Posts Tagged ‘pain and suffering’

Five Things To Do After an Accident

July 9, 2012

Should you have the misfortune of being involved in an auto accident, it is important that you gather information and undertake a few responsibilities.

These are the most important steps to take following a collision. Click here for a useful form that you can keep in your vehicle. This form will help you gather important information at the scene of the accident.

1.         Obtain the information listed on our form:

Name, address, telephone number, driver’s license number of all drivers.

Insurance information from all the other drivers (Ins. co. name, telephone number and policy number).

License plate number and (VIN) for all other vehicles.

Name, phone number and address of any eyewitness to the collision.

2.         Report the accident:

immediately to the police and cooperate with them in preparing an accident report. If no police are available to respond to the scene, consider contacting the local police agency to determine if you can complete a report at a later time.  You will also need to fill out and file an SR-1 with the DMV.

to your insurance company, even if you are not at fault. If your insurance policy provides medical payments coverage and you require medical treatment because of the accident, your insurance company will provide you with information about how to use that coverage. Additionally, you may need to make a claim under your policy’s uninsured coverage (if your policy provides such coverage).

3.         Photograph:

Vehicles involved in the accident. Take several photographs that clearly show any damage. Take photographs from different angles and all four sides of the vehicles. Consider keeping a disposable camera in your car for this purpose, although a cell phone that takes quality pictures will work too.

Your injuries.

4.         Seek medical treatment without delay if you are injured or experiencing pain.

5.        Obtain legal advice by calling Heiting & Irwin before meeting with any insurance company representative, filling out insurance documents or giving a recorded statement or medical authorization to any insurance company (even your own). You have no obligation to provide this information before you have had the opportunity to speak with an attorney. If an insurance company representative contacts you before you are prepared to discuss your claims, politely explain that you do not wish to discuss the matter at this time, and you will contact them in the very near future to discuss your claims.

We suggest that you consult with an experienced personal injury firm.  Heiting & Irwin, offers free, no-obligation initial consultations. Our experienced attorneys will provide you with a thorough, thoughtful case evaluation that will help you to decide how best to proceed with your claims. Call (951) 682-6400, email or visit our website for more information.

ARE LAWSUIT SETTLEMENTS TAXABLE?

June 22, 2012

By Dennis R. Stout

The simple answer to the question regarding the tax consequences of a settlement claim is it all depends on the nature of the settlement!

 

Generally speaking, settlement money received from cases involving personal physical injury or physical sickness can be excluded from taxation (IRS Code sect. 104(a)(2)). Certain other types of settlement awards, (considering the nature of the item that the settlement replaces), may be taxable, including compensation for lost wages or lost profits; breach of contract damages, employment discrimination, emotional distress (if not related to physical injury or sickness); and punitive damages just to name a few.

 

In conclusion, only settlements from physical injury or sickness are non-taxable; generally all other types of settlements are taxable. Given the complexity of litigation, settlements and tax consequences, it is important and prudent to speak to an attorney, accountant, or tax advisor for clarification on this issue. Attorneys at Heiting & Irwin are always available to assist our clients with all of their legal needs and questions.

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.

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.

ARE YOU RESPONSIBLE FOR YOUR DOG?

February 8, 2011

By: Dennis R. Stout

Animal bites are commonplace in our society. In many instances, a person bitten by a dog has a right to recover damages from the animal’s owner or other responsible party.

California Civil Code Section 3342 states that the owner of any dog is liable for the damages suffered by any person who is bitten by the dog while in a public place or lawfully in a private place, including the property of the owner of the dog, regardless of the former viciousness of the dog or the owner’s knowledge of such viciousness.

Under this California strict liability policy, the owner of the animal is generally responsible for any injuries caused by the dog, regardless of the owner’s actions. Someone other than the owner, such as a keeper or a landlord, is responsible only if he or she had previous knowledge of the dog’s vicious nature.

There may be certain exceptions to these general principles, ie adequate warning, provocation or assumption of risk, however under California’s dog bite statute, the owner of a dog is responsible for the damages suffered by any person who is bitten by the dog. Those damages include medical expenses, wage loss, property damages and pain and suffering.

For dog bites, or any other type of injury claims, Heiting & Irwin can prosecute or defend those claims. Our attorneys have exceptional qualifications and expertise to protect not only the injured party, but also the tortfeasor. Contact us with any type of injury claim whether plaintiff or defendant!

Collateral Source vs. Hanif – The Fight for Plaintiff’s Damages

September 27, 2010

By Sara B. Morgan, Esq.

The legal community in California is astir with news of the developments towards abrogation of the Hanif/Nishihama reduction. With several cases pending decision by California’s Supreme Court, the question for the would-be plaintiff is: what is the difference between Hanif and the Collateral Source Rule?

The answer depends on whether the plaintiff has health insurance. For example, if a plaintiff is injured by a defendant in an auto accident, his/her health insurance company will provide coverage for the plaintiff to treat those injuries. If the plaintiff and defendant cannot reach a settlement, the case may go to trial.

Under Hanif, the trial ends. A jury finds that the defendant committed some wrong upon the plaintiff, from which the plaintiff was harmed. The jury awards the plaintiff an amount it determines appropriate to compensate the plaintiff, including a specific amount for the plaintiff’s past medical expenses, which is usually based on the amount of plaintiff’s medical bills.

Because the health insurance companies contract with the health care providers for discounted rates, the insurance companies end up paying a lower rate than the rates billed by the provider.

After trial, the defendant asks the judge to change – reduce – the jury’s award for past medical expenses to the amount actually paid by the plaintiff’s health insurance company, under its contracts for reduced rates with the health care providers.

Thus, irrespective of the amount the jury has determined is necessary to compensate plaintiffs, the wrong-doing party can use plaintiffs’ medical insurance against them to deprive plaintiffs of their rightful benefit flowing from payment of their monthly insurance premium.

Additionally, this results in an unfair and unjust benefit to tortfeasors. Foremost, a jury has determined that the tortfeasors conduct was wrongful, and harmed the plaintiff. Why are the wrongdoers then put in the driver’s seat? It is a miscarriage of justice to allow defendants to call the shots after their conduct has been determined to be wrongful, and to harm plaintiffs yet again by depriving them of their jury awards.

Conversely, under the Collateral Source Rule, the defendant is not permitted to reduce the jury’s award for past medical expenses. Plaintiffs are not punished for having health insurance, or for obtaining treatment under that health insurance policy for injuries they sustain from defendant’s wrongful conduct. Nor do tortfeasors benefit from plaintiff’s decision to maintain health insurance for themselves and their families. Instead, plaintiffs retain the benefit of their health insurance, and are able to pay their past medical expenses and their costs of trial, and have some money left over to compensate themselves for their pain and suffering.

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.