San Fernando Valley Los Angeles Attorneys
Navigation Two
Phone Number

Entries in insurance matters (9)

Wednesday
Jan252017

“Way Mo” Autonomous Cars Coming Fast

Personal InjuryPersonal Injury Attorney

 

 

by Andrew L. Shapiro

(818) 907-3230

 

It’s a race to beat all races:  several car makers, including Ford, General Motors, Volvo, BMW and Tesla are promising fully autonomous vehicles within the next five years. Not far behind the pack, Google recently renamed its own autonomous contender the “Waymo”, according to Bloomberg Tech. And Nissan is big in Japan with plans to have commercial, driverless vehicles up and running on its home turf by 2020.

Recently, the U.S. Department of Transportation (DOT) announced that 10 sites across the nation were chosen for the testing of artificially intelligent (AI) vehicles. Two of these are right here in California – at the Contra Costa Transportation Authority in Walnut Creek, and the San Diego Association of Governments.

So what does all of this mean for driver safety?

It’s still too early to tell. For now, the general public can rest assured that the DOT’s designated test sites are meant to be just that – test sites. Automakers running cars at these locations are expected to share test results and tech knowledge per a Federal Automated Vehicles Policy released in September.

Transportation Secretary Anthony Foxx explained:

This group will openly share best practices for the safe conduct of testing and operations as they are developed, enabling the participants and the general public to learn at a faster rate and accelerating the pace of safe deployment. 

Autonomous Vehicle Safety

Last May a driver was killed in Florida when his autonomously driven Tesla crashed into a truck. The National Highway Traffic Safety Administration though, recently concluded that Tesla was not at fault. NHTSA said driver-assist software for the vehicle performed “as designed”, and that drivers should still pay attention when behind the wheels of AI vehicles.

The feds investigated other AI crashes and found that many of these were because of “driver behavior factors”.

Overall, even the insurance industry is gearing up for safer highways and streets. Once autonomous vehicles really get rolling, the industry expects a decline in driver insurance premiums, though it also expects an increase in product liability revenue. The reason?

Drivers involved in crashes will sue each other less and less, and will instead turn to car makers to satisfy injury claims.

 

Andrew L. Shapiro is the Chair of our Personal Injury Practice Group.

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Wednesday
Apr082015

Commercial Drones: When Tech Flies Faster Than the Speed of Government

Litigation Los AngelesBusiness & Environmental Litigation Attorney 

Stephen T. Holzer
818.907.3299

 

Unmanned Aircraft Systems (UAS), or drones as they are more commonly known, are under intense scrutiny by the Federal Aviation Administration (FAA). In fact, the FAA itself is under scrutiny, by big and small businesses alike.

Drones for BusinessIn February, the agency published a Notice of Proposed Rulemaking (NPRM) to amend regulations governing drone operators and their craft.

Under the proposed rules for UAS weighing less than 55 pounds, operators must maintain visual contact with the craft at all times, fly drones between sunrise and sunset only, and not over the heads of people who are not directly involved in the drone's operation. Drones can't exceed 100 mph or fly higher than 500 feet, and operators will need to perform a pre-flight check of their craft to ensure safety.

In late March the FAA announced plans to grant Certificates of Waiver or Authorization (COA) which usually applies to research endeavors. Business can also apply for Section 333 Petitions of the FAA Modernization and Reform Act of 2012 – for certain commercial drone operators flying UAS under 200 feet and specified distances away from airports.

Section 333 petitions allow the Secretary of Transportation to grant on a case by case basis, an operator authorization to fly a drone without the normally required mandates of a registered aircraft, licensed pilot and operational approval.

According to Fortune Magazine, the FAA is not exactly free-flying in this endeavor. First, the agency is undermanned with a crew of 10. Additionally, the FAA feels it must scrutinize each highly complicated exemption individually – they've received over 600 petitions, and approved about 10 percent so far.

The FAA in response to criticism over its original NPRM revealed in February cited the complexity of the issue, and that there are no technology standards for drones established yet.

This week, American International Group (AIG) announced the FAA granted approval for the insurer to use drones when surveying disaster areas. AIG says they will use UAS to better assess risk and help clients rebuild after catastrophic events.

It sounds like the FAA may be more ready to launch forward in allowing commercial drone use, but this still may not be good enough for Amazon.

In a recent congressional hearing, the online retailer's Vice President for Global Public Policy complained the U.S. is falling behind on the flight path:

Nowhere outside of the United States have we been required to wait more than one or two months to begin testing…What the FAA needs is impetus, lest the United States fall further behind.

Additionally, Amazon claims that the drones the FAA has authorized for test flights are already obsolete. Amazon developed newer and better models, which they are now testing overseas.

