Posts Tagged ‘Riverside Malpractice’

Recent Changes to Jury Fee Rules

October 1, 2012

by Jean-Simon Serrano

In California, if you demand a jury trial, you are required to pay a deposit for exercising that right.  In recent years, prior to June 5, 2012, the Code of Civil Procedure § 631(b) read:

 

“Each party demanding a jury trial shall deposit advance jury fees with the clerk or judge.  The total amount of the advance jury fees may not exceed on hundred fifty ($150) for each party.  The deposit shall be made at least 25 calendar days before the date initially set for trial…” [emphasis added].

 

Earlier this year, Code of Civil Procedure § 631(b) was amended to read:

 

“(b) Each party demanding a jury trial shall deposit advance jury fees with the clerk or judge. The total amount of the advance jury fees shall be one hundred fifty dollars ($150) for each party.

(c) The advance jury fee deposit shall be made on or before the date scheduled for the initial case management conference in the action. If no case management conference is scheduled in a civil action, the advance jury deposit shall be made no later than 365 calendar days after the filing of the initial complaint. If the party has not appeared before the initial case management conference or has appeared more than 365 calendar days after the filing of the initial complaint, the deposit shall be made as provided in subdivision (d).” [emphasis added].

 

There are three things to note: (1) the “fee” is non-refundable; (2) each party is responsible for depositing this fee; and (3) the fee is required to be paid on or before the first Case Management Conference or within one year of the filing of the action.

 

Under the June 5, 2012 Amendment, every plaintiff is required to pay $150.00, in addition to the $450.00 filing fee (Riverside County), simply for bringing a civil action – this could amount to many hundreds of dollars in non-refundable fees being paid in a case where multiple plaintiffs are injured.

 

Additionally, because the vast, vast majority of personal injury cases in California settle before trial (indeed many statutes are engineered to promote the goal of settlement), this non-refundable fee gets paid to the court, never to be used to pay for the plaintiff’s non-existent jury and never to be returned to him/her.  Previously, the jury fees were only to be paid 25 calendar days before the initial trial date and, in many cases, an action would settle before such fees were deposited.  Now, the fee must be paid very early in litigation, often before any meaningful attempts to settle can be made.

 

As a result of much discontent regarding the June amendment to Section 631(b), Assembly Bill 1481 was introduced, passed, and signed into law on September 17th 2012, to take effect immediately.  Code of Civil Procedure § 631(b) now reads:

 

At least one party demanding a jury on each side of a civil case shall pay a nonrefundable fee of one hundred fifty dollars ($150), unless the fee has been paid by another party on the same side of the case. The fee shall offset the costs to the state of providing juries in civil cases. If there are more than two parties to the case, for purposes of this section only, all plaintiffs shall be considered one side of the case, and all other parties shall be considered the other side of the case.” [emphasis added].

 

The language of the Section now requires only one party per side to pay the jury deposit fee.  Unfortunately, the requirement that these fees be deposited on or before the date of the first Case Management Conference remains (a few narrow exceptions are listed in Section 631(c)).

 

It seems clear that the recent changes to these rules were designed to provide the Courts with more funding.  It is also clear that, given the early requirement for depositing such non-refundable fees, this is another non-recoverable cost that must be incurred by a plaintiff in bringing an action for damages.  What are less clear are the implications these rules have on one’s Constitutional Right to a jury trial and whether we will see further outrage like that which resulted in AB 1481.

The Benefits of a Large Auto Insurance Policy

February 3, 2012

 by Jean-Simon Serrano

If you own and drive a car in California, not only does the law require that you have auto insurance, it is also a good idea.

 Technically, the law doesn’t require you to have an auto insurance policy.  In fact, as an alternative to insurance, one can post with the DMV a thirty-five thousand dollar ($35,000) bond or a thirty-five thousand dollar ($35,000) cash deposit.  Or, if you qualify, you may be issued a certificate of self-insurance from the DMV.  Realistically, an insurance policy is the only option for many.

 It is good to have an insurance policy and there are myriad reasons for this.

 Protection from Personal Liability

The first reason is probably the most obvious: protection from personal liability should you cause an accident.  If you are deemed to be at fault for an accident, you want an insurance policy to protect you and your assets for the damage caused.  This means picking a policy with appropriate limits.  How much is appropriate will depend partly on the assets you wish to protect.  For example, if you have multiple vehicles, a house, and/or other real property, a minimum policy of $15,000.00 per person/$30,0000.00 per incident will not adequately protect your assets if the accident you have caused does damages in excess of these minimal limits.  I have heard insurance defense attorneys joke that carrying a minimal policy is wise as it can lead to faster settlement in some cases and that attachment of assets is rarely sought.  This is not good advice.  Not only do many plaintiffs’ firms, such as the one where I work, regularly seek attachment of assets where necessary, carrying a minimal policy will limit the amount of underinsured motorist coverage you can carry, the benefits of which will be discussed later in this article.

