elder abuse, California lawAccording to the governmental statistics compiled and studies conducted by the California Department of Aging, the population of the Golden State over the age of 60 (considered “elderly”) and over the age of 85 has steadily increased and is expected to continue increasing over the next several decades.  In fact, Cal. is expected to have a 112% increase in their older citizens between 1990 and 2020, according to statistical data.  While medical advances and other factors have increased both life expectancy and quality of life for older Californians, the fact still remains that, at some point in time, most if not all elderly persons will need the assistance of either a home caregiver or to become a resident in a long term care nursing home or assisted living facility.  While the vast majority of these health care providers provide quality and caring service, acts of negligence and even intentional abuse of the elder population can and still do happen with too much frequency.  This is why the laws of the State of California have long provided for protection of the elderly through regulation and enforcement of strict guidelines for elder care workers and facilities and through civil remedies for monetary damages for the abuse of the elderly.

Definition of Elder Abuse Under CA law:

Elder abuse is defined as physical, emotional and/or financial abuse of any adult over the age of 65 under California Welfare and Institutions Code 15600 and following. Depending upon the type of abuse claimed, the elements include the following:

  • Financial Abuse of An Elder Adult: Under California Welfare and Institutions Code section 15610.30 a defendant is liable for civil damages upon proof that the defendant did the following: (1) “took, hid, appropriated or retained” the property of a person 65 years old or older; (2) for a “wrongful use” or “with the intent to defraud”; and (3) this caused damages to the elder person.
  • Neglect of An Elder: One is liable for “neglect” as defined by California Welfare and Institutions Code 15610.57 upon proof of the following: (1) the defendant had “care or custody” of an adult person 65 years of age or older; (2) Failed to use the degree of care that a reasonable person in the same situation would have used by “failing to assist in personal hygiene or in the provision of food, clothing, or shelter; failing to provide medical care for physical and mental health needs; failing to protect the elderly person from health and safety hazards; failing to prevent malnutrition or dehydration” or any other means of negligence; which (3) caused harm.
  • Physical Abuse: Under Cal. Wel. and Inst. Code section 15610.63, a defendant is liable for physically abusing an elderly adult when they engage in physical abuse of an adult over 65 years old and this causes harm (including physical or emotional damages) to the adult over 65.

While the amount necessary to compensate for actual harm is recoverable if any of the above is shown, the additional, so-called, “enhanced remedies” (which include potential punitive damages and an award of attorney’s fees and costs) are available upon a showing that any of the above actions were done with recklessness, oppression or fraud.  Case law has held that, “a plaintiff must demonstrate by clear and convincing evidence that defendant is guilty of something more than negligence; he or she must show reckless, oppressive, fraudulent, or malicious conduct. The latter three categories involve ‘intentional,’ ‘willful,’ or ‘conscious’ wrongdoing of a ‘despicable’ or ‘injurious’ nature. ‘Recklessness’ refers to a subjective state of culpability greater than simple negligence, which has been described as a ‘deliberate disregard’ of the ‘high degree of probability’ that an injury will occur. Recklessness, unlike negligence, involves more than ‘inadvertence, incompetence, unskillfulness, or a failure to take precautions’ but rather rises to the level of a ‘conscious choice of a course of action . . . with knowledge of the serious danger to others involved in it.’ ” Delaney v. Baker (1999) 20 Cal.4th 23.   In addition, if the egregious conduct is on the part of an employee of a nursing home, extended care facility, assisted living arrangement or some other employer charged with physical care of the elderly, that an “officer, director, or managing agent” of the employer had advance knowledge of the unfitness of the employee for their job duties and employed them with a “knowing disregard for the rights and safety of others.” California Civil Jury Instruction 3102.

 

 

Additional Resources:

“What Should I Know About Elder Abuse?”, pamphlet, State Bar of California

California Long Term Care Ombudsman Program

California Nursing Home and Elder Abuse Claims Attorney

California Personal Injury LawsThis November, California voters will get to decide whether or not the caps on damages in medical malpractice cases should be raised for the first time since they were enacted in 1975.   Along with this lift on damages, will be further measures to prevent doctors from being under the influence of alcohol or drugs while treating patients and to prevent them from over prescribing pain medications to persons with a history of substance abuse.  The ballot initiative is proposition 46 (also known as the Troy and Alana Pack Safety Act of 2014) and the highlights are as follows:

  • An increase in the current limit on non-economic damages from $250,000 to account for inflation since 1975, which would place the limit at slightly over $1 Million.
  • Require drug and alcohol screening of physicians and mandatory reporting to the California Medical Board for those who test positive.
  • Require the CA Medical Board to suspend doctors pending investigations following a positive druge test and to take disciplinary action if a doctor is found to be under the influence of alcohol or drugs while on duty.
  • Require health practitioners to report any physician suspected of drug or alcohol impairment while on duty or medical negligence.
  • Require physicians to run a check through the state prescription drug history database before prescribing certain controlled substances.