In Europe, the outlook for commercial drone use has broader horizons. DHL has begun dropping off supplies to an island 12 kilometers from Germany's coast – the first service exceeding visual line of sight delivery, according to The Economist. Some law enforcement agencies in the UK plan to use drones to fight crime, according to engadget.com.

California Drone Laws Address Privacy Concerns

Closer to home, most of the fight for drone flights in commercial use remains at the federal level. California seems to be flying a different legal path.

Drone Law

The drone industry could potentially pump billions into the California economy, according to trade groups. But many in the state are more worried about privacy and safety, e.g., the drone that crashed on White House grounds in January.

Last September, Governor Jerry Brown approved an amendment to Civil Code §1708.8, which should clip the wings of the paparazzi and anyone else intending to use UAS to invade the privacy of an individual in personal or family settings: "…through the use of any device, regardless of whether there is a physical trespass...."

Governor Brown vetoed Assembly Bill 1327 for being too restrictive for police. The proposed bill prohibited the use of UAS by public agencies, except by law enforcement under very specific circumstances (usually requiring a warrant), or to aid first responders in traffic accidents or in natural and environmental disasters.

So far, California has two other assembly bills up for debate this year also focused on law enforcement use and privacy: AB 37 and Ab 56. Assemblywoman Marie Waldron, R-Escondido, introduced AB 14 addressing a need for a task force to study the drone industry and regulations.

Except where privacy and business issues overlap as in the paparazzi amendment above, California isn't quite yet on board with tackling the business aspects of drone use.

There's already a Congressional Unmanned Systems Caucus, initially established in 2012 to study privacy issues. Congressmen Joe Heck (NV) and Daniel Lipinski (IL) have recently announced a "re-launch" to "educate members on commercial applications of unmanned systems, industry trends, and regulatory issues for air, land, sea systems".

Hopefully, the Congressional interest and state legislation such as California's AB 14 can move the regulatory process forward.

Stephen T. Holzer is an Environmental and Business Litigation Attorney. Contact him via email: sholzer@lewitthackman.com, or by phone: 818.907.3299.

 

 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Thursday
Apr022015

Unleashed: Dangerous Dogs Directive in Los Angeles

Injury Attorney Los AngelesDog Bite Injury Attorney

by David B. Bobrosky

(818) 907-3254

 

 

Recently, a Los Angeles County woman was charged with three felony counts for failing to control her vicious dog. Her Akita attacked three separate people in less than two years – the last incident occurring in November. One of those victims was an eight year old child.

Dog Attack LawyerEarlier this month, the Los Angeles Department of Animal Services issued a directive to immediately impound dogs that seriously injure people or other dogs and cats. According to NBC, the owner of these impounded dogs must then attend a Dangerous Animal Hearing at which the city will decide if the dog needs to be removed or euthanized.

In the past, criminal charges brought against the owners of attacking dogs have been rare, but we may see that happening more often, especially since the death of Diane Whipple in 2001. A judge sentenced one of the dog owners to 15 years to life in prison, for second degree murder.

A man in Lancaster, California was also convicted of second degree murder and could serve 24 years to life because of four pit bulls that terrorized the neighborhood – engaging in at least seven other attacks in the 18 months before mauling a woman walking through the neighborhood in 2013.

Last year a Michigan couple faced murder charges because their two dogs attacked and killed a passing jogger, after having attacked others in the neighborhood. In this instance, the dog owners previously failed to show for a court hearing when the dogs bit an elderly man. Additionally, animal control may also have been at fault as they merely ordered a 10 day quarantine of the animals after the dogs attacked a passer-by in 2012.

Dog Attacks & Injury Claims

According to the Insurance Information Institute, dog bites accounted for more than one-third of all money paid out for homeowners' liabilityclaims in 2013. From 2003 to 2013, the average cost per dog bite claim has risen over 45 percent.

Dog Bite Fatality StatisticsNational Canine Research Council: Co-occurring factors in dog bite-related fatalities over 10 year period.In California alone the value of dog bite injury claims totaled over $64 million – the highest state amounts paid out across the nation – but not the highest average cost per claim, falling well behind New York. The average insurer's cost per claim is just over $43,100 in New York, $33,700 in California, and $31,600 in Wisconsin. These numbers cry out for the need for responsible pet ownership.

Personal injury awards for dog attacks vary case by case – it all depends on how badly an individual was injured by the dog, whether extensive medical treatment or plastic surgery is needed, and how the attack changed the victim's lifestyle in the long-run.

Additionally, a jury may award exemplary damages from the dog owner. In such a  case, a jury wishes to punish the owner for willful conduct or grossly negligent  behavior, i.e. letting a historically dangerous dog roam the neighborhood. Theoretically, exemplary damages could be awarded against the Los Angeles woman with the dangerous Akita mentioned above.

