San Diego Injury Law Blog

The California Supreme Court recently reached a decision which many San Diego personal injury lawyers will likely find misguided in its ruling in Howell v. Hamilton Meats & Provisions. As mentioned in an article in the Sacremento Bee, the case involved a San Diego car accident victim who sustained injuries when a Hamilton Meats truck attempted to execute an illegal U-turn and struck the victim's vehicle. The victim, a woman named Rebecca Howell, sued Hamilton Meats to recover for, among other things, the cost of the medical treatment she had to receive as a result of the truck driver's negligence.

The main issue in this case became the amount of the medical expenses for which the plaintiff should be allowed to recover. Rebecca Howell was represented by several California personal injury attorneys. Her attorneys argued that she should be permitted to recover the full amount of the charges billed by her medical care providers. The attorneys for the defendant argued that she should only be entitled to recover the smaller amount that the medical providers would bill to and accept from the health insurance companies. The California Supreme Court decided that the plaintiff should not be allowed to collect any expenses above the amount incurred by either the plaintiff or the plaintiff's insurance company because those expenses were not a true “economic loss.”

The consequences of a decision like this are not limited to those that can be immediately seen. Of course the insurance interests who are always seeking to pay out as little money as possible claim that this decision was a good one, because they believe it will save their businesses billions of dollars a year. However, people often forget about the positive impacts that awards of money damages have on safety. For example, these judgments against egregious actions like the one perpetrated here often make it more likely that the company will implement policies that ensure that their drivers are operating company trucks in a safe and careful manner. Taking away some of the cost to Hamilton Meats reduces the company's incentive to put only the safest drivers on the road. Even if the court judgment is covered by insurance, reducing possible judgments also reduces the amount that Hamilton Meats pays for insurance. Either way, the cost to Hamilton Meats and other companies like it will decrease, and their incentive for ensuring that their drivers are alert and capable may decrease with it as a result of this ruling.

While the Howell case does place some limits on what plaintiffs can recover in California personal injury cases, injured parties can still recover their actual, out-of-pocket costs, as well as any costs for medical expenses that were paid by the victim's health insurance company. This is on top of other possible losses for things like lost wages, property damage, emotional distress, and many others. However, insurance companies for at-fault parties may now have more incentive to try and low-ball victims by not offering a fair and reasonable settlement. The tactics often used by companies in these situations make it vital for area victims to be represented by a San Diego personal injury attorney. If you or someone you know is caught in this situation be sure to protect your interests by talking with a legal professionals to ensure that you recover everything to which you are entitled.

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Every August the National Football League's pre-season activities begin and football fans across the United States come pouring back into stadiums to watch their favorite teams play. Dedicated fans will tell you that there is something different in the air during football season, and for many, it is their favorite time of the year.

Unfortunately, as California assault and battery attorneys know all too well, a few fans can really take their love for their favorite teams a little too seriously, especially at game time. Sometimes, the heckling and teasing that is part of nearly every live football game, from high school to the professional level, can get out of hand. Combine that overzealous support with a tailgate party where the beer is flowing freely, and you may have a very dangerous situation on your hands.

This is precisely what happened a couple weeks ago to three football fans who attended a pre-season exhibition game between the Oakland Raiders and the San Francisco 49ers. KTLA News recently reported on how, in three apparently unrelated incidents, two fans were shot in the stadium parking lot, and one fan was severely beaten in a stadium bathroom. Although details are not yet entirely clear, it appears that the reasons for these attacks were related to differences in which teams the fans and their attackers were supporting. Naturally, the mayors of San Francisco and Oakland quickly condemned these attacks, and stadium security will likely be stepped up in an effort to prevent similar incidents in the future. Public condemnation and better security in the future, however, are of little use to the three victims who were viciously attacked in a place where they should have been able to feel safe.

While criminal charges will likely be filed against those responsible for causing these injuries, the victims also have the option of filing a civil complaint against their attackers and all those who may have contribute to the incident. Under California civil law a battery occurs when an attacker physically contacts the victim in a harmful or offensive way, with the intention to harm or offend the victim, against the will of a victim, and in a way that a reasonable person would find harmful or offensive. For example, if a stranger trips on the sidewalk and crashes into you, this would not be a battery because the stranger had no intention to cause you harm or offense. On the other hand, an intentional shooting or beating definitely qualifies as a battery. The intention of the attacker is to cause harm in these cases, and a reasonable person would certainly find it harmful and offensive to be shot or beaten.