The measure will not affect any other aspects of the Medical Injury Compensation Reform Act (MICRA) that was enacted in the early 1970′s other than the cap on pain and suffering damages.  The limitations on attorney’s fees, shorter statute of limitation and the various other aspects of that law will stay in place. Moreover, the damages cap is simply being adjusted for inflation.   The question then becomes, why are physician’s groups in California touting this measure as, “trial lawyers waging an aggressive campaign to weaken or overturn California’s landmark Medical Injury Compensation Reform Act”. (California Medical Association blog).  Would the increase of pain and suffering damages to simply account for inflation have the “drastic” consequences of driving up medical malpractice insurance premiums and send doctors fleeing the Golden State!  The statistics and evidence simply don’t bear out their arguments.

Myth: MICRA was a necessary measure to stem a major “crisis” in California of rising medical malpractice insurance premiums.

Fact: In 1975, the insurance industry was not nearly as regulated as they are presently with regard to regulation of premium increases.  All studies on the issue failed to point to “frivolous” medical negligence claims as a cause for the increased cost of insurance for physicians.  In fact, many experts opined that the poor economic conditions of the period had more to do with the premium increases as insurance companies depend upon investment income to make a profit.

Myth: MICRA has served to reduce medical negligence insurance premiums and raising the cap on economic damages will cause these premiums to go back up.

Fact: National statistics show that premiums for physicians in states with caps on damages are actually higher than in states without caps.  In addition, between 2001 and 2011, payments for malpractice claims went down by 50% and profits for insurance companies went up but, premiums only decreased bya whopping 7 %.  This appears to indicate that any reduction on claims simply goes to line the pockets of the insurance industry and does very little to reduce premiums for doctors.

Myth: States without damages caps are suffering from a “doctor shortage” and caps serve to keep doctors in the state.

Fact:  States without damages caps (like New York) actually have a higher number of physicians per capita than states with caps (like California or Texas).

The fact is that simply increasing the limit on non-economic damages to account for inflation is a just and fair measure for all Californians.  The insurance lobby was behind the enactment of MICRA and will, no doubt, pour millions of dollars into trying to convince the average person in the Golden State that the measure was and is fair but, what is fair about limiting parents of a dead child to $250,000 in recovery?  What is fair about putting this same cap on recovery for the loss of a limb?  In addition, wouldn’t we all be more safe if we had testing of doctors and disciplinary procedures in place when physicians operate under the influence of alcohol or drugs or improperly prescribe narcotics to patients proven to be a risk?  I think this answer is YES.  Vote YES on 46!

 

Additional Resources:

Ballot Pedia – Full Text of The Proposed Bill

Consumer Attorneys of California – MICRA Issues Overview

 

wrongful death lawyer Los Angeles The Hollywood Reporter reports today that the death of Lisa Robin Kelly at a drug rehabilitation facility in California (“Pax House”) has spawned a wrongful death lawsuit by her former husband, Robert Gilliam.  (http://www.hollywoodreporter.com/thr-esq/estranged-husband-70s-show-actress-710636).  The story seems to indicate that Mr. Gilliam was “estranged” from Kelly in the period shortly preceding her death.  The allegations as set forth in his complaint are that he was trying to get Kelly into a drug rehab closer to their former home in N.C. and that he had a loving relationship with Kelly and, therefore, valid claims as a widower.

What is the standard under California law for damages in a wrongful death lawsuit?

Obviously, Mr. Gilliam will have to prove that the drug rehabilitation facility is liable for the death of Ms. Kelly, which require showing that they fell below the standard of care for a health practitioner in the business of providing addiction treatment.  He will also need to show that this was a legal cause which contributed in more than a trivial way to the death.  If he does prove these allegations, however, he must then demonstrate the value of his claim (i.e. his “damages”).

As with any personal injury or wrongful death claim in California, damages for the death of an adult person fall into two categories as follows: (1) “Economic Damages”; and (2) “Non-Economic Damages”.

Economic Damages: The laws of CA basically describe out of pocket losses for the death of an adult person in four categories:

  • Lost Family Income: California Jury Instruction 3921 describes the available claims for lost income as follows: “The financial support, if any, that the decedent would have contributed to the family during either the life expectancy that had before [his/her] death or the life expectancy of the plaintiff, whichever is shorter.”  This means that it must be shown through documents such as wage statements or bank records that the person who died was providing at least some financial support to the person claiming injury.  A related Cal. jury instruction provides a formula for figuring out the “life expectancy” of people based upon their age, sex and other factors and, if it can be shown that the person killed was able to earn money for their entire life, the amount of annual income is multiplied over the number of the “shorter” of the life expectancy in years of either the person who died or their survivor.
  • Lost “Gifts or Benefits”: The term “gifts” is not really defined and could mean any number of things.  “Benefits” usually mean things like insurance or other similar things.
  • Funeral and Burial Expenses 
  • Reasonable Value of Household Services: This can include the cost of hiring persons to handle household chores or child care if the decedent was providing those services prior to death.

