already exited the auto and is looking intensely at the damages. You walk towards each other, and you have the opportunity to release the first verbal interaction with a simple question: “is everybody ok?” Prior to any other exchange, the status of all the affected passengers should be established, not just as common courtesy, but also to prioritize the next steps. If personal injuries are present, paramedics should be the first call to make in any type of accident. If injuries are present, contacting a knowledgeable and experienced attorney should be a priority.

Now, it is clear that the cause of the accident must be established with proper communication. Not always will this be a simple step, as an event of this nature will have emotionally altered all those involved, and so you make the decision to call the police since all passengers—yourself included—have now chosen to remain quiet as to avoid any type of admission of fault, or worse, a physical altercation due to disagreement.

As you wait for the authorities to arrive, you decide to pull out your smart phone and start taking all the necessary pictures of the scene. There is no limit as to how many pictures you should take. Simply said, pictures should be taken of every single corner of the cars involved, as well as the street, and any debris related to the crash. Suffice to say, you should even take pictures of injuries sustained, if any. This may also be the best time to search for a witness as to have a reasonable description of the event. Remember, your judgement will be clouded. All this will not only be necessary information to retain for the authorities, but also for your insurance company who will use this to establish some form of defense in your name.

Once the authorities arrive to the scene of the crash, you are asked to return to your auto and start discussing your recollection of the events. You calmly describe all the details to the officer, who is writing down every piece of information obtained in a report: from the lane that you were on, an estimate of your speed, to a full description of the moments right before the crash and how you saw the traffic light while crossing the intersection. Also, if a witness is found, this is the time to advise the officer so it can be officially added on the report. This is also a valuable piece of information that you must acquire after the officer has finalized it. Normally, you will be given a report number first, since the authorities cannot give you a copy of said report until days later.

After the officer has finished obtaining all the required information from your part, they will proceed to the other party involved in the crash. The same questions you answered will be asked as to obtain a clearer picture of how the event came to happen. At this point, you must obtain the insurance information from this party as well, since your insurance will benefit deeply of this.

Once this process is completed, the officer will most likely already have a full picture of what happened. At this point, you make the decision to hire an attorney who will make sure you can collect all that should be compensated to you after an event of this magnitude. If injuries were sustained, you should now search for an excellent and competent personal injury attorney.

A personal injury attorney is a lawyer who provides legal services to those who claim to have been injured, physically or psychologically, as a result of the negligence of another person, company, government agency or any entity. From auto accidents, injuries sustained from falling on a sidewalk or a business, dog bites or defective products, you should ask yourself the following question:

What makes a good personal injury lawyer?

Ensure that each lawyer you consider is a specialist in personal injury.

  • Knowledge of the Law. The law is a complex, ever-changing animal.

  • Knowledge of the Medical Industry

  • Experience

  • Honesty

  • Commitment to Your Cause

  • Respect in the Field

  • Trial and Negotiation Skills

Can a Non-Party’s Bankruptcy Put the Brakes On Your Personal Injury Lawsuit?

Stop me if you’ve heard this one before: A personal injury client is injured in a car accident. The at-fault driver was in the course and scope of employment in a corporate car (yay, deep pockets!). Settlement negotiations have gone nowhere and you decide to file suit against the driver and their employer. In the meantime, the employer’s entire business model has been destroyed by a recent technology that makes the company practically obsolete. So the corporation files for bankruptcy. What happens to your case?

I had a nearly identical issue come up in one of my personal injury cases. My client was injured after being rear-ended by an employee of a large corporation. The employee was driving a company vehicle at the time. Shortly before we filed suit, the corporation filed for a Chapter 11 business bankruptcy (mostly because it failed to adapt to the revolutionary business model of the insurgent new - at the time - company, Netflix.). I won’t name names but let’s just call this corporation “Cropduster.”

So Cropduster filed for bankruptcy and at that point, I knew that if I sued Cropduster as well as the driver our case would be put on indefinite hold (possibly for years) while Cropduster’s reorganization dragged along in the system.  I also knew after all that time my client’s claim against Cropduster would most likely be discharged in the bankruptcy anyway.

Armed with this knowledge, we made a strategic decision and filed suit only against the driver.  Our adversaries, adeptly understanding the ramifications of our choice, tried to halt our lawsuit by claiming that the defendant was protected by the automatic stay in Cropduster’s bankruptcy case.  Our contention was that the defendant, as an agent of Cropduster, was separately liable for her own torts and therefore was independently liable for the car accident.

