San Diego Injury Law Blog

The most frequently asked question we get as personal injury lawyers is, what are my pain and suffering damages worth? There is never an easy answer to that question, because it depends on so many different factors. To determine what they’re worth, it’s helpful to first discuss what pain and suffering damages are.

First, they’re not really called “pain and suffering damages.” Many lawyers refer to them as general damages, or non-economic damages, because they tend to refer to those damages above and beyond things like medical bills and lost income. Generally speaking, damages for “pain and suffering” are designed to compensate the personal injury victim for all physical, mental, and emotional suffering and/or distress that arises from an incident causing bodily injury. These are the damages that compensate for the “impact” the injury has had on a person’s life.

While there is no legal definition for “pain,” it is generally described as the nerve impulses sent to the brain to express some form of distress. How the pain is compensated usually depends on the nature, extent, and duration of the pain, and the injured party’s ability to characterize the pain. Medical records, and sometimes the testimony of a doctor, are frequently used to support an injured person’s claims of pain, and it is always helpful to have objective medical data to support claims of pain.

The actual “suffering” is usually described as the mental component associated with the pain, although not always. In addition to the obvious emotional component associated with actual pain, suffering is also characterized as shock, anxiety, worry, embarrassment, disfigurement, grief, fear, and the loss of enjoyment of life.

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One of the most maligned jury verdicts in United States history is the McDonald's coffee case. You can approach 100 people on the street and ask if they've heard of it, and 95 will have heard of it, and a majority of those will have a negative opinion. The case has been used as an example of how our jury system fails us, and how lawsuits are nothing more than lotteries, with frivolous claimants hoping to hit it big.

But what most people don't know is that the true case of Stella Liebeck, the plaintiff in the McDonald's coffee case has a very compelling story. Now filmmaker Susan Saladoff is trying to complete a documentary about the case, and to get the true facts out there.

For example, most people are not aware that:

• Ms. Liebeck was not driving at the time of spill, but was a passenger.

• After the spill, a vascular surgeon determined that Ms. Liebeck suffered third-degree burns over 6 percent of her body, on the area of her inner thighs, perineum, buttocks, and genital and groin areas. She required skin grafting surgery.

• She offered to settle her case for $20,000, but McDonald's rejected it.

• During discovery, McDonalds produced documents showing it had received more than 700 claims by people burned by its coffee between 1982 and 1992.

According to the website, Hot Coffee the movie will reveal what really happened to Stella Liebeck, and explore "how and why the case garnered so much media attention, who funded the effort and to what end. After seeing this documentary film, you will decide who really profited from spilling hot coffee."

Here's a trailer for the movie, which is currently raising funds to complete.

Source: HotCoffeeTheMovie.com

The San Diego accident and injury attorneys at Walton Law Firm represent individuals who have been injured in all types of accidents, including auto accidents, worksite injuries, nursing home neglect, food poisoning, pedestrian injuries, construction accidents, property injuries, and malpractice matters. Call (760 571-5500 for a free and confidential.

Tri-City Medical Center and Pomerado Hospital have been fined by the California Department of Public Health for medical mistakes that caused patient injury within the last year. A fine of $50,000 was assessed against each entity.

At Tri-City, a patient was seriously burned when a cauterization machine ignited oxygen in a breathing mask and causing a fire. According to reports, the man was hospitalized for breathing difficulties, and then underwent a procedure to insert a tracheotomy when the fire-incident occurred.

The Pomerado Hospital incident involved a psychiatric patient who suffered brain damage when he tipped over backwards in a reclining chair, and struck his head on the floor. The man was apparently noted to be a very high fall risk, but, according to the State, the hospital failed to take adequate precautions to prevent the incident.

Both hospitals told the North County Times that they will appeal the fines.

Source: North County Times

The injury and malpractice lawyers at Walton Law Firm represent individuals who have been injured in all types of accidents, including auto accidents, worksite injuries, pedestrian injuries, construction accidents, property injuries, and malpractice matters. Call (760) 571-5500 for a free consultation.

A big rig truck crashed on eastbound Interstate 8 last night, claiming the lives of the driver and his passenger. According to witnesses, the truck was traveling down a fairly steep decline under the speed limit when, for reasons unknown, drifted to the right shoulder and slammed into the dirt slope on the side of the road. The truck burst into flames upon impact, killing the occupants immediately.

The cause of the accident is currently under investigation, and it is still unclear if the accident was caused by driver negligence or whether the truck malfunctioned in some way. Anyone with information about the crash is encouraged to contact the Imperial County office of the California Highway Patrol.

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Source: San Diego Union Tribune

The San Diego truck accident lawyers at the Walton Law Firm represent individuals and families who have been impacted in all types of trucking accidents. Call (760) 607-1325 for a free consultation.

A wrongful death lawsuit has been filed in San Diego Superior Court - El Cajon by the family of Thomas Varshock, a 52-year-old Potrero resident who burned to death during the 2007 Harris wildfire. The lawsuit alleges that state firefighters were negligent in handling of the fire, and that their negligence caused the death of Varshock, and injuries to Varshock's 15-year-old son, who was badly burned.

The lawsuit addresses the sequence of events that took place on a road near the Varshock home on the first day of the fire. Varshock and his son were driving away from their home to flee the fire when they encountered four firefighters. There was a discussion between Varshock and firefighters, then the Varshocks climbed aboard the truck with the firefighters, who drove them back to the Varshock home. Upon arrival, the fire fighters immediately started fighting spot fires, but were quickly overcome by flames that engulfed both the Varshock home, and the fire truck that was parked nearby. The fire fighters were also badly burned.

