Archive for November, 2011

Commitment to Service: Orange County’s High School Mock Trial Competition

November 28, 2011

By Sara B. Morgan, Esq.

I recently had the pleasure of observing (and scoring) a mock trial competition in Orange County. That evening, myself and the other legal professionals, judges, and volunteers rallied at the end of our long day to kick off the opening round of the 31st Annual Orange County High School Mock Trial Competition, organized by the Constitutional Rights Foundation – Orange County and held at the Civil Justice Center of Orange County Superior Court, located in downtown Santa Ana.

Being my first foray into such competitions, I was uncertain what to expect, but the gracious judge and attorney scorer, both well-seasoned volunteers, took me under their wings and guided myself (and the student teams) through the evening.

At the conclusion, to my sincere surprise and delight, the students eagerly rushed forward to inquire of the legal professionals for tips, pointers, critiques, suggestions, and the like. Their enthusiasm and drive were more energizing than a doppio espresso macchiato, even at 8:00 p.m.

As a former President of the State Bar of California, my employer, James Otto Heiting of Heiting & Irwin in Riverside, shares my strong commitment to public service, and was generous enough to donate our time to this special event. The competition is presently in the third round but still in desperate need of volunteers. If you, or any one you know are able to volunteer some time, I encourage you to contact the Constitutional Rights Foundation – Orange County with inquiries.

What Factors Determine Noneconomic Damages in Personal Injury Cases?

November 23, 2011

Recently, I was asked by a reporter, “what factors determine noneconomic damages in personal injury cases?” 

Noneconomic damages are individualized and not subject to formula and standardization, especially for larger cases.  Damages are dependent on the circumstances and apparent motivations of the individuals involved.  The jury will evaluate these factors in developing their impressions as to the amounts to award to measure what they feel is fair compensation for the hell and the losses one has, and will, go through.

 Juries are made up of a group of people with differing experiences, opinions, and motivations.  They bring to the jury room all those different points of view.  They have been impressed, however, with an exceptionally large verdict, with the tremendous burden and damage placed on the plaintiff(s), along with, probably, the greatly wrongful acts and omissions of the defendant(s).  They didn’t like what happened; and they are trying to make a statement as to what they think is fair.

 In cases that end up with small awards, many times the jury is unimpressed with the attitude of the plaintiff (he doesn’t really want to go back to work, even though he says he does, etc.); and they come into the jury box with the well-known publicity of verdicts being too high, insurance costing too much, and a substantial verdict will raise insurance rates even higher;  plaintiffs are just out to “hit the lottery;” and all the other false PR that has been done by insurance companies over the years to keep verdicts low.  The essence though, is the impression jurors have of the plaintiff and whether the PR can be turned around by the evidence and the people in the courtroom.  Are they trying? Are they doing their best?  Do I believe (in) the plaintiff?

Hopefully, a connection develops between the plaintiff and the jury.  The jury believes the plaintiff and believes in the plaintiff.  The damages are horrendous and can’t be reversed.  There is no amount of money that could compensate someone for having this kind of existence after having such promise and being worthy of a “sky’s the limit” type of life.  The plaintiff’s life has gone from one of “joie the vivre” to a daily torture at the gates of Hell.  As Dante put it, “All ye who enter here abandon all hope.”

That one person with an identical injury may be awarded a greater amount than another is a product of who that person is and how that person and their lawyer connect with the jury.  It is the same as any movie you watch – you root for the underdog, the hero, the one who deserves to win.  Their loss becomes your loss.  Their defeat, your defeat.

The Law Offices of Heiting & Irwin specialize in plaintiffs’ personal injury cases.

RIGHT TO EMERGENCY MEDICAL CARE

November 10, 2011

by Dennis R. Stout, Esq.

Regardless of your insurance status, you are eligible to receive emergency medical care within the State of California. You have the right to receive emergency care at any licensed facility with an emergency room. You have the right to be treated until your emergency medical condition is stabilized when you go to a hospital emergency room. You have the right to be informed by the hospital of your right to receive emergency services, without regard to your ability to pay, prior to being transferred or discharged from that facility. You have a right not be transferred from an emergency care facility against your will.

These rights are important to know if you ever find yourself in a hospital emergency room. No matter of your insurance status, California law strictly regulates the ability of all licensed health care facilities with emergency rooms. The Emergency Medical Treatment and Active Labor Act regulations also apply to all hospitals that participate in the medicare program.

Under California law, your health plan must reimburse any doctor who performs any emergency services that you receive to stabilized you. The only time that a plan is not required to pay for your emergency health care services is when it determines that you did not require emergency services, and that you should have known that an emergency did not exist. Hospitals are also required to post these rights with respect to the emergency room and your treatment options.

If you have complaints regarding substandard emergency medical care and treatment, or treatment provided by physicians of any other specialty, please contact the Law Offices of Heiting & Irwin for a free initial consultation. We prosecute medical negligence claims, as well as other injury actions, confidently and aggressively on behalf of our clients.

Injuries to Pets – Accountability for Intentional Harm to Animals

November 7, 2011

by Sara B. Morgan, Esq.