After much back-and-forth, a motion was filed by the defendant to stay our case while Cropduster’s bankruptcy played out.  We knew that if we lost this motion, the case was ostensibly finished.  Luckily, the law in this area was fairly developed and there was a lot of good precedent for us.

In the Ninth Circuit, two cases specifically discuss these issues in some detail:  In re Chugach Forest Products, Inc. and Matter of Lockard.  But I had to convince the court that these cases applied to our situation even though, factually, they were not 100% on point.  Fortunately, the court in Chugach and Lockard outlined the law substantially enough, allowing us to assert our position with confidence.

The law spelled out in the cases is more or less straightforward:  The automatic stay in bankruptcy protects only the debtor and not third-parties who are independently liable to plaintiff.  The courts have created a very narrow exception to this rule in “unusual circumstances” where there is a very close connection in the financial interests of the debtor and the third-party, where it would cause irreparable harm to the bankruptcy debtor to allow the third-party to be sued.  The third-party’s mere right to indemnification from the debtor, however, is not an unusual circumstance that warrants applying the automatic stay.

As a result, I saw this as a simple issue:  Defendant, as Cropduster’s agent, was independently liable for the rear-end collision and my client’s injuries.  As a result, we were free to bring a personal injury action against only the agent and not Cropduster.  Because Cropduster was not a party to this lawsuit, its bankruptcy should not have any effect on our litigation unless Cropduster could show some irreparable harm to its reorganization efforts as a result.  But Cropduster couldn’t do this because a mere employer-employee connection didn’t put the parties in an interlaced financial relationship where transactions affecting one automatically affected the other.  Furthermore, the employee’s right to indemnification simply wasn’t enough of an “unusual circumstance” under the law to justify putting a stop to our lawsuit.

In the end, the court agreed with our reasoning and declined to suspend our lawsuit because of Cropduster’s bankruptcy.  After being allowed to continue the case was ultimately settled resulting in a very happy and grateful client. The lesson, as always, is if you’re hurt in a car accident (or know someone who is) hire (or refer them to) a personal injury attorney that’s knowledgeable in all the different nuances of law because that can be the difference between recovering money for your injuries or walking away with nothing.

How a Personal Injury Attorney Helps You Pay Your Medical Bills After an Accident

After an accident, the victims are in need of medical attention. Medical aid though, like everything else in today’s world, costs money. Fortunately for victims, the costs of medical bills are recoverable when making a personal injury claim. Converting medical bills into damage awards is a tricky enterprise though, because of the wide range of rules involved in calculating such damage awards. A good personal injury lawyer will know how to navigate these rules to get the best possible recovery for their client.

One such rule is the Collateral Source Rule (CSR). The CSR states that victims can have third parties pay for medical bills without having the amount paid deducted from their damage awards. “Third parties” primarily refers to insurance companies, although the term can include anyone who pays for the bills but is not directly involved in the accident. The CSR applies to both the giving of the awards as well as presentation of evidence to determine what the award should be.

The CSR has a limitation though. In Howell v. Hamilton Meats, the California Supreme Court ruled that the CSR only applies to contracted prices of medical aid, not the actual prices. Suppose, for instance, that the reasonable price for a surgery is $250,000. The victim’s insurance company negotiates the price down to $50,000.  Under the CSR, the victim is only entitled to $50,000 because $50,000 is the victim’s medical bill.  The actual market value of the surgery, $250,000, is not recoverable by the victim because neither the victim nor the victim’s insurance company paid the $250,000. Essentially, victims cannot recover more than what they paid or what third parties paid on their behalf for their medical bills.

An exception to this can be found in the recent case Pebley v. Santa Clara Organics. There, an injured person who had medical insurance decided to treat outside his plan because of the seriousness of the surgery involved. The court ruled that an insured plaintiff who treats outside of their insurance plan on a lien is to be considered an uninsured plaintiff for the purposes of determining reasonable and customary value and that evidence of insurance and/or insurance rates are completely irrelevant. This makes sense because the person who treats outside his plan is responsible for his full medical bills since insurance will not be paying for it. As a result the injured person may recover the full cost of the surgery,regardless of what their insurance company ‘would have’ paid under the plan.

