Archive for July, 2010

Tide Turns Against Medical Malpractice Caps

July 27, 2010

by Sara B. Morgan

A Georgia trial judge recently struck down that state’s limits on the amount of pain and suffering damages a plaintiff can receive in a medical malpractice case. Fulton County State Court Judge Diane E. Bessen declared the caps violated Georgia’s State Constitution, specifically the provisions guaranteeing the right to a jury trial, separation of powers, and equal protection.

Currently, Georgia limits pain and suffering, known as noneconomic damages, to a maximum of $350,000 against doctors regardless of the injuries sustained by plaintiffs as a result of medical negligence. California, by comparison, limits those recoveries to a mere $250,000. Even where a jury determines the plaintiff is entitled to more than the limit, the judge is mandated by law to reduce that award. Judge Bessen found the caps to encroach upon the jury’s power to determine the amount of damages that would fairly compensate an injured person, who in turn is denied the opportunity for judicial review of the reduction.

Most importantly, Judge Bessen declared it a “complete contradiction to state that the overall quality of healthcare would be improved by shielding negligent health care providers from liability,” citing studies that correlate the existence of these damage limits with an increase in insurance rates.

Legal authorities in California are hopefully following this Georgia case closely, since California is another state where people injured by medical negligence have their damages reduced regardless of the amount a jury determines is appropriate compensation. California’s cap specifically applies to compensation for pain, suffering, inconvenience, physical impairment, and disfigurement, and limits recovery to only $250,000, even where someone has died.

The caps in California have been declared constitutional, based on the concept that high medical malpractice premiums adversely affect the quality of medical services provided to residents of the state. However, the effectiveness of the caps as a measure to improve the quality of medical services is highly debated, and rather unlikely. First, in light of the sweeping health care reform efforts taking place on the national scale, it can hardly be argued that California’s caps have resulted in the improvement of medical services. Secondly, the cap amount, set back in 1975, has long since surpassed its expiration date. And yet, 35 years later, Californians injured by negligent medical providers are subjected to the same caps enacted when Gerald Ford was President!

We can only hope that the developments in Georgia law serve as a catalyst to review the limits in California and to determine the best method available to improve the quality of care and protection afforded California residents. The time has come to stop protecting negligent medical providers, and start protecting Californians.

Insurance Adjuster Wants a Recorded Statement

July 16, 2010

by Jeffrey A. Boyd

After a car accident or truck accident, a common question our office hears is whether an accident victim should give a recorded statement to the other driver’s insurance company. Our advice is that the victim should politely decline to give a recorded statement.

The insurance company will place you under a lot of pressure to give a recorded statement and they must ask before they can record you.

There is no legal obligation to give a recorded statement, so why does an insurance company want one? The insurance company wants to document, as early as possible, and likely even before you are aware of the complete extent of your injuries, how the accident happened and what your injuries are. Remember, it is the job of the other driver’s insurance company to minimize compensation of your injuries. They will blame the accident on everything but their own driver. They will blame your injuries on anything but the accident. So no matter how polite the insurance adjuster is, they are trying to find ways to defeat or minimize your claim, and it is in your best interest to politely decline.

Your insurance company may ask for a recorded statement. You have an obligation to cooperate with your insurance company. Your statement to them will probably not be disclosed to the other driver’s company.

The Hawthorne Court: Civil Litigation Goes Back to School

July 2, 2010

By Jean-Simon Serrano

Many civil trials in Riverside County are presently being held in the Hawthorne Court – a recommissioned elementary school in Riverside.  In the past two months, my office has had the opportunity to try no less than three cases in this court.  Though it is, for all intents and purposes, a civil courthouse, there are a few peculiarities to having a civil trial in a former elementary school that bear mentioning.

Space is at a Premium

While the courtrooms are decorated and configured as such, there will be times when it is difficult to forget that you are in a rearranged classroom.  If your clients wish to have family members present, or if you are working with an insurance adjuster who wants to tag along, you should know that seating is extremely limited.  Only two persons can sit at each counsel table.  In one of my trials at Hawthorne, I was representing three clients – one client could accompany me at the counsel table but the other two had to sit at the back of the classroom (where there is room for only one row of hardback, uncomfortable, metal chairs).

