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Thursday
May032012
DateThursday, May 3, 2012 at 9:54AM

Tort Reform – Caps on Damages Cause More Pain than Good

 

Encino Personal Injury AttorneyEncino Personal Injury Attorney

May 3, 2012
by David B. Bobrosky

Some states put “caps” on damages awarded by juries in tort, or personal injuries cases.

A “cap” is a law that puts an arbitrary ceiling on the amount of damages a judge or jury can award in a case, regardless of the facts or evidence presented in a specific case. The types and amounts of caps vary by state, and can be imposed on parts, or all aspects of an award--- including compensation for actual medical costs, loss of earnings, pain and suffering, and/or punitive damages.

 Caps were recently in the news again because of the Virginia Tech shooting case. The Virginia Tort Claims Act caps jury awards at the maximum limits of a liability policy. This is why the parents of two students who were killed in the Virginia Tech shootings in 2007 may only be awarded $200,000, even though the jury who heard the case awarded $8 million to the two families.


Other Painful Outcomes in “Tort Reform”


In Nebraska, there is a total cap of $1.25 Million on all damages. This includes pain and suffering, as well as money for past and future medical expenses.

In a case featured in the documentary Hot Coffee, a couple who gave birth to twin sons alleged that their doctor failed to identify a problem during the mother’s pregnancy, despite multiple complaints by the mother. When another doctor discovered the problem days later, the mother was rushed to the hospital where a further delay of an emergency c-section was alleged to cause further damage to her son.

Doctors testified that the young boy would need life-long medical care, including multiple surgeries. A jury awarded the family $5.6 Million for these expenses. Despite the jury’s findings, the award was reduced to $1.25 Million due to the arbitrary cap on damages. Thus, the family will not have sufficient money to care for their son. The burden will now most likely fall to the public.

Graphic courtesy of Consumer Attorneys of CaliforniaHere in California, we are limited by MICRA, or the Medical Injury Compensation Reform Act of 1975, which caps non-economic damages in medical malpractice cases at $250,000. This is a cap that has not increased since its inception, despite nearly 40 years of inflation. If it had increased, it should be over $1 Million by now.

When Steven Olsen was two, he tripped and fell on a sharp stick that impaled the front of his mouth, face and sinus cavity. His parents took him to Children's Hospital of San Diego where the doctors repaired the damages and tested for infection, and then sent him home.

A few days later, Steven came down with a fever. His parents took him back to the hospital and requested a brain scan in light of his recent accident. The doctors ignored the request and diagnosed meningitis. Unfortunately, Steven had a ruptured abscess caused by the accident with the stick, and suffered serious brain damage as a result.

Plaintiffs alleged that had the physicians checked the lab results of the infection tests, or had they run a brain scan as requested, it was likely Steven would not have suffered the brain damage.

The jury awarded the Olsens just over $7 million in pain and suffering, but the $250,000 MICRA imposed cap reduced that figure to less than four percent of the intended award.


Caps Do Not Prevent So Called “Frivolous” Lawsuits


Proponents of Tort Reform cite "frivolous" lawsuits, high insurance premiums and better access to health care as reasons to put limits on damages.

But the truth of the matter is that arbitrary caps do not result in reduced premiums, but rather increased profits for the insurance companies. This is why the leaders of Tort Reform are generally the insurance companies.

Personal injury attorneys are not against businesses making profits, or doctors. In fact, my firm does not even handle medical malpractice cases. However, arbitrary caps do not do anything to prevent so called “frivolous” lawsuits – they merely deprive the most seriously injured and damaged people compensation awarded by a jury of their peers.

 

David B. Bobrosky is an Injury Attorney who advocates for the rights and safety of individuals. Contact him via e-mail: 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.

 

 

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Tuesday
Mar272012
DateTuesday, March 27, 2012 at 12:07PM

Injured on Public Property | Suing the Government Poses Challenges

 

Los Angeles Injury AttorneyMarch 27, 2012
by David B. Bobrosky

In most of the cases we handle, our clients have been injured by the negligence of someone else. The specific cause of action that is alleged and must be proven is generally, simple negligence.

When you’re injured on public property – it is not so simple. A person cannot sue the government for general negligence. Any government claims must be allowed by a specific statute.

Claims against a government entity can be very difficult, and there are many obstacles for people who do not know how to navigate such waters.