The court went on to discuss the reasons why a person would choose to treat outside their plan:

“There are many reasons why an injured plaintiff may elect to treat outside his or her insurance plan. As [plaintiff] points out, plaintiffs generally make their health insurance choices before they are injured. These choices may be based on the plaintiffs’ willingness to bear the risk posed by a health maintenance organization (HMO) rationing system because the plaintiff is healthy and requires little care. This decision may appear much different after a serious accident, when the plaintiff suddenly needs complex, extensive care that an HMO is not structured to provide… The plaintiff also may wish to choose a physician or surgeon who specializes in treating the specific type of injury involved, but who does not accept the plaintiff’s insurance or any other type of insurance. In addition, health care providers that bill through insurance, rather than on a lien basis, may be less willing to participate in the litigation process.”

Another exception to the Howell rule is if the contracted price is a gift. In personal injury cases, “gifts” cannot be given “for commercial reasons and as a result of negotiations.” The CSR does not apply to discounts, a product of market bargaining. Gifts, on the other hand, come from a “donor’s desire to aid the injured,” and can thus be factored into a victim’s damage award. The gift exception exists because it is a policy which encourages charitable action, which the courts view as being in the public interest. (Howell v. Hamilton).

The Howell limitation to the CSR is a far reaching limitation. Howell applies to insurance provided by employers for on the job injuries, like in Sanchez v. Brooke, where the employee suffered burns and smoke inhalation when the building burned down. It also applies to victims covered by Medicare, like in Luttrell v. Island Pacific Supermarkets, where the elderly plaintiff suffered a hip injury after having an automated door hit him four times. Given Luttrell, there does not appear to be a distinction between private and government insurance, at least when calculating damage awards under the CSR.

Howell applies to presentation of evidence of past and future medical services. Calculating what a medical service is worth can be difficult, especially if the service is done in sessions rather than all at once. The patient may decline to finish the sessions or an unforeseen event may prevent the patient from finishing treatment.

In order to calculate treatment payment which has not been finished yet, courts can use evidence of previous medical services used by the victim to determine how much present treatment might be worth. Similarly, courts can call in medical experts to determine what a future medical service might be worth. A personal injury attorney who’s dealt with accident victims can provide the best advice about how to present such evidence.

Being injured in an accident is a traumatic event for most people. Recovering the money lost from such an accident can be very difficult though, especially after the California Supreme Court’s ruling on tort recovery. However, getting a free consultation from a personal injury lawyer after an accident is always a good idea because that’s your best bet for helping to pay your medical bills.

What Your Insurance Agent Doesn’t Tell You Can Cost You Dearly (Part II)

If you read the first part of this blog on UM/UIM insurance coverage you’re probably wondering what the heck it is and why it’s so darn important to have if you happen to drive in California. More likely you’ve typed the words into Google and already have a basic understanding. But if you enjoy the anticipation of waiting for me to get around to writing these entries, or simply have more questions, here we go:

UM/UIM is short for “uninsured/underinsured” motorist coverage. ‘Ok, what does that mean?’ you’re probably asking. Essentially, if you ever get into an accident that’s not your fault and the other driver has no insurance (or doesn’t have a big enough insurance policy to cover you for all your damages) then your insurance company steps in and pays you. What most people don’t realize after they get into an accident is that your insurance company doesn’t usually pay to have your car fixed or pay for your medical bills resulting from the collision (this does happen in the wonderful world of Subrogation but I see your eyes glazing over so I’ll keep it moving). It may seem that way because you call your company up, report the accident, then go get your car fixed and a check comes in the mail. It’s understandable since you got the money to fix your car so who cares where the check came from! And that’s a valid point. It all sort of gets lost in the shuffle. But if it’s a bad accident with serious damages and injuries, it really matters.

Let’s take an example inspired by one of my cases: Guy Gallant is driving down Santa Monica Blvd. on his way home from work and stops at a red light. Behind him, Gary Goofus* in his old beater is texting and not paying attention to the road. Gary, in keeping with who he is, bought the cheapest liability insurance limits allowed by law, $15,000/$30,000 (per person/per accident). This means that no matter how much damage Gary does with his car and no matter how badly he injures someone, his insurance company will only pay the injured person a maximum of $15,000 ($30,000 total if more than one person is hurt). ‘Well what about Gary’s personal assets?’ you may ask. ‘Can’t you garnish his wages to get more than the $15,000?’ Theoretically, sure. But that brings us back to that famous proverb from Part I of the blog…the thing about getting blood from a stone. I mean, we all have a Gary Goofus in our lives. And a few unfortunate souls are surrounded by them. You know, the one who always ‘forgets’ his wallet – but he’ll get you next time. The one that’s always crashing on someone’s couch because he’s always getting evicted for not paying his rent. The dude who ducks child support payments like he’s in the Matrix. Even if you do win your court case against him and get a large judgment, good luck collecting! That judgment won’t be worth the paper it’s written on.