In cases like these, victims should contact a California injury attorney right away. Sometimes, liability will fall only on the person who actually committed the battery. However, in other situations, the owner of the premises on which a battery occurs can also be held liable for the injuries. This may be especially important if the identity of the attacker is not known. A San Diego injury lawyer can advise you on how best to proceed and against which defendants you are likely to have a successful claim. The circumstances of assault and battery can differ greatly, and often it is unclear whether a battery has been committed, especially for someone who is unfamiliar with all the nuances of California battery law. An attorney with expertise on what constitutes a battery can help you to determine whether you have a valid claim and against whom you may bring that claim.

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Most consumers in the United States are privileged to be able to walk into a supermarket of their choosing and select the items they want from the rows upon rows of food choices offered in nearly every grocery store in the nation. With the stringent regulations that apply to food distributors, customers can feel reasonably safe purchasing their food, and they do not typically worry about whether or not the food could harm them. However, local San Diego food poisoning attorneys know all too well how important it is to remember that the system is not foolproof, and unsafe food occasionally still slips through the cracks and onto the shelves of our grocery stores.

Food can become contaminated in a variety of different ways. For example, vegetables may be inadvertently grown in contaminated soil. Unsanitary conditions at food processing plants can also lead to bacteria content in food that is distributed to grocery stores. These unsanitary conditions can involve dirty machinery or work areas, rodent and insect infestation, and employees who fail to properly maintain their own hygiene.

Although buying organic products can be safer in some respects, it does not eliminate the risk of food contamination. For example, on August 5, 2011, Fresh & Easy Neighborhood Market, Inc. issued a recall for certain bags of its organic baby spinach. The recall came after the company discovered bacteria in its product that can lead to a disease called listeriosis. Listeriosis can cause illness in adults and children, but it is most harmful for pregnant women and their unborn children. Listeriosis can cause miscarriages, birth defects, premature delivery, and other health problems for the child. It can also cause serious infections for people with depressed immune systems, such as those with cancer or diabetes. Thus far, no illnesses have been reported in connection with the baby spinach, but the story demonstrates how, even in a country where food is regulated rather heavily by the government, contamination still does happen.

Those who are harmed by diseases caused by food contamination are not without any recourse. On the contrary, people who become ill as a result of eating such food can contact a California food poisoning lawyer to assess whether or not they have a claim against the food distributor or any other parties along the supply chain. In our area a San Diego food poisoning attorney can determine whether the distributor can be held responsible for paying the victim's medical bills, as well as other expenses that may arise as the result of the poisoning, such as lost wages from missing work or any necessary cleaning or sanitizing costs.

In addition to getting compensation for the victims, California food poisoning lawsuits can also help to shape future policies and, more importantly, to provide greater incentive to companies to ensure that the food that they produce and distribute is safe. Often, the expenses that companies must pay out to settle lawsuits or to satisfy judgments are the greatest incentives for those companies to work harder to make their products safe.

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Drivers, and most non-drivers, are familiar with the rules that govern the use of our roadways. For example, virtually everyone knows that drivers are required to stop at red lights and stop signs, signal before changing lanes, and yield to other drivers when merging into traffic. Most people also recognize the consequences of a failure to follow these rules, and anyone who has ever been a California car crash victim especially understands why such rules are so vital.

The traffic laws are designed with the express purpose of keeping motorists, pedestrians, and cyclists safe. When someone disobeys these laws, the results are often devastating. Such was the case for a woman who was severely injured in a crash that took place in Brawley, California. Ms. Archuleta was traveling at a speed of about 65 miles per hour when a truck driver failed to obey a “Yield” sign and entered her lane. Ms. Archuleta's vehicle collided with the truck, and she sustained injuries so severe that the once-active and energetic 78-year-old woman is now unable to do the things she loved to do or even to care for herself independently.