In the present case, Mr. Gillam will probably be only seeking lost income.  This will require a showing that he was receiving income or support from Ms. Kelly prior to her death.  This may entail showing of both residual income (if any) from “That 70′s Show” as well as future acting jobs.  In order to be compensable, any alleged future income must be more than “speculative” in nature (i.e. there must be a reasonable likelihood that Ms. Kelly would have obtained jobs in the future that would have paid Mr. Gillam income or spousal support).

Non-Economic Damages: California personal injury law provides that the surviving spouse or children of a person killed by the negligence or intentional wrongdoing of another person or company may receive the value of the, “loss of love, companionship, comfort, care, assistance, protection, affection, society, moral support” and, in the case of a deceased husband or wife, the “loss of sexual relations”.   There is no, set standard on calculating these damages.  However, the law asks a jury not to consider three things in coming to a decision on a non-economic damage wrongful death award, which are as follows:

  1. “Grief, sorrow or mental anguish”;
  2. “Pain and suffering”; and
  3. “The poverty or wealth of the plaintiff.”

Again, putting liability issues aside, in my opinion as a California wrongful death attorney,  this will really be where the heart of the matter lies in the Gillam case.  Mr. Gillam will need to show that his loss of “love, companionship, etc.” has value by showing the nature of his relationship with Ms. Kelly in the time frame leading up to her death.  His allegations are that they had reconciled their relationship and he was in the process of trying to help her recover from drug addiction.  The defense will, obviously, argue that the marriage was strained and that the two were not close in the years and months leading up to the death of Ms. Kelly.  It will be up to a jury to decide these issues assuming the case survives any “dispositive” motions such as a Motion for Summary Judgment.

 

Related Resources:

Wrongful Death Claims in California 

 

 

Dodger Stadium Assault LawyerThe trial of Brian Stow vs. the Los Angeles Dodgers began last week in L.A.   Almost three years ago, Mr. Stow was severely beaten in the parking lot after a game between the Dodgers and the Giants.  Two assailants, Marvin Norwood and Louie Sanchez, have long since pleaded guilty to the beating and have been sentenced to prison for the attack, which left Mr. Stow with permanent brain damage.  The civil suit alleges that the Dodgers organization, through their former owner, Frank McCourt, were negligent in the security operations of the stadium and should be held accountable, at least in part, for the personal injuries sustained by the beating victim.  The plaintiff is seeking approximately $52 Million in damages under theories of civil liability for negligence, specifically, premises liability and negligent hiring/retention/training of security personnel.

What is the standard for holding a business responsible for criminal conduct on their property in CA?

In order for an injured person to hold a property owner responsible for their bodily harm, a plaintiff must prove the following four things:

  1.  That the defendant owned, leased, occupied or controlled the property;
  2. That the defendant was negligent in the use or maintenance of the property;
  3. That the plaintiff was harmed; and
  4. That the defendant’s negligence was a “substantial factor” in causing the harm suffered. See CA Civil Jury Instruction 1000

There does not seem to be any dispute that the parking area where the beating occurred in this case was owned by the Dodgers.  There is also no dispute that Mr. Stow has sustained major, life altering injuries including head trauma which left him an a coma and has since caused him to have permanent loss of cognitive and bodily function (although the defense will no doubt dispute the extent of the injuries and the cost of present and future medical care).  What is really at issue in this case is whether the Dodger’s ownership was “negligent” in the “use or maintenance” of the parking area in question and whether this negligence as a “substantial factor” in causing the harm.  The plaintiff has several arguments that seem to center around the lack of proper security measures including alleged poor lighting and lack of security personnel patrolling in this area at the time of the beating.  There apparently will be evidence that security was scaled back prior to the incident by owner Frank McCourt as a cost saving measure. The defense is counter arguing that the security on site on the date of the incident was sufficient for this size sporting event and venue.  No doubt, experts will testify on both sides as to the adequacy or inadequacy of security guards and police presence.

Generally, a property owner in California is not liable for criminal conduct by third parties unless it is foreseeable.  Mr. Stow’s attorneys will argue that a property where rival fans congregate, are served copious amounts of alcohol, and are let out of the stadium after skirmishes or verbal arguments are engaged in inside the stadium, should be enough to put Dodger Stadium on notice of a need for tight parking lot security.  The defense will likely argue that the security provided was reasonable even given all of those factors.

When is a sport team or other commercial enterprise liable for negligent hiring, training or supervision of security staff under the laws of the State of California?