The most common claim we bring against government entities are claims for injuries due to a dangerous condition of public property. California Government Code Section 835 describes the elements a Plaintiff must prove when bringing such a claim:

  1. The government entity owns or controls the property at issue;         
  2. The subject property was in a dangerous condition at the time of the accident;       
  3. The dangerous condition created a reasonably foreseeable risk of the kind of injury which occurred; and
  4. The condition was created by a negligent or wrongful act or omission of an employee within the course and scope of employment.

-OR-

The entity had actual or constructive notice of the condition in a reasonable amount of time to have taken preventive measures.

I will not discuss all of the elements in this blog post. I will, however, discuss some of the most important aspects of handling such claims.

 

Determining Property Ownership – Is it Public or Private?


The first element can be a trap for the unwary.

If you are injured because of the condition of any property, we must quickly determine if it was owned or controlled by the government, and if so, which entity.

Sometimes it’s easy to determine if you've been injured on public property. For example, a dangerous curve in a roadway – easy to know it involves a public entity. We'll have to determine if that roadway is the responsibility of the State, the City, or the County.

Other situations may involve a piece of land or a business that seems to be private, but is operated by a government entity. Many times there are no signs letting us know who owns or runs a piece of property.

For example, we once represented a client who tripped and fell because of  uneven pavement in the parking lot of a restaurant. It just so happened that the State of California owned and operated the parking lot. If our client had waited to file a claim, the client may have missed the window for compensation by the responsible party (see the timeframes listed below).

 

Suing the Government – A Two-Step Process


Getting to a lawyer soon after a serious injury is imperative when a government claim could be involved, because:             

  1. A claim must be filed against the proper government entity within 6 months of the accident;
  2. The government has 45 days to respond to a claim. If the responsible entity denies the claim (and they almost always do), generally a lawsuit must be filed within 6 months of the written denial of the claim.

There are exceptions to these basic rules, and other time frames that might apply, but these are the general rules that must be followed. Courts are very strict when it comes to enforcing these statutory requirements.

 

The Government Claim - Proving the Dangerous Condition


Assuming you follow the proper procedures and have successfully initiated litigation, you must now prove your claim.

California Government Code Section 830(a) defines a “dangerous condition” as:

a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.

One category of dangerous conditions is public property or improvements that are damaged or deteriorated. Examples can include:

  • A sidewalk that has become damaged resulting in uneven or broken pavement;
  • A stop sign that is covered by overhanging trees;
  • A roadway where lane markings have deteriorated, exposing travelers to potential accidents.

Another dangerous condition includes bad design or planning, such as:

  • A dangerous curve that is not easily recognized or navigated by drivers;
  • Turn lanes in areas where turning vehicles and oncoming drivers do not see each other in a sufficient amount of time to allow for safe decisions when turning;
  • Not installing crosswalks where they are obviously needed.

All of these conditions are examples of conditions that can create substantial risk of injuries to reasonably careful users.

Remember though, that government entities have a multitude of immunities and defenses available to them to fight these claims. This is why it is so important to hire an experienced personal injury lawyer if you have a government claim. A lawyer not experienced in handling government claims can easily lose them before they even get to trial.

David B. Bobrosky is an Encino Injury Attorney at our Firm. If you have questions about a personal injury you suffered, contact him via e-mail: 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.

 

 

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Wednesday
Mar142012
DateWednesday, March 14, 2012 at 2:31PM

Big Rig Truck, Motorcycle, Construction Zone - Wrongful Death Case

 

Encino Wrongful Death AttorneyLos Angeles Wrongful Death Attorney

March 14, 2012
by David B. Bobrosky

In our practice we deal with tragic accidents all too often.  While many people are significantly injured or sometimes killed in auto v. auto accidents, the most violent injuries occur in motorcycle accidents, big rig trucking accidents, and on construction sites.  And when all three are involved– it’s almost always deadly.

We were recently involved in such a case.  We represented a wonderful family who tragically lost their son when his motorcycle collided with a big rig truck.  The family was extremely close, and the loss was devastating for all of them. 

Accident Attorney Encino

The accident occurred when the truck turned left out of a parking lot and entered the path of travel of our clients’ son.  He did not have time to react and his motorcycle collided with the truck, killing him.  The devastation was compounded by the fact that the investigating officer found our clients’ son – the motorcyclist – at fault for the accident.

The family came to us seeking answers.  They couldn’t understand how the accident could be their son’s fault when he was just proceeding straight when this truck blocked his right of away causing the accident. In reviewing the police report, the truck was turning left out of a parking lot across north bound traffic to head south.  The officer concluded that the trucker had entered the roadway and had essentially taken over the right of way from north bound traffic before finishing the turn to head south bound.