Ms. Archuleta did what everyone should do in such a situation: she talked to a California injury attorney. Her attorneys filed a lawsuit, alleging that the driver of the truck was responsible for the horrific injuries she sustained. As is often the case in California personal injury cases, her California car crash lawyers were able to reach an agreement with the attorneys for the truck driver. Because her injuries were so severe, they settled the case for $950,000. Much of that money will go towards paying the medical bills she incurred as a result of the crash.

If Ms. Archuleta had not called a personal injury lawyer, it is unlikely she would have received anything close to that amount. All too often, especially in cases involving particularly bad injuries, the insurance company for the driver who was at fault will call the injured person and try to get him or her to agree to settle the case. People are often tempted to take these settlements because it may sound like a lot of money and because they usually don't have the training to recognize how much their cases may be worth. Settling with the insurance company often leads to a situation where medical bills end up exceeding the amount that the insurance company paid to the injured party. Usually, an insurance company's offer to settle is an indication that the company is nervous, and the case is worth a good bit more than what is being offered.

If you are injured in a car accident, you should always speak to a personal injury attorney before making any decisions. Our San Diego car accident lawyer offers free consultations, which allow clients to determine their rights without incurring any legal fees. In addition, many a client will often not be charged a fee at all unless they are able to recover some money for their loss.

Remember, insurance companies are not interested in protecting your rights; they are interested in protecting their own wallets. Always take the time to sit down with an attorney and discuss your rights and any claims you may have. It is always a worthwhile investment of your time.

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Each year, San Diego County Animal Services investigates approximately 6,000 California dog bites are reported each year by local residents and visitors. These incidents can be costly—physically and financially. The average cost of a dog bite injury treated in a hospital emergency room is $274. Severe injuries can result in thousands of dollars in treatment and surgery costs, not to mention pain and suffering for victims.

This is a reality some San Diego dog bite victims know all too well. For example, a forty-year old man from Mountain View suffered severe injuries after a neighbor’s pit bull attacked him, biting him on the arm, side, and back. The attack on Paul “Mario” Todd, Jr., was the fourth dog attack in a recent spate of incidents in San Diego this summer. The victims also included a one-year-old in Chula Vista and a woman walking her dog in Grant Hill. Another victim, an elderly woman who was attacked by two pit bulls while collecting her morning newspaper, lost her leg and was also in danger of losing her arm.

In the U.S., approximately 4.7 million people are bitten by dogs each year and 800,000 of those bitten require medical treatment. In some states, the “one bite” or the “first bite free” rule prevails, meaning that a dog owner will not necessarily be civilly liable to the victim. Under the “first bite free” rule, a dog bite victim may have to prove that a dog is dangerous or vicious and that its owner kept the animal after knowing of the dog’s dangerousness or vicious nature before being able to recover for injuries.

In other words, states that follow the “one bite free” rule can leave some victims vulnerable. Even unprovoked attacks can leave dog bite victims without compensation for their personal injuries. It is often difficult, though not impossible, for victims to prove specific previous misconduct on the part of dog owners. Even if they can show all that is required to recover, it always requires more time and expense on the part of the victim before receiving compensation for their injuries.

Fortunately, under California’s strict liability dog bite statute there are no “free” bites. Our California personal injury lawyers know that the law protects dog bite victims by permitting them to recover for their injuries, regardless of a dog’s past bite history or viciousness. That means dog owners may have to pay for injuries their pets cause to others.

Continue reading "The First Bite Isn’t Free: California Law Provides Protection for Dog-Bite Victims" »

Doctors are some of the most well-respected members of our communities. They are usually highly trained, caring, and competent people. We can probably all think of a great doctor that helped us or a loved one get through a difficult period in our lives. Unfortunately, just like in any other profession or occupation, not all doctors are as competent and capable as we would like them to be. Sometimes, they make mistakes and commit medical malpractice. Unfortunately, new reports indicate that some area doctors make a lot of mistakes and the California medical board—the state agency that is supposed to make sure our doctors are competent—fails to take appropriate disciplinary action.

This is all according to a report released by the Washington D.C.-based public interest group, Public Citizen. The contents of the report should be troubling to all area residents who would like to avoid becoming a San Diego medical malpractice victim. The most significant findings of the report were that the California state medical board failed to file a disciplinary action against more than 700 physicians who were disciplined by hospitals for wrongdoing. Thirty-five percent of those physicians were repeat offenders. In addition, the report classified more than 102 doctors as being an "immediate threat to health or safety" of patients. Only 118 other doctors in the entire United States were given this label, meaning that California has almost half of all dangerous doctors.