The California Department of Forestry (or Cal Fire), the named defendant, disputes this rendition of facts. It says that the Varshocks insisted on returning to their home, and only ended up in the fire truck after the Varshock's vehicle stalled.

Obviously there is a huge difference in the story, which will likely be resolved by the lawsuit. Cal Fire has a number of legal defenses, including governmental immunities. If the family prevails, it will be entitled to money damages for the loss of love, society, companionship of Varshock, as well has the financial support. The son has his own separate case for his burn injuries.

Source: The San Diego Union Tribune

The accident and injury attorneys at the Walton Law Firm represent individuals and families who have been injured in all types of accidents, including car accidents, motorcycle accidents, property injuries, and other negligence related injuries. Call (760) 607-1325 for a free consultation.

The medical spa (or medi-spa) industry is booming, but the growth hasn't been all good. With more customers seeking beauty treatments through medical treatments (such as laser hair and scar removal) more and more of these "patients" are suing for medical malpractice.

Lawyers who represent medical malpractice plaintiffs believe there is going to be a huge increase in malpractice cases arising from medi-spa care. One reason is the sheer number of these spas. In 2004 there were only 471 in the U.S., now there are almost two thousand. Another is that these medical facilities are lightly regulated.

For example, in Arizona, a woman recently sued Timeless Laser & Skin in Maricopa County alleging she was "severely burned and scarred" during laser hair removal procedure. And in another Arizona case, a man sued Neos Medspa over scarring, "extreme pain" and burning from a laser hair removal procedure done on his shoulders and back.

The plaintiff's bar is starting to see more and more of these cases.

"I believe we're seeing the beginning of this industry being targeted," san Jill Goldsmith, a Phoenix lawyer. "Both mom-and-pops and chain companies have sprung up around the country in the past few years, creating a new billion-dollar industry and litigation hot spot."

As expected, the spa industry has a different view. Lynne McNees, the president of an international spa trade organization says that medi-spas adhere to established policies and procedures. Patients should bear some of the responsibility. "It is important to be an advocate for yourself and do your homework before visiting any spa," she said.

Source: Law.com / The National Law Journal

The medical malpractice lawyers at Walton Law Firm LLP represent individuals who have been victimized by medical negligence and other negligence related accidents. Cases are taken on a contingency fee, and all consultations are free and confidential.

Anthony Beninati was attending the iconic Burning Man Festival, when he fell into the fire at the annual ritual of actually burning the “Burning Man” was performed. Beninati suffered burns in the incident, hired a lawyer, and sued the Burning Man promoter for personal injury damages, alleging it was negligent in the operation of the festival.

The trial court would have none of it, and dismissed the case on summary judgment. Beninati then appealed. Yesterday, California’s Court of Appeal, First District, affirmed the trial court, holding that the promoter owed no duty of care to Beninati, and that Beninati was barred by the doctrine of primary assumption of risk.

The facts are actually pretty interesting. Beninati, who is a college educated man employed in real estate, was attending the festival for the third time. In his deposition, he testified that he attended to get away from his workaholic life, and get together with other people who shared his interests in art and spirituality. He planned on attending with his friend, who died in a motorcycle accident six weeks before the festival. Beninati decided to attend alone, and planned to place a photo of his deceased friend in the bonfire.

That’s when things went wrong.

As the fire died down, and Beninati slowly approached it, stopping at a spot where fire was on both sides of him. He threw his friend’s photo on the fire and watched it burn. He then took a few steps forward and tripped on something “solid," falling into the fire and badly burning his hands.

The appellate court considered all the facts, then ruled (correctly probably) that Beninati assumed the risks of what he was doing:

Once much of the material had burned, and the conflagration had subsided but was still actively burning, Beninati and others walked into the fire. At that point, the risk of stumbling on buried fire debris, including the cables which necessarily had collapsed along with the sculpture, was an obvious and inherent one. Thus, the risk of falling and being burned by the flames or hot ash was inherent, obvious, and necessary to the event, and Beninati assumed such risk.

To read the entire opinion click here. (.pdf)

The San Diego personal injury lawyers at Walton Law Firm LLP represent individuals injured in all types of accidents, including car accidents, motorcycle accidents, construction accident, slip and falls, dog bites, and malpractice matters. Call (790) 607-1325 for a free consultation, or fill out an online contact form.

An Oceanside construction worker suffered serious burn injuries yesterday when a can filled with gasoline exploded as he was attempting to fill the tank of a chainsaw. According to reports, the 35-year-old worker suffered severe burns over 50% of his legs and was taken by helicopter to UCSD Medical Center.

The incident occurred at Martin Luther King Jr. Park on Mesa Drive where a construction crew is building a skate park. It appears that fumes from the chainsaw ignited fumes coming from the gas can. Cal-OSHA is investigating.

Safely filling a chainsaw usually requires using an approved container, depending the brand of the saw. Such a container would limit the amount of fumes or spillage that could occur when filling the tank, thus limiting the chance of ignition. That is a questions OSHA will no doubt answer.

Walton Law Firm LLP has represented burn victims in product liability cases involving explosion, the most recent involving an accident where a propane tank exploded during refilling. Burn injuries, of course, are some of the most serious and damaging injures a human can experience, and require extensive and long-term medical care.