Articles Posted in California Personal Injury Law

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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.
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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.  (  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”).

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emotional distress, trauma, anxiety, California Personal Injury Law

Emotional Distress Claims in California

California law on emotional distress claims is based upon hundreds of years of jurisprudence including statutes and case law.  The rights of any particular individual to claim damages for psychiatric trauma from an intentional or negligent act depends upon many factors including whether the person suffered actual physical harm or was in the so-called “zone of danger” when a catastrophe happened.  California breaks down these rights in basically two legal causes of action as follows:

Intentional Infliction of Emotional Distress Claims Under the Laws of the State of California

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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

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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.

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planes, trains, automobilesThe National Transportation Safety Board (NTSB) has just released its “Most Wanted” list, which reflects what it feels should be priorities for transportation safety in the U.S. moving forward into 2014.  These priorities are all well in line with what I see as transportation safety needs for California as well.  They include the following:

  1. Subways, Commuter and Light Rails: The report indicates that there are still active, pending investigations of rail crashes causing injury or death in various light rail incidents across the U.S. including incidents involving Bay Area Rapid Transit (BART) in the San Francisco Bay Area.  As cities in California including Los Angeles and San Diego continue to develop more light rail projects such as the Metro Lines in L.A. or the San Diego Trolley system, there will inevitably be light rail crashes that prompt calls for further safety measures in the Golden State.  Los Angeles intends to extend their subway system further into West Los Angeles / Santa Monica and the San Fernando Valley, for instance and increased ridership will, no doubt result in some additional mishaps.  The key is determining cause in these incidents and trying to use this information to improve railway safety by modifying equipment and / or operational practices.
  2. Helicopter Operations: The NTSB article points out that helicopter traffic continues to increase especially in urban areas as more and more copters are being used for various purposes like law enforcement support, news gathering, medical services, and transportation.  Between 2003 and 2013, there were 1,470 helicopter crashes nationwide, which resulted in 477 deaths and 274 serious injuries.  Urban areas of California like Los Angeles have seen an increase in aviation traffic including helicopters and will no doubt need to heed the call for further safety to prevent such mishaps here in CA.
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Ride Share, Legal Liability for Ride Share Accidents, California LawAs a resident of Los Angeles, I began seeing cars around town with big, pink fuzzy mustaches on them and wondered what this was all about.  It turns out that this is one indication of a “ride-share” vehicle.  The concept is to allow drivers to connect with people needing rides via smart phones and the internet as an alternative means of transportation to taxis or public transport like buses.

Various companies like “Lyft” , “Uber X” and “Side Car” have been operating in major cities in California for some time now but, have run into resistance from some municipalities and taxi companies.  The California Public Utility Commission finally decided to create a separate category for these programs labeling them, “Transportation Network Companies” and to issue regulations related to these entities.  The regulations will allow these companies to keep operating in the Golden State if they obtain a CPUC license, which will require the following:

  • Every ride share driver must be subject to a criminal background check
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drug rehab, liability of drug rehab clinic for abuse of patient, california lawLos Angeles is home to more than its fair share of drug and alcohol rehabilitation facilities.  While most of these make good faith efforts at curbing drug and alcohol addicted patients, the Hollywood Reporter recently published a story about a wrongful death civil lawsuit filed by the parents of 22 year old Andrew Witkoff arising from his death while a patient at one such facility.  (See story here).  The facts allege that the facility represented itself as a “Class A” in house clinic with trained personnel but, in fact, the staff persons assigned to monitor Mr. Witkoff had little or no training in monitoring and supervising drug addicted patients and that lack of proper supervision led to Mr. Witkoff continuing with his oxycontin consumption and his eventual overdose while at the facility. The lawsuit raises three, principal claims as follows: (1) Negligence; (2) Dependent Adult Abuse; and (3) Fraud.  I thought it would be interesting to explore what will need to proven by the parents of the deceased patient to prevail on these claims and what potential recovery of money damages may be gained in these various causes of action.

What is “Negligence” As It Applies to The Administration of Drug Counseling and Rehabilitation?

California law defines “negligence” as a breach of a legal duty to provide ordinary and reasonable care which causes damage to another person.  If this results in a death, then the survivors or heirs (including parents, siblings, and children) may be entitled to recover damages for both financial support previously provided by the decedent as well as the “economic value” of the loss of “love, companionship, comfort, care, assistance, protection, affection, society, moral support.” (See: Wrongful Death Claims in California).  In this case, it appears that the decedent may not have provided financial support to his surviving parents but, they would still be entitled to the “general damages” for the loss of their loved one if they can prove that the care provided was below reasonable standards for a same or similar rehab clinic.

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This is the third installment in my continuing series of famous tort cases that have come from the California court system.  Today’s case is Tarasoff v. Regents of the University of California (1976) 17 Cal.3d 425.

Facts of the Case: A graduate student attending the University of California at Berkeley met another graduate student at school and tried to start a romantic relationship with her.  When his advances were rebuffed, he started having serious psychological issues and eventually sought counseling with a therapist from the University.  During the course of his psychotherapy sessions, he made a confession to his psychologist that he intended to kill the woman that had refused his romantic gestures.  The female student, Tatiana Tarasoff, had been on a study abroad but, had recently returned to attending school at the time the threats were made.  Although the health care worker did diagnose the patient with paranoid schizophrenia and requested a detention by campus police and an involuntary hold of the patient, the patient was later released and carried out his threat by committing murder of Tarasoff.  Tarasoff’s family sued the University for the wrongful death of their daughter.

Legal Issues PresentedThe main issue to be decided was whether the school psychologist had a duty to warn Tarasoff that threats had been made against her life by the patient.  A related issue was whether the communication of a threat of bodily harm or violence was something not protected by the normal doctor patient privilege which usually allows certain conversations between a doctor and a patient to remain confidential.

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 Yellow Tape Blocks a Crime Scene“…it has properly been said that when a child is endangered, it is not beyond contemplation that its mother will be somewhere in the vicinity, and will suffer serious shock.” (Prosser, Law of Torts (3d ed. 1964) p. 353.)

As part of my continuing series of famous case law that came from the California Court system, I wanted to discuss what is probably one of the most cited authorities throughout the United States on personal injury law as it relates to claims for emotional distress.  This is the California Supreme Court decision of Dillon v. Legg (1968) 68 Cal.2d 728.

Facts of the Case:  This was an auto accident claim where an infant child was killed.  At the time of the accident and the death of the child, both the child’s mother and sibling were present and witnessed the child die.  However, there was arguments as to whether just the sibling rather than the mother was in “close proximity” to the accident scene itself at or near the time of the child’s death.  The trial court granted a “summary judgment” against the mother on her claims of negligent infliction of emotional distress but, sustained the claim of the sibling.  It went up to the California Supreme Court to decide the scope of this tort of negligently causing another person emotional distress and who should be able to make this claim and under what circumstances.

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