So back to our story, even though I’m sure you can already guess what happened. Mr. Goofus, still texting and not slowing down for the stopped cars in front of him, slams his beater into the back of Guy’s car. Guy, not expecting any of this, gets tossed around his car like a rag doll with his neck snapping back and forth violently. Both cars are wrecked. Guy is in immediate pain. They call the police. An ambulance takes Guy to the hospital where they check for fractures but don’t do any more intensive testing. If nothing’s broken they just release him with a “whiplash” diagnosis and tell him to see his doctor if the pain doesn’t go away. A few weeks pass and the pain only gets worse. Guy goes to see his doctor who sends him to physical therapy. A couple months of that doesn’t improve his symptoms so he gets a referral to an orthopedist who sends Guy to have some MRI’s done. The scans reveal a herniated disc in his neck. He’ll likely need surgery. But that costs money. And even with that Guy is looking at a lifetime of disability and pain. Gary’s insurance company already offered its $15,000 limits and washed its hands of this case. Gary won’t be asked to contribute anything because that would be pointless. The $15,000 won’t even cover Guy’s surgery. What about his other medical care? What about all the work he’s missed? What about the worst part of all this – Guy’s inability to enjoy his life because of the constant pain he’s in – who’s going to pay for that?

And this is where UM/UIM coverage comes in. If Guy asked his insurance carrier to add that coverage when he was buying his policy it would cover all of his damages over and above the $15,000 paid by Gary’s insurance. For example, if Guy had UM/UIM coverage of $100,000/$200,000 (per person/per accident) he would be entitled to $85,000 from his insurance company to cover his medical expenses, missed work, and pain & suffering ($100,000 per person limits minus $15,000 paid by Gary’s insurance). If Guy really wanted to protect himself and his family he would buy the highest available UM/UIM policy limits, usually up to $1 million (anything above that normally requires buying an umbrella policy). It’s important to note that insurers usually require you to carry liability coverage that is higher or equal to your UM/UIM limits.

The greatest thing about UM/UIM is that adding this coverage to your insurance policy is relatively cheap – only a few dollars a month – compared to what you’re getting in return: Actual protection and the peace of mind in knowing that no matter what happens on the road you’ll be able to financially protect yourself and your family in most circumstances. 

 

* Names have clearly been satirized to protect the guilty.

What Your Insurance Agent Doesn’t Tell You Can Cost You Dearly (Part I)

   “You can't get blood out of a stone”

                                          -Italian Proverb       

One of the hardest parts of my job is having to say “no” to potential clients. These usually fall into four categories: The dog; the wobbler; the ‘out of my wheelhouse’; and the no insurance. The first category is the easiest to turn down. If you’ve ever had a Sovereign Citizen call to tell you that they want to sue the U.S. Government and Elvis Presley for a hundred million dollars because “they did a RICO” it’s quite a relief to know that you dodged that bullet up front rather than six months into litigation. The ‘out of my wheelhouse’ cases are tougher because it’s often someone who may have a legit case but I can’t represent them because it’s not my area of expertise and digesting a century’s worth of Maritime Law in a few short months is neither in my or the potential client’s best interests. Same with the wobblers. Those are also legit cases that I can’t take because of economics or just not having the bandwidth for them at that particular moment. The latter two types of cases I’ll try to refer the clients out to another attorney who specializes in that practice area or who has the ability and desire to take that specific case.

By far the most difficult cases are those where a person is seriously hurt in a car accident but there’s no insurance available to compensate them for their injuries. It often goes something like this: A potential client calls up saying they were in a car crash. They were sitting at a red light or in traffic, minding their own business, and all of a sudden they’re rammed into from behind by someone going way too fast. There’s a ton of damage to the cars and the client is in really bad pain so they have to get transported to the hospital. Later they get some imaging done because the pain doesn’t go away (MRI’s, X-rays, etc.) and the tests reveal a serious problem with their spine, often requiring surgery. Because this is a car accident that happened in California, at some point this client will tell me that the driver that hit them didn’t have any insurance. “Ok” I say, “if you have UM/UIM coverage this may not necessarily be a big deal.” Then the client will ask me, “What’s UM/UIM insurance?” Houston…we have a problem.