Next at issue on the liability front will be arguments that the Dodger’s organization failed to act reasonably in the manner in which they hired, trained or supervised their employees retained to surveill and secure the property.  This claim requires proof of the following:

  1. That the employee(s) was/were unfit/ [or] incompetent] to perform the work for which they were hired;
  2. That the Dodgers management knew or should have known that employee(s) was/were [unfit/ [or] incompetent] and that this [unfitness/ [or] incompetence] created a particular risk to others;
  3. That the security staff’s unfitness/ [or] incompetence harmed plaintiff; and
  4. That the Dodger’s negligence in [hiring/ supervising/ [or] retaining] the security personnel was a substantial factor in causing Mr. Stow’s harm.

Again, if staff were supposed to be patrolling the area in which the assault and battery took place but, were not, then arguments could be made that such failure was based upon inadequate screening, training or supervision of these security guards.  Likewise, if staff were not trained or supervised to remove rowdy patrons who engage in verbal altercations inside the stadium, a security expert may opine that this was the result of poor training and/or supervision.  The defense will likely counter that the staff was adequately trained and supervised but, they couldn’t possibly be in all places at once nor could the Dodgers foresee that a verbal altercation in the stands could result in a near deadly beating in the parking lot.   A jury will have to decide who is right on these issues.  CA Civil Jury Instruction 426.

Additional Resources:

For more information on negligent security claims in California including at sporting events in Los Angeles, click here.

 

paul walker death, california speeding laws, california auto accidents, los angeles car wrecks

Paul Walker dies in fatal car wreck in Los Angeles County California.

The Paul Walker car crash near Los Angeles last year has prompted a lawsuit against Porsche of North America.  The lawsuit alleges various causes of action including negligence and strict products liability.  (For full copy of complaint via PDF, click here).  The legal action is brought by one of the survivors of Paul Rodas (the driver at the wheel at the time of the crash who was a professional race car driver).  The suit also alleges false advertising claims and related violations of the California Business and Professions Code.

What does a plaintiff have to prove in an alleged product design defect claim in California?

There are basically two types of product defect claims as follows: claims of defects in the manufacture of a product; or assertions that the product was defective by design.  In the case of the Roda’s claim in question here, the allegation is that the Porsche Carrera model involved in the crash was defective in design for lack of a racing fuel cell.  Under California law, this will require proof of the following:

  1. That the vehicle, as designed, was defective; and
  2. The defect was a substantial factor in causing the death of Rodas.

The question becomes how does CA law define a manufacturing design defect.  For this, the court will probably rely upon the so-called “Consumer Expectation” test which requires showing that the vehicle did not peform, “as safely as an ordinary consumer would have expected it to perform when used or misused in an intended or reasonably foreseeable way”.

This will require extensive expert analysis and testimony.  There are apparently no Porsche models made for street use that are equipped with a racing fuel cell, which essentially encases the fuel tank and keeps it from being exposed to hot brakes or engine parts in the event of a crash.  The plaintiffs allege that this particular model (capable of speeds in excess of 200 miles per hour) had a history of fatal crashes and will argue that Porsche knew or should have known that a fuel cell was necessary to prevent injury or death when the vehicle was traveling at high rates of speed on the street.  Porsche could argue that the incident in question was solely the result of misuse of their product in an unintended manner (i.e. high speed racing on a suburban street) and/or that requiring installing of a racing fuel cell would not be economically feasible and would not have prevented the type of harm suffered.

Related Resources:

Los Angeles Car Accidents

trucking accident lawyer los angeles, trucking accident attorney californiaCan a delivery truck driver be liable for negligent parking under the laws of the State of California?  This was the question presented recently to the California Supreme Court in the matter of Cabral v. Ralph’s Grocery Company 179, Cal.App.4th 1.

Facts of the Case:  A semi truck operator employed by Ralph’s Grocery Company pulled off the freeway in San Bernardino California to eat his lunch.  He parked his vehicle in a dirt area alongside the interstate highway.  He testified that he routinely parked in that spot to eat his lunch.  At the request of the California Highway Patrol, CalTrans had previously placed an “Emergency Parking Only” sign near the area as it had become a spot where truckers were pulling off and stopping for non-emergency reasons.  Plaintiff was traveling at a high rate of speed and inexplicably lost control of his vehicle and slammed into the rear of the tractor trailer and was instantly killed.  There was no indication that the driver was intoxicated prior to the crash and the best speculation was that he may have fallen asleep at the wheel or had some medical condition that caused him to swerve off the road and collide with the semi truck.

Result of the Jury Trial: The jury found that the plaintiff was 90 percent at fault for the accident but, found that the Ralph’s truck driver and (vicariously) Ralph’s Grocer Company was 10 percent at fault for parking the truck in an emergency stopping area without exigent circumstances warranting such a stop.  The defendant, Ralph’s, brought a Motion for Judgment Notwithstanding the Verdict (so-called “JNOV”).  The trial judge granted the motion and nullified the jury verdict for wrongful death in favor of plaintiff’s surviving heirs.