 You should carry as large a policy as you can afford – the benefits of a large insurance policy go beyond mere asset protection.

 Civil Code § 3333.4 “Prop 213” Considerations

There is another very important reason to carry automobile insurance that is not well known to those outside the legal and insurance industries: Civil Code § 3333.4 or “Proposition 213” as it is commonly known.

 Civil Code Section 3333.4 states that a person “shall not recover non-economic losses to compensate for pain, suffering, inconvenience, physical impairment, disfigurement, and other nonpecuniary damages if… (2) The injured person was the owner of a vehicle involved in the accident and the vehicle was not insured…” Civil Code § 3333.4 [emphasis added].

 Thus, even if you did not cause the motor-vehicle accident, you may be unable to recover for, among other things, pain & suffering, physical impairment, and disfigurement, if your vehicle was not insured at the time of the accident.

 You could become horribly disfigured because someone was texting while driving and not be able to recover for this disfigurement because you were not, yourself, carrying an insurance policy at the time of the accident.  This is certainly a drastic example; however, it should be reason enough to ensure that your vehicle is always insured – at any level of coverage.

 Protection Against Others (Uninsured/Underinsured Coverage)

A third, extremely important, reason to have auto insurance is to protect yourself against the harms caused by others.

 Won’t my injuries be covered by the at-fault party’s insurance?  Yes, no, and maybe.  As mentioned earlier, California permits one to carry an insurance policy as low as $15,000.00/$30,000.00.  If this is the only insurance policy held by the at-fault party, and they have no assets, this may not be enough to compensate you for your damages.  Furthermore, what if the other party has no insurance!?

 Fortunately, Insurance Code § 11580.2 requires every policy of auto insurance issued in California to include coverage equal to the minimum required coverage ($15,000/$30,000) against owners or operators of uninsured motor vehicles.  Therefore, if you are insured, but the at-fault party is not, you should at least be covered for the minimum amounts allowed by law… unless you specifically decline this coverage in writing.  I cannot fathom why anyone would decline this type of coverage in exchange for minimal savings on their insurance premium.  Do not decline this coverage – you are only hurting yourself.

 Additionally, uninsured motorist coverage can also be accompanied with “underinsured” coverage.  This type of coverage will protect you in the event that the at-fault party has neither an insurance policy large enough nor other assets available to fully compensate you for your injuries.  If you sustain serious injuries for which you will require life-long care, discovering that the at-fault party has no assets and only carries $15,000.00 of coverage only adds insult to injury.  With underinsured motorist coverage, you can protect yourself against such a scenario.  Using the previous example, if you carried $500,000.00 in underinsured coverage, you would still have $485,000.00 in coverage after the at-fault party’s minimal insurance was depleted.

 Protect yourself against those who do not fully insure themselves!  Many people on the road carry only minimal insurance policies.  The risk is too great that you will be injured by someone with low to minimal policy limits.  It does not make sense to decline uninsured motorist coverage or to carry anything other than maximum underinsured coverage.

 In addition to compliance with the law, these are only a few of the many reasons it is a good idea to have an insurance policy with maximum coverage.  Not only will you be protecting yourself, you will also be protecting others.

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.

What You May Not Know: 998 Offers

January 27, 2011

by Jean-Simon Serrano

Something that is often encountered in personal injury litigation in California is what is commonly referred to as a “998 Offer.”  Clients are constantly surprised by the 998 Offer as many have never heard of it.  Code of Civil Procedure § 998 is quite lengthy; however, the part that relates most pertinently to plaintiff’s personal injury practice is the following:

(c) (1) If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover his or her postoffer costs and shall pay the defendant’s costs from the time of the offer… the court or arbitrator, in its discretion, may require the plaintiff to pay a reasonable sum to cover costs of the services of expert witnesses, who are not regular employees of any party, actually incurred and reasonably necessary in either, or both, preparation for trial or arbitration, or during trial or arbitration, of the case by the defendant.

C.C.P. § 998(c)(1) [emphasis added].

This Section has the potential to have serious consequences for plaintiffs (and defendants if plaintiffs file a 998 offer).  Assuming the defense has made a 998 offer of $25,000.00, this is what such an offer could mean to the plaintiff:  If you  proceed to trial and receive less than the $25,000.00 offer, the plaintiff is potentially liable for the costs incurred by the defendant after the time of the offer.  Thus, in this scenario, the plaintiff would have to pay her own attorneys’ fees and costs, as well as the costs incurred by the defense.  The defense’s costs in such a scenario could easily be in the tends of thousands of dollars.  Bear in mind that this is true even if the final award or judgment is $24,999.99 and even if you “win” your case.  This leaves a plaintiff with the spectre of getting a jury verdict in her favor yet receiving nothing by way of judgment after costs and fees are paid.