A Los Angeles County ordinance already sets procedures for dealing with dangerous dogs. Owners of vicious canines may be fined, have restrictions imposed, or be forced to give up the dog to someone else. Ultimately though, the County could order to have the dog euthanized.  

Hopefully the new directive from the Los Angeles Department of Animal Services will further help to enforce the ordnance – allowing for the immediate impounding and subsequent evaluation of these dangerous animals.

David B. Bobrosky is an experienced dog bite attorney in our Personal Injury Practice Group. Contact him by phone: (818) 907-3254 or by email: dbobrosky@lewitthackman.com

 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Tuesday
Nov252014

Personal Injury: The "Independent" (Defense) Medical Examination Required By Law

Injury Attorney Los AngelesPersonal Injury Attorney

by David B. Bobrosky

(818) 907-3254

 

This is part of a series of blogs that discusses what a client can expect during various stages of a personal injury case. This post addresses what happens when the defense has the Plaintiff examined by a doctor in what is incorrectly referred to as an “Independent Medical Examination.”

 

Any personal injury Defendant has a right to have a Plaintiff examined by a doctor of the Defendant’s choice. The law places two main conditions on the examination:  

  1. The examination may not include any diagnostic test or procedure that is painful, protracted, or intrusive; and

  2. The examination must be conducted within 75 miles of the Plaintiff’s residence.

Personal Injury Medical Exams

Whenever a Plaintiff claims continuing injuries, the Defendant will have the Plaintiff examined by the Defendant's doctor of choice.

The doctor will usually match the same type of doctor that the Plaintiff has been seeing to treat his or her injuries – if the Plaintiff has been seeing a neurosurgeon for example, the Defendant will usually require the Plaintiff to see their own neurosurgeon.

The Defendant may also ask the Court to have the Plaintiff examined by multiple doctors if the Plaintiff has multiple injuries that are being treated in different areas of medicine. Most of the time, the Courts will allow examinations by multiple physicians – especially if the Plaintiff will be calling multiple doctors at trial to testify.

 

A Defense (Not Independent) Medical Examination

This examination has often been referred to as an Independent Medical Examination (IME). However, there is nothing “independent” about it. The physician is not neutral.  S/He is hired and paid for by the defense – usually the insurance company.

The doctor examines the Plaintiff, writes a report and then testifies on behalf of the defense. Usually this is a doctor who has been hired by the insurance company many times, and is an advocate for the insurer. Many of them earn hundreds of thousand dollars to over a million dollars per year working for the defense and testifying against Plaintiffs.

This is usually much more money, for much less time, than the doctor makes in his or her main practice. That is why it is more accurately referred to as a “Defense Medical Examination.”

 

What To Do When the Defense Requires an IME

Insurance Medical ExamIf a Plaintiff's attorney receives a notice to have the Plaintiff examined, the first thing that the attorney will do is ensure the physician is of the same discipline of the doctor that has treated the Plaintiff. If the attorney believes that the examination is noticed properly and will proceed by law, the attorney should respond with a written notice with conditions of the examination.

If the examination is not properly noticed (too many examinations, not a correct medical discipline, too far from the Plaintiff's residence, etc.), an injury attorney can send a written objection. Separate conditions apply to mental examinations, which will be addressed in a future article.

 

Attending the Examination

The Plaintiff should never attend the examination alone.

Some attorneys attend the examination with the Plaintiff. Other attorneys send an “observer” with the Plaintiff – sometimes a nurse or someone else with medical training to record the type of tests performed by the insurance doctor. There are pros and cons to each.

The examination may be audio recorded by either the Plaintiff or the doctor. Whether it’s the attorney or an “observer”, it’s imperative that someone attends with the Plaintiff.

 

At the Defense Examination

The Plaintiff should never fill out any paperwork at the doctor’s office.

There is no requirement to do so, and will only be used against the Plaintiff. Despite the fact that it’s not required, almost every office will attempt to have the Plaintiff complete paperwork.

Either the doctor or a “historian” will take an oral history of the accident and injury. Some attorneys do not allow their clients to give any history whatsoever. Others allow a brief history regarding the specific injury or treatment—just enough to allow the doctor to perform an examination.

During the history and/or examination it is important to remember that no matter how charming the doctor may seem, s/he is an advocate for the defense – with financial incentive to downplay the seriousness of the Plaintiff's injury.

It should go without saying that if the Plaintiff answers questions, the Plaintiff must do so honestly.

The Plaintiff must always put forth 100 percent effort during the examination. S/he may be asked to perform certain physical tests, i.e. bending, squeezing, rotating joints, etc.  Besides it being dishonest not to participate to the best of injury victim's ability, the insurance doctors are trained to spot a lack of effort or attempts to exaggerate or fake pain.