Result of Appeals of the Jury Verdict: The initial Court of Appeal decision was to uphold the decision of the trial judge.  However, upon review by the California Supreme Court, the decision to nullify the verdict against Ralphs Grocery was overturned.  The Court held that there had in fact been enough evidence for a jury to place some amount of blame (in this case 10%) to the driver of the 18 wheeler for parking his truck in an unauthorized and illegal manner.

The two issues presented upon appeal were as follows:

1. Did the truck driver have a legal duty that was breached:  The court started with the basic law of negligence in California which is codified in Cal. Civil Code 1714 and states: “every person is responsible … for an injury occasioned to another by his or her want of ordinary care.”  It further used the criteria laid out in the landmark decision of Rowland v. Christian (see prior blog post here), i.e. forseeability of causing harm, likelihood of causing bodily injury, difficulty of protecting against the risk of harm in making its decision.  Using these criteria, the CA Supreme Court held a duty did exist on the part of the truck driver and whether that duty was breached was a question of fact for the jury to decide.  They expressed this opinion, inter alia, as follows:

“If a duty is imposed under the facts of this case, where does it end?’ [Citation.] In turn, I ask: If a duty is not imposed under the facts of this case, then where does it begin?” Indeed, one might ask under what circumstances Ralphs would have us recognize a duty of ordinary care in stopping alongside a freeway, if not in these. If stopping 16 feet from the traffic lanes exempts a driver from the duty of care, does the same hold for parking six feet from the lane? Six inches? If we are to create immunity for a truck driver stopping for a few minutes to have a snack, should we also do so for one who decides to sleep for hours by the roadside rather than pay for a motel room? Would the categorical exemption Ralphs seeks still apply if a tractor-trailer driver parked an inch from the traffic lanes, on the outside of a curve, leaving the rig there all night without lights? To ask these questions is to see why a categorical exemption is not appropriate. The duty of reasonable care is the same under all {Slip Opn. Page 26} these circumstances; what varies with the specific facts of the case is whether the defendant has breached that duty. That question, as discussed earlier, is generally one to be decided by the jury, not the court.”

2. Did Parking The Truck On the Side of The Freeway “Cause” The Death:  Here the court used the “substantial factor” test explained in prior posts and determined that a reasonable jury was entitled to conclude from the evidence presented that the parking of the truck on the side of the road was a factor in causing the driver’s death.  They held in pertinent part as follows:

“The negligent conduct plaintiff claimed caused her husband’s death was Horn’s stopping his tractor-trailer rig at the site. The counterfactual question relevant to but-for causation, therefore, is what would have happened if Horn had not stopped his tractor-trailer rig there, not what would have happened if Horn had had a better reason to stop.”

Important Points to Draw From This Decision for Victims of Personal Injury in California:

Decisions like this one show that the civil justice system in California is reluctant to allow judges to simply decide on their own that there should be no legal responsibility for an injury or death in contrast to a jury decision otherwise.  While many factors may contribute to the bodily harm or death of a person, negligence on the part of any person or business should be analyzed as one of many causes and a jury should be allowed to apportion fault for this type of incident.

Related Resources:

Trucking Accident Claims in CA

 

 

hit and run, accidents, los angeles, Los Angeles personal injury attorney

Hit and Run Accidents in Los Angeles

The level of hit and run accidents in Los Angeles has now reached epidemic proportions according to various reports.( http://www.usatoday.com/story/news/nation/2013/11/10/hit-and-run-crashes-los-angeles/3452699/ ).

The statistics are frightening:

  •  Over 20,000 hit and run incidents in the City of Los Angeles every year.
  • 4,000 or more of these result in injury or death to drivers, pedestrians, cyclists, joggers and skateboarders
  • By some estimates, the City of L.A. has as many as 15-20% higher rates of hit and run accidents than many other major U.S. Cities

This has led many to dub the City of Angels, “ground zero for hit and run” accidents.  As a personal injury lawyer that practices in L.A., I thought I would provide some legal advice to all Angelenos on how to protect themselves from the damage that is caused by these horrific incidents.  The main legal and risk management protection that anyone can prepare for is to make sure that you have uninsured motorist coverage in their auto insurance policy and know what is legally required to incept coverage in a hit and run scenario.  The provisions of CA law that protect victims of hit and run incidents from bearing the financial burden of medical expenses, property damage and other financial losses as well as pain and suffering really lie in the insurance code provisions on incidents caused by drivers who have not shown “financial responsibility” by having auto insurance coverage.