Thus, the 998 Offer creates a substantial disincentive to “roll the dice” and take one’s case to trial if one is unsure of the probability of recovering more than the 998 offer.

The 998 offer is not just a tool to be used by the defense.  At Heiting & Irwin, we regularly send out 998 offers to defendants, demanding they offer the plaintiff a reasonable settlement.  When made by plaintiffs [under Section 998(d)], these offers work essentially the same way outlined above, creating financial disincentives for the defendant to proceed to trial when the plaintiff has made a reasonable demand for settlement.  If the plaintiff ultimately recovers greater than her own 998 Offer, the defendant may have to pay the costs incurred by the plaintiff since the date of her offer.

Statutes of Limitations and Why You Shouldn’t “Wait and See”

August 4, 2010

by Jean-Simon Serrano

It’s a story I hear on an almost weekly basis.  “After the surgery, I knew something was wrong but Dr. X told me to ‘wait a year and see what happens.’”  From a legal standpoint, this is terrible advice when dealing with a potential medical malpractice claim in California.

What’s wrong with waiting a year?  The Statute of Limitations.

A statute of limitations is a law which places a time limit on pursuing a legal remedy in relation to wrongful conduct. After the expiration of the statutory period, unless a legal exception applies, the injured person loses the right to file a lawsuit seeking money damages or other relief.

Simply put, barring a particular exception, if you don’t file your lawsuit in time, you will be forever barred from bringing your action.

In California, medical malpractice claims are governed by Code of Civil Procedure Section 340.5.  It states that medical malpractice actions must be commenced within 1 year from the date of the injury, or one year from the date the plaintiff discovers, or reasonably should have discovered the injury, whichever occurs first.  It also states that, absent a specific exception, “In no event shall the time for commencement of legal action exceed three years.”

There are three enumerated exceptions to the general rule.  These are:

1. Proof of fraud

2. Intentional concealment

3. The presence of a foreign body, which has no therapeutic or diagnostic purpose or effect, in the person of the injured person.  

Unless you meet one of these exceptions, or unless you are a minor, you essentially have one year to bring your action.

The periods of limitation for medical malpractice apply to minors six years of age and older. For medical malpractice actions involving minors below the age of six, the action must be filed within three years of the date of the injury or before the minor’s eighth birthday, whichever period is greater.

Lastly, if your claim is against a public entity, you are required to bring a public entity claim within six months.

With all of this in mind, hopefully, is it clear why it would be an extremely unwise decision to “wait a year and see what happens.”  Courts are very strict in enforcing statutes of limitations.  Even the most meritorious case could be summarily dismissed if not brought within the appropriate time period.

If you or a loved one has been injured due to medical malpractice, or suspects that they may have been the victim of malpractice DO NOT DELAY!  You should contact a medical malpractice attorney immediately to have your case evaluated.  Furthermore, because the evaluation of medical malpractice cases can take some time, you may find it increasingly difficult to find an attorney willing to take your case as the limitations period approaches.

Good Communication Can Reduce Lawsuits

January 28, 2010

by James Otto Heiting

Premiums charged by insurers are outrageous! Profit-driven underwriting for professional negligence makes all of us, except the insurance companies, suffer.

Although virtually every state has enacted some sort of “medical liability reform” to keep down premiums and financial risk to physicians and medical providers, these reforms, while onerous to the injured parties in many cases, have been a dismal failure in reaching the goals intended.

Picture you and your spouse, having had an uneventful pregnancy and carrying your healthy baby to term, reaching the hospital and placing yourselves in the care of the medical personnel there. Through a series of events that would be considered negligent, offensive, and even egregious, your baby does not receive the care that would be appropriate or required under the circumstances; and, as a result, your child suffers severe brain damage. This is your first child, and you may be limited, due to health considerations, from having any others.

You and your spouse deeply love your child, despite the fact that she cannot communicate, she cannot hear, and she is blind. She begins to suffer a series of maladies and requires constant attention. You take her home whenever you can and whenever her condition permits; but it seems that she has to go back to the hospital more and more often, and her condition is getting more grave.

Eventually, you succumb to the recommendations of the medical staff at the hospital, and you “let her go”. She slips away with her little dress on and the little bow in her hair, never to return, leaving behind an unbearable emptiness. Your loss is indescribable.

According to California law, the maximum you could receive in a damages award would be $250,000 for the loss of your child. Because you had some sort of insurance pay the medical bills (even public tax payer generated benefit), there is no entitlement to recover anything for bills that were not out-of-pocket. (The wrongdoer, even through liability insurance, is not responsible to pay back even the medical insurance company.) There is a good chance that you would not be able to recover for the weeks and months that you spent caring for your little girl, for the time that you had to take off work, for the inability to attend to your family, your other financial interests, your business. Obviously, the recovery set by these limits is woefully inadequate.