So what exactly is UM/UIM insurance? Well, if you’re driving around in California and get into an accident it could be the thing that saves you thousands, and maybe even hundreds of thousands of dollars. Most folks who purchase an auto insurance policy often only think about what happens if they hit someone, or who’s going to pay for their car. That’s called liability coverage. And if you really like your car you’ll get full coverage so that insurance will fix it regardless of who’s at fault in a collision. But what happens to you if you’re injured? Who will pay your medical bills, your time off from work, and – most importantly – for your pain and suffering, your loss of enjoyment of your life? (Ever try enjoying ANYTHING when your back feels like it’s literally on fire? Kind of takes the jam out of your doughnut as the English like to say.)

In Part II of this blog I’ll get into what UM/UIM insurance is, why you need it, and how insanely cheap it is relative to the benefits you receive from it if you’re ever in a car accident.  

Holding an Employer Liable For Injuries Caused By Employees

Picture this: A pizza delivery driver is running behind on schedule. In order to meet his goal, the delivery driver floors the gas pedal when a signal light is about to turn red. Although the driver gets lucky a few times, eventually his luck runs out. He rams a motorcycle as the next signal light changes.

Who should be held liable for the motorcyclist’s injuries in this situation? The pizza delivery driver is the individual most responsible for the motorcyclist’s injuries, but the delivery driver is unlikely to have the money necessary to compensate for the medical bills, let alone the full damage award. Many personal injury attorneys will focus on the employer in situations like this in order to ensure that their client receives the most compensation possible under the law.

Employers can be held accountable for the injuries their employees inflict on others through one of two different theories: direct liability or vicarious liability.

Direct Liability

Direct liability, as the name suggests, is when the employer is directly responsible for the injury. This sounds odd, given that the employer is only responsible through the employee’s involvement. However, an employer can be directly liable when the “employer violated a duty of care it owed to the injured party and this negligence was proximate cause of resulting injury” (De Villers v. County of San Diego). From this case, we can identify three elements of direct liability. First, the employer must owe a duty of care to the injured party. Second, the employer must be negligent. Finally, the employer’s negligence must be the cause of the victim’s injuries.

The first requirement in this theory of liability is the duty between the employer and the injured party. The employer must have a legal obligation to the injured party to exercise a certain amount of care before the employer can be held directly liable. If there is no duty, the case against the employer cannot move forward.

For instance, in De Villers v. County of San Diego, the victim’s family sued the county of San Diego for negligently hiring a drug addicted employee and for allowing that employee to steal enough toxins to poison her husband, the victim. Although the facts suggested the county had been negligent, the court found that the defendant did not owe any duty to the husband’s family. The court ruled that a plaintiff who sues a public employer needs to show that the duty of care owed came from a statute and not just common notions of duty.

Direct liability typically involves negligent hiring, or failure to take reasonable care when hiring someone. “Under California law, an employer may be held directly liable for the behavior of an unfit employee where the employer was negligent in the hiring, training, supervising, or retaining of that employee” (Keum v. Virgin America Inc). In the pizza delivery example, the company could be directly liable if the company knew or could have known that the delivery driver had been responsible for numerous traffic accidents in the past, but retained him anyway.

Vicarious Liability

Vicarious liability is the process of holding a person accountable for the actions of another person, such as the employer-employee relationship (California Civil Code 2338). Vicarious liability involves the employee acting on behalf of the employer. “It is well established that traditional vicarious liability rules ordinary make principals or employers vicariously liable for acts of their agents or employees in the scope of their authority or employment (Meyer v. Holley). Since the employer is expected to be in control of the employee, the employer is at fault when the employee injures another person while the employee is working for the employer.

There are two elements required to hold an employer responsible for the actions of an employee through vicarious liability. First, the employer must have direction or control over the employee’s work. This element eliminates independent contractors from vicarious liability. The employer must be in control of both the methods as well as the goals of business (Valles v. Albert Einstein Medical Center).

The second element, the scope of employment, is more often contested. This element asks whether the employee was “on the job” when the victim was injured. If the employee was working on behalf of the employer, the employer should be responsible for the victim’s injuries because the employer could predict whether the accident would have occurred. One way to determine whether an employee acted within the scope of employment is by deciding whether the employee was on a detour or a frolic. A detour is a minor departure from duties while a frolic is a major departure from duties.