  1. Uninsured Motorist Coverage is Automatic Unless Waived in Writing: Every policy of insurance written in the State of California has uninsured motorist coverage at the same level of coverage as personal injury protection unless expressly waived by the insured.
  2. Uninsured Motorist Coverage Covers Hit and Run Accidents: Uninsured motorist coverage will cover any hit and run accident including being struck as a motorist, bicyclist or pedestrian so long as certain conditions are met as follows:
  • Physical contact between the vehicle that hit and ran
  • Prompt report of the incident to the police and the request of a report
  • Prompt report of the incident to your automobile insurance company

What this means is that every motor vehicle operator in the State of California including Los Angeles residents can protect themselves by doing the following:

  1. Never waive uninsured motorist coverage in their auto policy
  2. Always try to maintain as high a limit as you can afford for bodily injury and property damage
  3. Always report hit and run incidents to the police and request that a police report be made
  4. PROMPTLY report this to your auto insurance company
  5. Even though uninsured motorist claims are being filed against your own insurance company, retain an attorney to be your advocate to ensure that you obtain full and complete and maximum compensation 

If you are unfortunate to be involved with a careless driver who strikes you or your vehicle and then takes off without providing any information, don’t become a victim. Don’t be stuck with present and future medical expenses, or fail to be compensated for the physical pain and emotional toll this type of event can take on your life.  Get professional legal help and don’t delay!  These are my “words of wisdom” for this terrible epidemic of irresponsibility!

Related Resources:

For more information on uninsured motorist claims in California, click here.

For general information about car accident claims filing in Los Angeles or anywhere in California, click here 

U.S. Tort Law, Tort Reform, American Civil LibertiesAs an American, I am proud of our country’s heritage which embraces a broad spectrum of ideals including what are traditionally known as “liberal” or “progressive” values as well as “conservative” values.  I think both John F. Kennedy and Ronald Reagan were great leaders in their own right who probably embody these two traditions the best.  While it is apparent from the last few elections that Americans seem to be embracing many centrist views as well, there are many who, at least in part, have a stronger ideological lean towards what they believe to be “liberal” or “conservative” values.  In my opinion, no matter where you come down on the political spectrum, the notions promoted by “tort reformers” are not supported when you truly understand what this “reform” movement is all about.

What is “Tort Reform”?

Our American system of jurisprudence developed from Anglo-Saxon law over hundreds of years.  As I’ve blogged about before (see here) , our founding fathers fully supported the right of the individual to redress through the civil justice system by enacting the 7th Amendment to the U.S. Constitution which guarantees the right to a trial by jury in civil cases.  From colonial days until now, this system has continued to develop to allow individuals and classes of persons who have been harmed by wrongdoing or negligence (i.e. “torts”) to seek monetary compensation through a civil jury trial.  What “tort reform” aims to do is to issue, by government decree, that individuals and classes of people should not be able to bring civil actions in certain instances and/or should be limited in the amount they are able to recover by a predetermined structure as opposed to the judgment rendered by a jury of their peers.  It comes in many forms but, includes proposals to limit class action lawsuits, to shorten the statute of limitations (time deadline) for filing personal injury claims, and to put a cap on the amount of damages for out of pocket losses like medical bills and lost wages and/or general damages for the pain and emotional distress caused by a catastrophic injury or death caused by the wrongdoing of another individual or business.  The vast majority of “tort reform” advocates are large corporations that have disseminated false information that there is a “tort crisis” in America and that “run away juries” must be kept “in check”.  In fact, civil lawsuits related to personal injury claims and average jury verdicts have been declining for almost three decades and now constitute a mere 4-5 % of the total number of civil claims being filed in the U.S. (the vast majority of which are business to business disputes and not injury or death claims).

Why is “Tort Reform” Not Supported by Liberal or Progressive Values?

I think the term was best summarized by J.F.K., when he defined a “liberal” as follows: “someone who welcomes new ideas without rigid reactions … someone who cares about the welfare of the people – including their civil rights and their civil liberties.”  Likewise, in The Conscience of a Liberal, by Paul Krugman, a “liberal” is defined as “someone who believes in a relatively equal society, supported by institutions that limit the extremes of wealth and poverty in society … [and supports] democracy, civil liberties and the rule of law.”

To me, there can be no greater forum for democracy and the rule of law supporting the common welfare of all spectrum of society than the civil justice system.  Civil courts are the one (and sometimes only) place where a common citizen can come and air his or her grievances against even the largest and most powerful corporation or individual and have a jury decide how “justice” might best be served.  “Tort reform” limits this right of the individual that our founding fathers felt was both a civil right and a civil liberty as expressed in our Bill of Rights.  “Tort Reform” is a scare tactic propagated by mostly large corporate interests that would have us believe that exercising our individual freedoms is “killing American business.”  In fact, what it is doing is keeping corporate America in check by providing a disincentive to produce dangerous products or to do things that harm the environment or otherwise endanger our health and safety by the constant possibility that legal action can be taken if those businesses put “profits over people.”

Why Does “Tort Reform” Not Reflect Conservative Ideals?