Even so, even with these limits on damages, insurance companies continue to sharply increase medical liability insurance pricing. I do not blame the injured parties or their attorneys. I do not blame judges or juries. It may be that the costs of defense (the defense lawyers and experts) may be out of control and should be limited. Certainly professional liability insurance carrier profits should be reviewed.

Irrespective of the cause of the increases in premiums, and irrespective of the inadequacy of damages awards available (at least from my perspective), the question arises as to whether there is an approach that would, at least in part, satisfy both sides. I think there is such an approach, but it is unlikely that a change in climate, trust and focus on all sides will occur without a change in practices, customs and time.

In September, President Obama announced a government backed pilot program to find alternative ways to approach the tort system for medical liability cases. He wanted to launch a program meant to cut down on expensive treatment through physicians having to practice “defensive medicine” to “avoid lawsuits”.

I, personally, feel that practicing medicine to avoid lawsuits probably equates to putting patient safety first, one of the other announced goals and requirements of the pilot program. Additional goals included working to reduce preventable injuries, fostering better communications between doctors and patients, insuring that patients are fairly and quickly compensated for medical injuries, reducing the incidence of frivolous lawsuits, and reducing medical liability insurance premiums. These are all laudable goals and may actually work.

Putting patient safety first and working to reduce preventable injuries are obvious and important components. We must remember that the medical profession is a service profession. If you will remember that, and you will keep that as a central component of your practice, it is much less likely that you will suffer claims, especially borderline claims.

Fostering better communication between doctors and patients is absolutely essential. I cannot tell you how many clients I see that come to me because of poor communication, or even refusal to communicate. Patients deserve communication and to be treated with respect and candor. Playing “hide the ball” and acting “holier than thou” will drive your patients to my doorstep.

Ensuring that patients are fairly and quickly compensated for medical injuries is a very exciting part of President Obama’s pilot program. It is exciting because it will hold down the expenses and high cost of defending cases; it will create an atmosphere of cooperation rather than antagonism; and it will serve to reduce medical liability insurance costs.

One of the ways to ensure fair and quick compensation for medical injuries is to encourage full disclosure and communication regarding such injuries. This is a difficult concept for many doctors, but it is effective in changing the mindset of plaintiffs and claimants to one of cooperation and gratitude for honesty and proper intentions. Full disclosure on both sides (recently getting play as “collaborative law” ) will result in much quicker (and more modest) resolution, less anxiety on both sides, less litigation, and probably less frivolous lawsuits.

I was consulted recently by a man who lost his wife due to inattention of nursing staff in an ICU. The medical negligence seemed obvious. The man asked me to represent him against the entity; but he also indicated that the risk manager of the hospital had contacted him and had indicated that the staff had made an error that resulted in the injury to his wife. The thing that drove the man to my office was that he felt insulted that the risk manager went on, in an attempt to minimize staff’s role, by telling him how sick his wife was, anyway, and that she would not have lasted more than a couple of years, even without the untoward events. That woman was everything to that man. She was his world. The risk manager, whether intentionally or otherwise, was diminishing their relationship and her worth. This was a mistake on his part that could and should have been avoided.

He was doing some things very well, though. The risk manager invited the widower to discuss compensation for his loss. (I felt that it was in the best interests of my potential client that I could advise him simply as to how I thought damages should be calculated and how he should approach risk management.) The two met several times and discussed the damages, the loss, and how sorry the risk manager was for this man’s loss. To make a long story short, my client settled the case with the risk manager within a few weeks. Although he settled for about sixty-five percent (65%) of what I saw as the value of the case for settlement purposes, he was able to get prompt resolution and pay a very minimal amount in attorney fees. He saved himself from a potential of years of litigation and probably would have received approximately the same net amount. At the same time, by being open and honest with the patient’s spouse, the risk manager saved the hospital the entire cost of litigation, including an extra $200,000 or so in damages, probably saving over $400,000 over a two or three year period of prospective litigation. By laying all the cards on the table, the hospital saved a lot of money, the risk manager was satisfied, the widower was satisfied to the extent possible, and I was happy that I could provide a service to my client that resulted in a real benefit to him.

In essence, then, my advice to reduce risk is to remember that service is the central component of healthcare, that respect for patients and their safety must be of primary importance; and, in order to foster good relations (and many times avoid claims even where claims are warranted), good and caring communication is the key.

My perspective: I respect, admire and root for health care professionals who care for and give their all for their patients; and I get angered by, and feel disrespected by, and want to teach a lesson to, those healthcare professionals who do not care and/or who want to hide behind arrogance and pomposity.