It is often recommended that an attorney familiarize themselves with the courtroom before trial – this is especially true of Hawthorne, where it should take about fifteen seconds to do so.  A cursory inspection of the courtrooms will reveal that the witness stand is on wheels and is located inside the well, between the judge and counsels’ tables.  While portable in nature, the stand is difficult to configure such that witnesses can be simultaneously facing both the jury and anything projected via the overhead projector.  Projected images are almost always directly behind the witness stand, and some jurors complain they can’t see the witness at all because the court reporter is obstructing their view.

What you may not notice upon initial inspection of Hawthorne is that train tracks run directly behind the school.  Be prepared to pause hourly as freight trains blare their horns and roar by the building.

There are no judges’ chambers per se.  Rather, discussions that are regularly heard in chambers or at side bar, are likely to be heard outdoors, on a walkway that runs alongside the building between the classrooms.  Naturally, the court reporter is not present as it would be too cumbersome to bring the machine, etc., outside.

The Jury

It has been my experience, and perhaps this varies depending on the judge, that jury selection is done in the courtroom and not in a jury assembly room.  This will probably have little effect on your voir dire; however, it could be a surprise if you are not expecting it.  Additionally, I got the impression that counsel, and jurors alike, were taken aback by the school-like atmosphere of the court; and we all had to take pains to inform the jury that, while lacking the hardwood, marble, and tall ceilings of other courtrooms, matters heard in the Hawthorne Court were no less serious or important than matters heard in more aesthetically impressive forums.  Unfortunately, I am doubtful as to the effectiveness of this admonition.

Limited Privacy

Be mindful that, when court is not in session, the jury will be mulling about the area just outside the courtroom.  The “jury assembly” room and courtrooms are separated by a small courtyard, with picnic tables in between.  It is in this courtyard where the jurors usually gather during breaks and before court.  It is through this same courtyard that you, your clients, and your witnesses will have to walk should you wish to use the children’s restrooms, also shared with the jurors.  If you wish to talk to your clients or meet with witnesses, you will have to walk behind one of the various buildings or stand in the parking lot.  Likewise, there is no area designated for witnesses to wait prior to being called.  A jury selection room may be available but this, again, opens onto that same courtyard where the jury is waiting.  Prepare your witnesses for the idea that they will be testifying at an elementary school and perhaps have them wait in the parking lot until you are ready for them to be called.  They will likely be shocked at the courtroom configuration and witness stand.

With respect to parking, it is important to note there are essentially two parking areas.  You will want to park in front of the school, near the area where school buses picked up and dropped off children in years past.  You will likely be instructed to have your clients and witnesses do the same.  This is because the jurors park in the dirt lot on the east side of the school grounds.  Having your clients and witnesses park in front of the school will keep contact with the jury to a minimum.

Suggestions for Improvement.

I have spoken with several attorneys about their experiences at the Hawthorne Court.  Despite the negativity of their responses, all were mostly tolerant of their experiences, and each had similar suggestions as to ways in which the Court could be improved.  These were:

Larger Courtrooms.

Many of the attorneys who had been in the judges’ offices adjacent to the courtrooms had noticed that these offices are significantly larger than the courtrooms.  It appears the offices were enlarged by removing the wall along the back of the classroom and extending the offices into the other side of the building.  Similarly, extending the courtrooms in this fashion would yield courtrooms double the present size and probably make them adequate.  They are not adequate now.  As a (very) temporary approach, they were tolerable.  It is time to make them at least adequate.

Space to Meet with Clients and/or Witnesses.

This was probably the most common criticism.  Again, there is no place to meet with clients or witnesses out of the jury’s view.  A simple room provided for this purpose, away from jurors’ and others’ prying eyes and ears, would be greatly appreciated.

Area for Preparation/Research.

Several attorneys indicated they wished to have facilities available for last minute preparation or research – especially during lunch.  Currently, there is no place to do this other than at picnic benches with the jurors or in your car.  Some room(s) should be provided, perhaps with some internet access, such that preparation, communications with the office, or legal research could be conducted.  Such a room is a small request and should be a mandatory consideration.

The Temporary Nature of the Court Should be Reassessed.

Every courthouse has its idiosyncrasies, and I intend this article not to highlight only the shortfalls of the Hawthorne Court.  When the court was opened in January 2008, it was intended as a temporary (six month) solution to the judicial backlog in this county.  Now, more than two and a half years later, the temporary nature of court is questionable and the shortfalls are increasingly difficult to overlook.  This is not to speak ill of the court staff – whom were all very accommodating and extremely professional.  Clearly, we still need the Hawthorne Court to help alleviate the civil trial backlog in Riverside; however, permanent changes to the court are needed to make adequate this “temporary” solution.