Conservative ideals in modern America tend to value a restrictive role of government influence in the lives of individuals.  As stated by William F. Buckley, “It is the job of centralized government (in peacetime) to protect its citizens’ lives, liberty and property. All other activities of government tend to diminish freedom and hamper progress. ” Likewise, Ronald Reagan was famous for his quote, “government is not the solution to our problem; government is the problem.”  Why then would any true “conservative” support measures which allow the government to dictate when any individual or group of persons should have access to the U.S. court system, whether or not they are entitled to redress if they are wronged and how much they may receive for such wrongdoing?  True conservative values eschew such government restriction of civil liberties, do they not?  Totalitarian states dictate to the people what they can and cannot do and severely restrict individual liberty.  In America, conservative ideals strive to allow individuals freedom to exercise their rights as outlined in the Bill of Rights and other important memorials of civil liberty without the “State” limiting those rights.

Conclusion

No matter whether you consider yourself liberal, conservative or centrist, supporting civil liberties and the rights of all Americans to civil justice should be something we can all believe in and get behind.  The next time you are asked to serve on a civil jury, do so proudly.  If you feel that the plaintiff has not proven his or her case, then you should voice this in the jury room during deliberations.  If you feel that the injured party has proven their case and should be entitled to each and every damage caused by that negligence or wrongdoing, then be bold and stand up for the rights of that person to full and complete compensation.  Vote for politicians that refuse to compromise and “sell out” to special interests and lobbyists who are hell bent on preserving their profit margins at the expense of your personal liberties.  This is the American way!!

 Additional Resources:

American Association for Justice, Debunking the Myths Behind the Tort Reform Movement

California Personal Injury Laws

California Personal Injury Laws

When do California courts deem a defendant to have “caused” personal injury to the extent that they should be held to pay damages to the injured party?  This was a long standing debate in the State of California up until fairly recently.  Based upon definitions of “causation” dating back to English tort law and moving forward to the 20th century, there were differing standards.  In 1991, in a decision entitled Mitchell v. Gonzalez (1991) 54 Cal.3d 1091, the California Supreme Court made a ruling which did away with some of these varying definitions and made a decision that now forms the basis for the current jury instructions including California Civil Jury Instruction 430.

Legal Background of Defining Who and When Someone “Causes” A Personal Injury

Prior to the Mitchell decision, California Courts held that a defendant’s conduct, error or omission to act must have been both the “actual” and “proximate” cause of injury or harm to another person in order to hold them liable for civil damages.  Defining these concepts led to varying jury instructions including BAJI 3.75 and BAJI 3.76 (the two former CA civil jury instructions on personal injury causation).  Under BAJI 3.75, juries were instructed that the a person or entity could not be held legally responsible to pay a personal injury award unless the jury could decide that “but for” their negligence, the incident causing harm would not have occurred.  Alternatively, BAJI 3.76 defined the “legal cause” of an alleged tort to be something that was a “substantial factor” in creating the danger that harmed the plaintiff.

Mitchell v. Gonzalez (Example of Causation Conundrum): The facts of this case were that a 12 year old child was invited on vacation by a family.  The child drowned and died while playing on a paddle board in a lake in water over her head.  At the time of the incident, the child was with two of the defendant’s children and the parents were arguably, not supervising the children as closely as they should have been.  There was also argument, though, that one of the parent’s children had “pushed” the decedent off the paddle board prior to the drowning.  At the time of trial, the plaintiffs requested BAJI 3.76 and the defendants demanded BAJI 3.75.  The court gave 3.75 and the jury came back with a decision that the parents were negligent but, that their negligence wasn’t the “proximate cause” of the death of the child.  The CA Sup. Ct. decided that BAJI 3.75 was causing too much confusion as to how to define legal causation and there was too much discord within the courts as to when it was appropriate to use 3.75 and it prejudiced the plaintiff’s claims in this and other instances enough where it should be done away with and permanently replaced by 3.76, which simply required a showing that the defendant’s conduct was a “substantial factor” in causing harm.

Present Legal Standard for Personal Injury Causation Under the Laws of the State of California

All of the prior “BAJI” instructions were re-drafted into the present jury instructions entitled, California Approved Civil (Jury) Instructions (aka “CACI” Instructions).  Based upon the Mitchell ruling, California now has a singular definition of when someone has “caused” personal injury to another to enough of an extent that that person or entity should be held to account.  Just about every definition of a tort on California including negligence and intentional torts like assault and battery now state that the defendant’s conduct must be a “substantial factor” in causing damages to the plaintiff.   The legal definition of a “substantial factor” is set forth in CACI 430, entitled, CAUSATION – SUBSTANTIAL FACTOR which states as follows:

“A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. It does not have to be the only cause of the harm.”