If the pizza delivery driver hit the motorcyclist while driving to a gas station, the delivery driver would be on a detour because gas is necessary for the driver to fulfill complete his job. If the delivery driver had hit the motorcycle on the way to his girlfriend’s house, the delivery driver would be on a frolic.

An employee on a detour is more likely to be in the scope of employment than an employee on a frolic. An employee on a frolic is typically on the frolic for personal reasons unrelated to business. An employee on a detour, however, is still a representative of the employer. For example, in Vasey v. Surrey Free Inns, a manager assaulted a guest after the guest failed to leave the inn. Although the manager was on a detour from typical responsibilities, assaulting a guest was not part of the manager’s job, the manager was still representing the inn during the assault and thus the inn was vicariously liable.

Although the distinction between frolic and detour appears to be clear, technology has made the line fuzzy. In Miller v. American Greetings Corp, the manager of the company was involved in an auto accident on his way to meeting with a probate attorney. Prior to the accident, the manager was on his cell phone with subordinates. However, the phone call was made a few minutes before the crash and it was unclear from the record whether the manger was still on the phone when the accident occurred. Although the courts eventually ruled that the manger was on a frolic, the case could have gone either way.

Direct liability and vicarious liability are the two legal theories personal injury attorneys use to hold an employer liable for victim’s injuries. Direct liability is focused on employer negligence in hiring while vicarious liability is focused on the employee as a proxy for the employer. The two theories sometimes overlap, but they are two distinct theories.

The California Supreme Court made this clear in Diaz v. Caramo. The high Court ruled that if the employer admits to one theory, the employer cannot be liable for the other. Employers can only be accountable for one theory of liability because “employer’s liability cannot exceed that of the employee driver who allegedly caused the accident.” In other words, victims cannot collect more than the harm done to them by the employee.

If the employer is found liable though, the victim is more likely to be compensated for the harm done to them. Contact the Pivtorak Law Firm by calling (415) 484-3009, or click here to request a free, confidential consultation online.

A Comprehensive Guide to Medical Malpractice Lawsuits in California

Hospitals and doctors are often concerned about the size of medical malpractice awards. However, these awards have to be large in order to cover the damage a negligent doctor can inflict. A negligent doctor can inflict serious injuries on a patient that can dwarf most other types of injuries.

In 1975 though, California passed MICRA, a series of laws which make it difficult for patients to collect medical malpractice awards. However, MICRA creates procedural hoops which make the process more difficult and time consuming. These hoops include a narrower statute of limitations, a ninety day notice, the possibility of arbitration, and award caps.

This blog will discuss each hoop so that patients can collect malpractice payments which rightfully belong to them.

Statute of Limitations

As the name suggests, statutes of limitations place a timeframe on when a plaintiff can file a lawsuit. For example, victims of automobile accidents have a statute of limitation of two years. The victim has two years to sue or the victim loses the right to file a lawsuit regarding that accident.

Statutes of limitations are a common occurrence in personal injury, so medical malpractice claims have one as well. The statute of limitations for medical malpractice is three years after the injury, or one year after the plaintiff discovered or should have, through reasonable diligence, discovered the injury (CCP 340.5). The first half of this statute sounds reasonable – three years to file a claim is more than the two years given for automobile accidents.

However, the second half of the statute of limitations can prevent many plaintiffs from bringing their claims. The statute requires that medical malpractice victims bring their claim within one year after the victim discovers his or her injury or one year after the victim should have discovered his or her injury. This part of the statute of limitations is triggered when a victim suspects that his or her doctor was negligent (Knowles v. Superior Court).

This can very problematic for malpractice victims or their families. A patient may require many procedures performed by many doctors. Although victims or their families may suspect negligence happened sometime during the medical procedures, they need to bring lawsuits against specific parties. One year is often not enough time to identify which healthcare provider was careless, but courts still require that the claim be brought before that one year period is over. This will either result in the case being dismissed entirely (Jolly v. Eli Lilly) or in some defendants getting away without consequence (Knowles v. Superior Court).

