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.


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).


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.

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.  

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).


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.


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.