Importance of the Substantial Factor Test For Personal Injury Victims in the Golden State

In my opinion as  a civil trial attorney in California, the Mitchell decision has provided one clear standard for proving fault (i.e. Were the acts or failures to act by the defendant “more than a remote or trivial factor” in causing the plaintiff’s injury or death?)  The fact that there can be several causes of an incident and even several persons who may have caused a catastrophic injury or death is no longer confusing if a jury understands that any factor which causes harm leads to legal responsibility unless it is so remote or trivial that they should not consider it.

Additional Resources:

Los Angeles Personal Injury Lawyer

California, Personal Injury LawThe Third Circuit Court of Appeal in California has recently issued a ruling in Corenbaum v. Lampkin (2013) 215 Cal.App.4th 1308, that, in my opinion as an attorney that represents injured victims in California, has simply added insult to injury to a terrible decision issued in prior CA Supreme Court case, Howell v. Hamilton Meats, Co.  As I discussed at length in a blog post last year (click here), the Howell decision basically held that persons claiming personal injury in California who had health insurance at the time of the incident could only introduce the amount paid by health insurance as evidence of the reasonable value of past medical expenses.  What that decision left open is whether or not a plaintiff should be limited to introducing evidence of health insurance paid amounts for purposes of arguing the value of future medical services or non-economic damages (pain and suffering).  These issues were addressed in the Corembaum case.

Background of Corenbaum Decision Regarding Evidence in Personal Injury Trials in California

The plaintiffs in Corenbaum were two passengers in a taxicab in Los Angeles when they were involved in a motor vehicle accident where the driver (who was under the influence of alcohol at the time) hit the cab and then fled the scene. They brought civil claims for damages against the at fault driver and took the case to a jury trial.   Prior to trial the plaintiff moved to exclude any evidence of health insurance payments for any of the medical costs incurred as a result of the traffic collision.  As was customary prior to the Howell decision, the defendant moved to hold a post-trial motion to reduce the amounts awarded to plaintiffs based upon actual amounts paid by insurance rather than the amounts billed by the health care provider.  The court granted both motions and allowed the plaintiff to introduce the actual amounts billed for all medical services provided to them as a result of the incident.  The jury awarded one plaintiff $1,834,602.00 and the other $1,392,141, in combined damages for past medical expenses, future medical expenses and pain and suffering.  The post trial motion to reduce was held and the award was knocked down to $1,537,985.00 and $1,108,362.00 respectively based upon the difference between what was billed by the health care providers and what was ultimately paid by health insurance for the past medical expenses.

The defendant appealed the verdict and argued, in pertinent part, that the amount of the actual medical bills issued should not have been introduced into evidence based upon the Howell v. Hamilton Meats ruling.  The plaintiff’s argued that the Howell ruling was that such evidence was not admissible to show past economic damages but, it should be introduced for the purposes of showing the value of future medical costs and/or pain and suffering damages.  The Court of Appeal disagreed and held that such evidence is inadmissible for any purpose and reversed the award and ordered a new trial for the purpose of determining damages.

Why Is This Another Bad Decision for Personal Injury Victims in California?

California, like most other jurisdictions in the U.S., purports to follow the “collateral source rule”.  This rule prohibits the introduction of evidence of insurance for any purpose in a personal injury trial.  The public policy rationale is supposed to be that persons should not be penalized for having obtained health insurance to pay for unexpected medical expenses and the defendant should be rewarded for such prudence either.  Quite frankly, the California courts were, in my opinion, violating this rule even under the “pre-Howell” scheme of allowing the plaintiff to introduce the full amount of her or her medical bills and then allowing the trial judge to reduce the award of past medical expenses to what insurance actually paid.  The Howell case made the collateral source rule irrelevant by mandating that evidence of insurance payments alone should be introduced at trial as the “reasonable value of medical services”.   The Corenbaum case takes this one step further by not allowing evidence of medical bills even for purposes of calculating future medical expenses or pain and suffering.

Although there are specific jury instructions which state that the jurors in a personal injury claim in CA are not bound by any specific formula in calculating pain and suffering, trial lawyers all know that jurors have preconceived notions that their award for physical pain or emotional distress is somehow tied to the medical bills.  Three times the medicals or similar factors is a common “formula” that many jurors have in their minds.  We also know that medical insurance providers require drastic reductions between the amount that doctors and hospitals charge patients without insurance and what they will pay pursuant to contract.  While this makes sense to keep the cost of medical insurance down, it should not have any affect on what a plaintiff should be able to argue are his or her “reasonable costs” of either past or future medical expenses much less be able to affect what a jury might award a plaintiff for pain and suffering damages.  In my opinion as a California plaintiff’s personal injury lawyer, this case is adding further insult to the injury of a bad decision.   I am hopeful that current efforts being made by the Consumer Attorneys of California and other consumer interest groups in the Golden State will result in legislation overturning both Howell and Corenbaum!  California injury victims deserve better!!