Posts Tagged ‘past medical expenses’

What is the Value of an Injured Pet?

October 31, 2012

by Jean-Simon Serrano

In what seems to be a trend of new cases expanding the rights of pet owners, the Court of Appeal for the Second District recently ruled that the usual standard of recovery for a dead or injured pet (market value) is inadequate when applied to injured pets.

The recent case, Martinez v. Robledo, (2012) 2012 Cal. App. LEXIS 1098, which was actually the consolidation of two similar cases, presented the legal issue: What is the measure of damages for the wrongful injury of a pet?

In both of the consolidated cases, the trial court ruled that the measure of damages would be limited to the market value of the injured dogs.

On Appeal, the Court held that a pet owner is not limited to the market value of the pet and may recover the reasonable and necessary costs incurred for the treatment and care of the pet attributable to the injury.

The Court reasoned:

“There can be little doubt that most pets have minimal to no market value, particularly elderly pets. As amicus notes, while people typically place substantial value on their own animal companions, as evidenced by the large sums of money spent on food, medical care, toys, boarding and grooming, etc., there is generally no market for other people’s pets.   We agree that the determination of a pet’s value cannot be made solely by looking to the marketplace. If the rule were otherwise, an injured animal’s owner would bear most or all of the costs for the medical care required to treat the injury caused by a tortfeasor, while the tortfeasor’s liability for such costs would in most cases be minimal, no matter how horrific the wrongdoer’s conduct or how gross the negligence of a veterinarian or other animal professional.”

Using the notion that tort law was designed such that injured parties are to be “made whole,” the Court held, “that allowing an injured pet’s owner to recover the reasonable and necessary costs incurred in the treatment and care for the animal attributable to the injury is a rational and appropriate measure of damages. Such evidence is admissible under Civil Code section 3333 as proof of a plaintiff’s compensable damages. And a defendant may present evidence showing the costs were unreasonable under the circumstances.”

Thus, with this ruling, those who have the misfortune of having their pets injured by another are no longer constrained to the mere market value of their fuzzy friends.  Instead, owners may now recover reasonable costs incurred for the treatment and care of the pet which arose as a result of the injury.

As an animal lover, I believe this ruling is long since overdue and I am pleased to see the Court recognizing that pets have some intrinsic value beyond their mere market or replacement price.

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.