1.     Statute of Limitations – Exceptions to The Three Year Rule

The statute of limitations, CCP 340.5, includes a few exceptions. If the defendant was fraudulent, tried to cover up the malpractice, or left a “foreign object” inside the plaintiff that has no medical effect, the three year limit does not trigger. Instead, CCP 340.5’s statute of limitations will be replaced by a more appropriate rule (Young v. Haines). For example, if a surgeon leaves a sponge inside the victim, the three year rule does not apply. Instead, the statute of limitations will be one year upon the victim’s reasonable discovery of the sponge inside her body.

Note that these exceptions only apply to the “three years after injury” rule. These exceptions do not apply to the one year rule regarding the victim’s suspicion of malpractice (Sanchez v. South Hoover Hospital).

2.     Statute of Limitations – Children

CCP 340.5 is far more lenient towards children. For children between the ages of six and eighteen, the statute of limitations is three years. The nonsense about “one year after discovery of injury or could have discovered injury” does not apply to children. For children under the age of six, the statute of limitations is extended until the child is eighteen.

Ninety Day Notice

The ninety day notice requirement is a procedural obstacle that MICRA specifically created to slow down medical malpractice suits. The ninety day notice requires the malpractice victim to send a written letter notifying the defendants that the victim intends to sue them for medical malpractice ninety days before the actual lawsuit is filed (CCP 364). More specifically, the notice must inform the defendants the legal basis of the claim, the type of injuries alleged, and the nature of the injuries alleged (CCP 364b). The notice can be sent through first class mail or fax (CCP 364).

The notice is designed to give healthcare providers an advantage by giving them extra time to prepare. However, the ninety day notice can also work to the malpractice victim’s advantage by extending the statute of limitations. If the notice is sent during the statute of limitations period, the statute will be extended.

For example, if the notice is served on the last day of the three year period, the statute of limitations will become three years and ninety days. Likewise, if the notice is served during the one year period upon the victim’s discovery of injury, the statute of limitations becomes one year and ninety days. The ninety day notice can extend the statute of limitations regardless of whether the applicable statute of limitations is one or three years (Russell v. Stanford University Hospital).

Arbitration

When plaintiffs sue in court, they often expect a jury trial. Alternative dispute resolutions, such as arbitration, often come as a surprise. Let’s go over some terms first though. “Alternative dispute resolutions” are methods of settling a case other than the use of a trial. They can include settlements or arbitration. Judges love alternative dispute resolutions because it means less work for them.

“Arbitration” is an alternative dispute resolution where the parties agree to the use of a third party to review the evidence and render a binding decision. The arbitrator can be one person or a panel of persons. Although arbitration might sound like trial by judge, arbitrators are not judges. The most significant difference is that arbitrators are selected by the parties whereas judges are not. This doesn’t sound too bad until one realizes that arbitrators are often chosen by the party with the deeper pockets.

Unfortunately for medical malpractice victims, MICRA allowed healthcare providers to arbitrate malpractice suits (CCP 1295). To be sure, both parties must agree to arbitration. “…Arbitration is binding only insofar as both parties consent in some fashion to the waiver of the right to a jury trial” (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC). However, most patients will, at most, skim the agreements healthcare providers give them. Many patients will not realize that their case is subject to arbitration until they try to sue the healthcare provider.

Courts have generally upheld arbitration agreements, despite the fact that the healthcare providers often control who the arbitrators are. According to CCP 1295, arbitration clauses must at least, in “10 point bold red type” font, read: “NOTICE: BY SIGNING THIS CONTRACT YOU ARE AGREEING TO HAVE ANY ISSUE OF MEDICAL MALPRACTICE DECIDED BY NEUTRAL ARBITRATION AND YOU ARE GIVING UP YOUR RIGHT TO A JURY OR COURT TRIAL. SEE ARTICLE 1 OF THIS CONTRACT.” Some attorneys have speculated that arbitration is actually preferable for plaintiffs.

Damage Awards

The most infamous part of MICRA is its modification of medical malpractice damage awards. Although the damage cap is MICRA’s most well known provision, MICRA also changes the lump-sum rule and the collateral source rule. These rules might sound like a foreign language to laypersons, but they can be just as important to patients as the damage cap.

1.     Damage Cap

Non-economic damage awards against healthcare providers for professional malpractice are capped at $250,000 (CCP 3333.2). “Non-economic damage” includes pain and suffering, inconvenience, physical impairment, disfigurement, and other nonpecuniary damage. On the other hand, “economic damages,” such as lost wages, are not controlled by the cap (Francies v. Kapla).