We immediately went to the scene of the accident to investigate, and noticed some very important factors: 

Van Nuys Wrongful Death1. The truck was not turning out of a typical driveway, it was turning out from a construction site.  This is very important because contractors and sub-contractors have strict regulations that need to be followed regarding safety.  Once in litigation, discovery showed that the truck driver was hauling material off of the job site. 

2.  Also, the driveway the trucker was turning out of was at the end of a sweeping curve.  When we put ourselves in his position, it was very difficult to see any traffic coming from his left to ever know if it was safe to turn.

Construction Site Safety


Safety is paramount to each and every construction project.  These safety requirements start with the State of California Construction Safety Orders established by CAL-OSHA.  These Orders establish minimum safety standards whenever employment exists in connection with the construction of any fixed structure.

The general contractor on any site is responsible for the overall safety of the jobsite and work environment.  Each contractor and worker involved in a construction project relies on the general contractor to establish the environment, framework and protocols within which they will work. 

Regardless of the general contractor’s responsibilities, however, each supporting contractor (e.g., a grading contractor) and equipment operator (e.g., the truck driver) is responsible for the safety of its own operations and equipment.  It is the responsibility of the general contractor to make sure each such supporting contractor and equipment operator is carrying out duties safely and complying with all safety protocols, rules and regulations.

The most glaring safety violations in relation to this tragic accident were the lack of signs and flaggers to notify and control traffic along the roadway adjacent to the construction site.  The use of warning signs and flaggers were required by CAL-OSHA Sections 1598 and 1599 when hazards exist because of traffic or haulage conditions at work sites that encroach upon public streets or highways.  Other standards required or recommended the use of flaggers as well, including: 

  • The Work Area Traffic Control Handbook (WATCH Manual)
  • Manual on Uniform Traffic Control Devices (MUTCD)
  • Manual of Accident Prevention for Construction (MAPC)

The use of flaggers and flagging has become a highly recognizable and important safety component of construction activity.  Because construction activity is temporary in nature, it calls for unexpected and unusual traffic to be moving on and off of the site. 

The large size of the vehicles that tend to be moving on and off of the site also added to the need for flaggers, as the vehicles require extra time to move across the roadway.  The need for flaggers in this situation was compounded by the large sweeping curve that made it more difficult for the trucker to see oncoming traffic, and difficult for our client's son and other drivers to see the truck exiting the parking lot.

Notwithstanding all of the regulations, standards, and industry practice related to signage and flaggers, the Defendants (including the truck driver and involved contractors), failed to provide any protection for motorists.  Once all of this information came out through litigation, the Defendants settled the case prior to a trial.

The settlement was an important step for the family on their road to recovering from this tragedy.  As we see time and again, such simple and obvious safety standards, if followed, would have prevented a tragic death.

David B. Bobrosky is a Wrongful Death Attorney in our Personal Injury Practice Group. Contact him via e-mail: 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.

 

 

 

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Tuesday
Feb212012
DateTuesday, February 21, 2012 at 2:59PM

Hiring the "Nice" Attorney a Smart Move for Most

 

Los Angeles Personal InjuryLos Angeles Personal Injury Attorney

February 21, 2012
by David B. Bobrosky

A friend of mine says that if he ever hears someone say that his attorney is a nice guy, he or she is fired. He says he doesn’t hire his attorney to be “nice.” If his attorney is nice when interacting with the other side, he or she is not doing their job. 

Mark Hermann published an article recently (“Is Our Lawyer Aggressive Enough”)  on the popular legal website “Above the Law” regarding a similar comment from one of his in-house lawyer colleagues. The comment focused on a concern of whether their outside counsel was “aggressive enough” during a meeting with other attorneys.   Mark described how an attorney can be just as successful, or more successful, being quietly confident as opposed to being a “blowhard.” He also stated another downside to being the type of attorney my friend looks for: 

[B]eing a blowhard can in fact undermine a lawyer’s effectiveness. As a client, I really don’t need to spend money on tangential discovery disputes caused by lawyers with too much testosterone being unable to get along. Being civilized can reduce costs and help speed a case to resolution. 

I completely agree with Mark. In fact, I think the negative effect of being a “blowhard” is magnified in the area of personal injury litigation. 

A personal injury attorney can, and should, be a “nice guy (or gal)”. Comparing two equally skilled lawyers, being  “nice ” helps at every stage of personal injury litigation. 