The mistakes cited by the report were numerous. They include faulty diagnosis and treatment of patients, failing to remove medical devices and instruments from patients after surgery, and personal problems of the doctor interfering with his or her work.

According to the report, the reasons for this terrible state of affairs are obvious. First, the California review board lacks the funds it needs to go after doctors who deserve discipline. Second, the board has a slow rate of processing disciplining actions, ranking 35th in the nation on that measure. According to the report, it takes more than 400 days for the average disciplinary action to be investigated. In the meantime, doctors continue to practice, regardless of their competence level or the risk they pose to patients.

According to Public Citizen, the poor condition of doctor oversight is nothing new for California. In 2005, a report by the California Medical Board Enforcement Program made a series of recommendations to improve doctor oversight, most of which have not been implemented. The state has a very poor record with respect to disciplining its doctors, who will undoubtedly be left free to practice and commit potentially costly errors. Until the California medical board improves its oversight of doctor mistakes, it will be up to California medical malpractice attorneys to fill the gap and hold doctors accountable for the harm they cause patients when they make serious mistakes.

Continue reading "California Medical Malpractice Rarely Results in Discipline, Says Watchdog Organization" »

Many local residents have added a pet to their homes, with dogs increasing in popularity
across our area. Most families ensure that their animals do not pose risks to others and takes steps to prevent dog bites. However, even with precautions, San Diego dog bites continue to strike with surprisingly frequency. When that happens it is vital that the victims be compensated for the losses they suffer as a result of the accident.

In California, as in many other states, dog owners are strictly liable for the actions of their animals. This is true even if the animal had no previous history of bites and regardless of whether the owner was aware that the dog posed a bite risk. Strict liability is a legal principle that applies in injury cases like this and affects the requirements that must be met for a victim to recover for their losses following an injury.

In a regular “negligence” case a plaintiff must show that another person owed them a duty, and that they duty was breached causing injury. In those cases, therefore, a plaintiff must specifically show that the other person acted in an unreasonable way. Strict liability cases are a bit different. In these cases the plaintiff generally does not have to specifically show that the other person acted unreasonably. In these cases, the other party is required as a matter of law to pay for the losses caused by the conduct whether reasonably tried to prevent the bite or not. Therefore, because California dog bite lawsuits are considered strict liability cases, the individual who is bitten can almost always recover damages for the losses they suffer. By providing for this form of remedy for dog bite victims, the state has logically decided that paying for a dog bite is a responsibility of a dog owner, no matter what the circumstances.

The risk of dog bites continues to affect many local decisions in our area. For example, the Imperial Beach Patch reported late last month on disagreement about a proposed leash-free dog beach. Some opposed to the proposal told stories about encounters with dangerous dogs on the beach leading to broken bones, bruises, and bites—often caused by irresponsible dog owners. Opponents to the proposal explained that the San Diego County Department of Animal Services reports that about 2,700 San Diego dog bites strike each year. They argue that unleashing animals on a popular beach area would create too much risk.

However, others argue that the owners of the thousands of licensed dogs and their animals in the area need a place to interact without the need to be on a leash. The dog beach proponents suggest that the animals are rarely aggressive when at a dog beach playing with one another. They believe that a trial period should at least be allowed so that the feasibility of the beach option can be evaluated.

Continue reading "San Diego County Dog Bite Risk Influences Dog Beach Debate" »

All patients place immense trust in their medical professional when they visit them for help identifying or treating a medical problem. With that trust comes a responsibility on the part of the medical staff members—from doctors and dentists to nurses and nurse’s assistants—to conduct themselves in a reasonably prudent manner under the circumstances. Medical patients cannot always expect perfection, because medical conditions always involve a certain level of risk. However, patients do have a right to expect that the professional will perform just as other reasonable medical employees would. When a doctor in our area fails to provide that level of care, then the victims need to consider filing a San Diego medical malpractice lawsuit.