 

Report and Record Review

The Plaintiff's attorney will demand a copy of any report generated by the Defense's doctor. This usually includes the main report of the examination, which should set forth the tests conducted during the examination and any opinions or conclusions reached by the doctor.

Many times, the insurance company will send medical records to the examining doctor to review. The doctor will then also produce an additional report called a Record Review.

In this Record Review, the doctor summarizes the records and comments regarding the treatment of the Plaintiff. It is extremely important to make sure the attorney for the Plaintiff obtains both the Report and the Record Review, as the doctor will often bury most of his/her critiques and important opinions in the Record Review.

Being adequately prepared for the Defense Medical Examination will lead to the Plaintiff’s attorney properly dealing with the Defense doctor at deposition and/or trial. Cross-examining a Defense Doctor will be addressed in a separate blog.

 

David B. Bobrosky is an experienced Personal Injury Attorney. Contact him via phone: (818) 907-3254 or by email: dbobrosky@lewitthackman.com.

 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Monday
Oct202014

Doctors, Lawyers and the Controversial Prop 46

Litigation Los AngelesBusiness & Environmental Transactions & Litigation  

Stephen T. Holzer

818.907.3299

 

What's the most controversial measure on California's November ballot? The insurance regulation bill, Prop 45, may be a good contender – but more than likely the controversy over Proposition 46 will win the contest hands down. But can it win votes as well?

Before we can guess, let's look at all that Prop 46 strives to accomplish: 

  1. Raise California's cap on damages for medical malpractice (MedMal) suits to $1 million – currently the cap is $250 thousand.

  2. Requires doctors to undergo drug and alcohol testing. Positive test results will be reported to the California Medical Board (Board).

  3. Requires the Board to suspend doctors who test positive for drugs or alcohol pending an investigation. The Board will be required to discipline those doctors found to be working while under the influence.

  4. Health care practitioners will be required to report doctors they suspect of being on duty while impaired, or who otherwise perform duties negligently.

  5. Requires medical practitioners to consult a state prescription database before prescribing some controlled substances. 

­­Prop 46 Background

When Jerry Brown served as governor of California the first time, he signed the Medical Injury Compensation Reform Act (MICRA), in 1975. The act capped noneconomic pain and suffering damages for MedMal suits at $250 thousand. If we adjust the cap for inflation since 1975, the figure should roughly total $1.1 million this year.

Arguments For and Against Prop 46

Here are the groups opposing and supporting the measure, and some of their primary reasons for the stances they've taken.

The Prop 46 opposition gets full backing from numerous health professional organizations, including the: California Medical Association, California Dental Association and American Medical Association. Then add strong union backing from the International Brotherhood of Electrical Workers (IBEW) and Service Employees International Union (SEIU).

Finally, count the political heavies like the California Republican Party, the American Civil Liberties Union of California, the California NAACP – and you find some intimidating opposition to Prop 46.

The arguments against the ballot measure are as varied as the goals Prop 46 tries to achieve. Opponents say: 

  1. Bigger awards for malpractice suits means the doctors and insurance companies will defer those costs to the consumer – potentially hundreds of millions each year.

  2. A prescription database threatens consumer privacy. The government can't implement or maintain it, let alone protect it from hackers.

  3. You could lose your doctor – if the medical liability cap increases, your doctor may be forced to leave California to practice elsewhere, or reduce/eliminate services. 

Prop 46 supporters include: Consumer Watchdog, consumer advocate Erin Brokovich; the founder of Mothers Against Drunk Driving Candace Lightner; Senator Barbara Boxer, House Democratic Leader Nancy Pelosi, the State Insurance Commissioner Dave Jones, various democratic party leaders and patient safety advocates. Those behind the measure say: 

  1. Indexing the damages cap for inflation won't raise health care costs, as those awards account for a very small percentage of the costs of healthcare. Additionally, insurance companies earned a 6.5 percent return on net worth in the last decade, while MedMal insurers earned a 16.7 percent return.

  2. Medical negligence is the third leading cause of death after heart disease and cancer, and about 18 percent of doctors suffer from drug and/or alcohol abuse at some time in their careers.  

  3. A prescription drug database is already in place, the Controlled Substance Utilization Review and Evaluation System, or CURES was established in 1997, and went digital five years ago. Additionally, 48 other states across the nation already have a prescription drug monitoring program in use. 

A Field Poll initiated in June reported 58 percent of respondents supported Prop 46, but in August poll numbers dropped to 34 percent. Whether you agree or disagree with the intended goals or this ballot measure, the controversy will keep the campaign interesting. 

Stephen T. Holzer is an Environmental and Business Litigation Attorney. Contact him via email: sholzer@lewitthackman.com , or by phone: 818.907.3299

 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

LEWITT HACKMAN | 16633 Ventura Boulevard, Eleventh Floor, Encino, California 91436-1865 | 818.990.2120