It is also important to point out that the cap only applies to “healthcare providers for professional malpractice.” Professional malpractice by a healthcare provider is “a negligent act or omission to act by a health care provider in the rendering of professional services…provided that the act is within the scope of services for which the provider is licensed…” (CCP 3333.2(c) (2)).

Any case outside that definition is not covered by MICRA’s damage cap. Intentional battery, which are medical procedures without the patient’s consent, are not covered (Perry v. Shaw). Reckless neglect, such as neglect which constitutes abuse under the Elder Abuse and Dependent Adults Civil Protection Act, are not covered (Delaney v. Baker). Any persons who are not healthcare providers are not covered. The term “healthcare providers” is quite large though, and it includes unlicensed yet registered social workers (Prince v. Sutter Health Central).

2.     Periodic Payments

Most damages awards for negligence are given in single lump sums, which is the entire award given all at once at the end of trial. The lump sum rule has drawn criticism because accident victims are often under or overcompensated (Deocampo v. Ahn). It is difficult for courts to predict how much an accident victim might need in the future.

The lump sum rule is optional in medical malpractice cases. Parties are allowed to use periodic payments instead if the damage award is over $50,000 in future damages (CCP 667.7). For instance, defendants can pay a damage award of $9,312,335 in equal monthly installments for 336 months, the patient’s life expectancy, instead of all at once (Deocampo v. Ahn). The $9,312,335 award could exceed the $250,000 cap because the award was for future medical damages. The patient in Deocampo suffered from heart trouble which would likely result in future operations.

The option for periodic payments can be triggered by either party. Why would the patient want to be paid in periodic payments? As mentioned above, lump sum payments sometimes under compensate the patient. If the patient is paid $80,000 today but the patient actually needs $100,000 in the future, the patient would still need $20,000. With periodic payments, under compensation is never a problem.

However, the main risk with periodic payments is that the defendant might not always be around to pay the patient. Fortunately, the statute addresses this issue. If the defendant is not adequately insured, the court can order the defendant “to post security adequate to assure full payment” (CCP 667.7). The security is collateral property that the patient can collect and sell in the event that the defendant is unable to pay the damage award.

Suppose a therapist is found liable for a $70,000 award and he or she is not insured. The therapist can offer a summer beach house as collateral in the event that he or she is unable to make full payments. The beach house would be security for the patient if the therapist went into bankruptcy.

Finally, periodic payments favor the patient even if the patient passes away. If the patient passes away before the defendant makes full payment, the remainder of the payment is given to people the patient owes a duty of support. People the patient owes a duty of support are typically children or spouses. Of course, this provision only counts the patient’s lost earnings, so defendants can go back to court to modify the award. However, defendants cannot extinguish the obligation to pay the patient’s dependents (CCP 667.7(c)). 

3.     Collateral Source Rule

In most negligence cases, parties are not allowed to introduce evidence regarding liability insurance that the other party carries. For example, if there is a case involving a bus colliding with a car, the company which owns the bus cannot offer evidence that the car owner had medical or automobile insurance. “The Supreme Court of California has long adhered to the doctrine that if an injured party receives some compensation for his injuries from a source wholly independent of the tortfeasor, such payment should not be deducted from the damages which the plaintiff would otherwise collect from the tortfeasor” (Helfend v. Southern Cal. Rapid Transit Dist). In other words, the injured party can be paid twice: one payment from his or her insurance and a second payment by the jury.

In medical malpractice, this is far less likely to happen. MICRA abolished the collateral source rule in claims against healthcare providers for professional negligence (CCP 3333.1). This means that in medical malpractice, defendants can show the jury that the victim has social security, worker’s compensation, health/sickness/disability/accident insurance, or any other type of contract or agreement which would reimburse the victim (CCP 3333.1). The jury then has the discretion to lower the amount awarded. By abolishing the collateral source rule, MICRA shifts the weight of the patient’s injury from the defendant to the patient.

Conclusion

To be prepared, patients should have copies of the following. First, you should collect your medical record(s). Second, you also need any agreements or contracts made with the defendant(s). Third, you should also get copies of any social security, worker’s compensation, or other accident insurance you carry. If you do not have these documents on hand though, it is still possible to find them after the case has been filed.  

While MICRA has made filing for medical malpractice more difficult, it does leave a few doors open so that malpractice victims can still get payment for their injuries. California voters might have supported negligent doctors at the polls, but patients are still the ones who need protection.