Depending on the specific situation there are different rules that apply when it comes to California medical malpractice cases. Various legal doctrines exist that dictate when lawsuits have to be filed, where the case must be tried, and who can file a lawsuit (i.e. a parent on behalf of an injured child). Of course, understanding and identifying these issues in our area is a crucial role played by a San Diego medical malpractice attorney. A lawyer familiar with this area of the law should be able to listen to the facts of a new client’s situation and shortly thereafter develop a good understanding of the how the legal rules are applicable in that particular case.

The attorney can explain if there are any special doctrines that apply. For example, the “Feres Doctrine” is a well-known legal rule in the medical malpractice field which many observers find to be misguided. The 60-year old legal precedent holds that the U.S. government cannot be held liable for medical malpractice committed against an armed forces service member while on duty. If the doctrine is applicable in a specific case, an attorney should explain that to a potential client. However, it is also vital for the nuances of the rule to be understood which may allow victims to recover. In this case, while the Feres Doctrine bars suits from service members suing for medical negligence, military dependents are allowed to proceed with these suits. Therefore, when the husband or wife of a service member is harmed by the mistakes of a military medical employee they can file a civil suit and seek compensation for their losses.

That is exactly what happened in a case which was recently upheld by a state appellate court. The Stars and Stripes reported this week on the California medical malpractice case in which the wife of an Air Force Master Sergeant won a $7.5 million jury verdict after Air Force medical staff members failed to diagnose her herniated spinal disk. The victim had sought treatment for numbness in her spine and legs for several weeks at the air base clinic. However, the nurse and medical assistance failed to conduct even basic medical examinations which would have uncovered the problem. As a result of the delay she suffered permanent nerve damage.

All victims of poor medical care and their families should take the time to visit with legal professionals to share their story and learn about their options. Our San Diego medical malpractice attorney has worked with many victims in this area who were harmed because they did not receive the medical care to which they were entitled. By taking the time to visit our offices, all victims can feel confident that they at least took the time to learn about the choices in front of them before determining the appropriate next step in their situation.

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The most damaging accidents on our area roadways are often those involving large semi-trailers. San Diego truck accidents continue to take the lives of many area residents. Unfortunately, a large number of these tragedies are caused by negligent truck driving and could have been prevented if the truck driver had exhibited proper care. Just this week the Sierra Vista Herald reported on yet another tragic San Diego truck crash. This latest accident took the life of a 65-year old pickup truck driver and a 2-year old girl. Four other people (including three children) were also injured in the crash.

The accident struck early Tuesday afternoon on the eastbound lanes of Interstate 10 just east of Wilcox. A truck driver was traveling on the highway when he lost control of his vehicle. The truck eventually flipped over on its side, blocking all eastbound traffic lanes on the interstate. It was only a matter of time before an unsuspecting on-coming vehicle approached the accident site. The first vehicle to come up upon the overturned truck was a 2001 Ford pickup truck. The driver was unable to account for the stopped semi, and the pickup collided with the rear of the trailer.

There were four passengers in the pickup truck as well as a driver. The youngest passenger, a two-year old girl named Mercedes Young, was killed in the collision. Also killed was 65-year old Isaac High. Four other members of the Young family were injured including three children aged 4, 7, and 8. It remains unclear what led the truck driver to lose control of the machine. It is important that a thorough investigation be conducted to understand what happened and figure out if the accident could have been prevented.

There are potential deadly consequences every time that a driver loses control of a large tractor-trailer—making it incumbent that these drivers abide by safe driving practices any time that they are behind the wheel. Our San Diego truck accident lawyer is well versed in the requirements for safe driving and the ways that the legal system protects those injured by negligent driving. All those who travel on our area roadways are required to exercise reasonable care so that others are not harmed in a California car accident. This includes driving at safe speeds for road conditions, staying within one’s lane, and obeying all traffic signals.

In addition to these basic rules, truck drivers are often obligated to follow special rules to ensure that their conduct does not harm others. For example, truck drivers must ensure that they do not fall victim to driving fatigue. Truck drivers are usually behind the wheel for much longer stretches than the average driver. As a result they are prone to developing driving fatigue which causes deterioration in their reaction times and often leads to deadly accidents. Consequently, laws have been passed that mandate the maximum amount of time that a trucker can drive in a 24-hour period as well as the maximum amount of time they can go without a break. In this way, the law seeks to be proactive in minimizing truck driving risks before they lead to accidents.

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