The matter of Kimes v. Grosser deals with a cat owner’s ability to sue for vet bills to keep his cat, Pumkin, alive after being shot by a neighbor.  Kimes v. Grosser (2011) 195 Cal. App. 4th 1556.  The Plaintiff, Kevin Kimes, adopted a stray cat, who he named Pumkin. While perched on a fence along Kimes’s property, Pumkin was shot with a pellet gun by a neighbor, the defendant in the case. Mr. Kimes spent $6,000 on emergency surgery to save Pumkin’s life, and an additional $30,000 to care for Pumkin thereafter. Mr. Kimes sued his neighbor to recover these costs, and for punitive damages.  The Court held that Mr. Kimes could recover the costs of Pumkin’s care resulting from the injury if the costs were found to be reasonable and necessary, and punitive damages if the injury is found to be intentional.

The Court’s holding, however, was quite limited, establishing only that a plaintiff may present evidence of the bills incurred to save the cat’s life. It does not establish that the vet bills are necessarily recoverable.

A jury (or other finder of fact) must still say the amounts spent to save the cat’s life were reasonable and necessary. Civil Code, Section 3333. What fits within this definition is likely to vary from jury to jury, depending on the attitudes and experiences of the individual jurors. For example, a juror making minimum wage as a retail clerk may find it unreasonable to spend $36,000 to save cat’s life, let alone a stray cat, while an “animal lover” like myself may believe that no price can be put on the life of a pet. Additionally, Defendants are still entitled to present evidence to show why the costs were unreasonable and unnecessary under the circumstances.

This case changes nothing for folks who are unable to spend large amounts of money to save their pet’s life, and nurse it back to health. Especially in these difficult financial times, a cash-strapped family is likely unable to afford $6,000 of emergency veterinary care, particularly where it required $30,000 of follow-up care, and would be faced with the horrible prospect of having to put the animal down. In that situation, the family would gain no benefit from this case holding, as they would have no bills to present other than for euthanasia. The demonstrable damages would be minimal only, and the family would in turn have difficulty finding an attorney to represent them on such a small case.

Perhaps in the future, in light of this case and other advances in areas of animal rights and animal owner rights, veterinarians would provide treatment on a lien basis, as do medical providers in other personal injury cases. This type of lien arrangement might allow pet owners access to the emergency and other veterinarian treatment necessary to save their pets, while enabling them to pay from the proceeds of their claim or case. However, until such a time, most pet owners in this predicament may be left with only their memories.

The Howell Decision: Is it Worse for Plaintiffs than MICRA?

November 4, 2011

By Jean-Simon Serrano

The Medical Injury Compensation Reform Act (MICRA) was passed in 1975 and limits non-economic damages (pain, suffering and death of a loved one) in California medical malpractice cases to $250,000.00. Prior to December 1975, juries were free to weigh all evidence and award an amount of non-economic damages appropriate for the injury to the victim.

The $250,000.00 cap on non-economic damages has never been re-evaluated since its imposition in 1975 and, due to inflation, is now less than $70,000 in 1975 dollars. As if this wasn’t outrageous enough on its own, MICRA also served to alter the collateral source rule.

“Under the traditional collateral source rule, a jury, in calculating a plaintiff’s damages in a tort action, does not take into consideration benefits, such as medical insurance or disability payments, which the plaintiff has received from sources other than the defendant, i.e., collateral sources, to cover losses resulting from the injury. Cal. Civ. Code § 3333.1 [MICRA] alters this rule in medical malpractice cases. Under § 3333.1(a), a medical malpractice defendant is permitted to introduce evidence of such collateral source benefits received by or payable to the plaintiff; when a defendant chooses to introduce such evidence, the plaintiff may introduce evidence of the amounts he has paid, in insurance premiums, for example, to secure the benefits. Although § 3333.1(a), does not specify how the jury should use such evidence, the legislature apparently assumed that in most cases the jury would set plaintiff’s damages at a lower level because of its awareness of plaintiff’s net collateral source benefits. “ Fein v. Permanente Medical Group, (1985) 38 Cal. 3d 137, 164-165

Thus, MICRA served to both severely limit the non-economic damages recoverable by plaintiffs in medical malpractices cases and limit the amounts recovered by plaintiffs whom were responsible enough to have procured insurance to guard against losses. Fortunately, MICRA allows plaintiffs who had health insurance to recover the costs incurred in procuring such a benefit, in the form of amounts paid in insurance premiums.

Recently, the California Supreme Court has issued another blow to the collateral source rule and to responsible plaintiffs. In Howell v. Hamilton Meats and Provisions, Inc., (2011) 52 Cal. 4th 541, the Court held that a plaintiff could recover as damages for her past medical expenses no more than her medical providers had accepted as payment in full from plaintiff and her health insurer.

Unlike MICRA, which permits plaintiffs to introduce evidence regarding expenses incurred in procuring their insurance, plaintiffs in non-medical malpractice personal injury cases receive no such benefit. Thus, under Howell (supra), defendants receive the benefit of plaintiff’s thrift in being liable for greatly reduced medical expenses without having to reimburse plaintiffs for the (often substantial) costs of procuring such a benefit.

As it relates to the effect on the collateral source rule, the recent Howell (supra) ruling is potentially more damaging to plaintiffs than MICRA.

Under MICRA, a perpetrator of medical malpractice receives the benefit of lower medical damages if the victim had health insurance; however, he must reimburse the victim her costs of procuring such insurance.

Under Howell, one causing injuries to others receives the benefit of lower medical damages if the victim had health insurance and, as an added bonus, does not have to reimburse the victim of procuring such insurance.

Sadly, Howell is a win-win for those causing injuries to others in California.

We, at Heiting & Irwin specialize in personal injury cases and are on the cutting edge of personal injury law in California.  While this decision is upsetting, we are undeterred in making sure our clients are fully compensated for their injuries.