  • As a client, you want your attorney to be “nice” to you. You want the attorney to truly care about you and your case. This is more important in personal injury litigation than in any other area. If you have suffered a serious injury, or have lost a loved one, you are very vulnerable. You need to feel as though you can trust the attorney and that he or she is working your case as if you are a member of his or her own family. 

  • Statistics show that most cases settle prior to going to trial. Therefore, attorneys must present your case to defense counsel and insurance adjusters. In other words they need to sell your case. Your attorney needs to convince them to ask their superiors for authority to pay money on your case.  Being an attorney the other side likes and respects goes a long way in obtaining maximum value on your case. 

  • For the cases that go to trial, it will benefit you if your attorney is able to cooperate with the attorney on the other side. Cooperation makes the trial much smoother. Judges and jurors also like “nice” and cooperative attorneys.  They do not appreciate attorneys who are always fighting with each other and making their time in jury duty even longer. An unhappy jury is generally not good for a Plaintiff’s case. 

Now, don’t confuse being “nice” for being a push over. An attorney should extend professional courtesies to the other side when possible, and when it does not hurt your case. Regardless, your attorney can, and must, vigorously pursue your case. However, your attorney should do this with the utmost professionalism and respect for the other side and the Court. It will get your attorney and YOUR case much farther.


David B. Bobrosky is a Los Angeles Personal Injury Attorney at our Firm. Contact him at dbobrosky@lewitthackman.com, 818.990.2120.

 
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.

 

 

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Tuesday
Feb142012
DateTuesday, February 14, 2012 at 4:25PM

Damages and Compensation in a Personal Injury Lawsuit

 

Los Angeles Injury AttorneyFebruary 14, 2012
by David B. Bobrosky



I speak to many potential clients on a weekly basis, many of whom have suffered a car accident injury. The most common questions I hear are “what am I entitled to if I have been injured in an accident?” or “what is the driver responsible to pay after a car accident?”  

In this post, I am going to explain the compensatory damages available to you if you have been involved in a car accident. 


We commonly group the types of damages into two classes: 

  1. Economic Damages
  2. Non-Economic Damages

Economic Damage Compensation

 

These damages are what we typically call “out of pocket” expenses. The most common types of personal injury damages in this class include: 

  • Property Damage - This category includes those to your vehicle, and any personal items in the vehicle that were damaged or destroyed in the accident. 

  • Loss of Use Damages - These are damages for not being able to use your property because of the accident. The most common item in this category is the amount you spend on renting a car. 

  • Medical Expenses, Past and Future - If you have health insurance, this is more than your co-pay. It includes the full amount of your bill. In some states, such as California, this is limited to the amount paid by your health insurance company.

    This category, if you have health insurance, is essentially recovered to pay back your health insurance company since the bills were incurred due to the negligence of another. Although your attorney can usually negotiate a discount off of the reimbursement since you are essentially collecting the funds for the health insurance company. 

  • Loss or Earnings - If you missed time from work and/or will miss time in the future, you are able to recover for that lost time. If you own your own business and can prove that you lost profits, or will lose profits in the future from the accident, then you can recover for these as well.

Pain and Suffering: Non-Economic Damage Claims

 

These damages are what we typically call “general damages.”  They are known by most people as damages for “pain and suffering.” 

Non-economic damages most often include compensation for: 

  • Physical pain, impairment and disfigurement from physical injuries sustained in the accident. 

  • Mental suffering and emotional distress related to the accident and physical injuries. 

  • Loss of enjoyment of life due to the injuries suffered. 

  • Grief, anxiety, humiliation and inconvenience from the accident. 

Non-economic damages are often the biggest damages in a case. If you’ve been burned by a defective product or attacked by a dog, the medical expenses may not be astronomical because such injuries do not typically require future medical care. 

However, the general damages for the disfigurement and emotional distress from the permanent scarring for the rest of your life will be significant. 

Likewise, if you are catastrophically injured or if a loved one is killed in an accident, the non-economic damages for your loss of enjoyment of life and grief over your loss will be the major part of your personal injury settlement, or claim at trial. 

The claims discussed above are not an exhaustive list of the damages available in every case, but they are the most typical. And certainly, not all of these damages apply to every personal injury case. But this should give you a good idea of what’s available to recover if you are unfortunately injured by the negligence of someone else. 

David B. Bobrosky is an Accident Injury Attorney in our Personal Injury Practice Group. You can reach him via e-mail: dbobrosky@lewitthackman.com, or by calling 818.990.2120.




 
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.

 

 

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