Families In Wrongful Death Cases

If a person dies because of the neglect or fault of another, it is the family who hold the cause of action or claims to sue the at-fault party or company. Family members should be compensated for the loss of their loved one. They can recover for the loss of the love and companionship of the victim as well as the financial loss that goes along with the person’s death.

Few experiences are more emotionally trying than the unexpected death of a loved one.  Losing a family member, especially when the death was preventable and unnecessary, will undoubtedly cause a variety of emotions such as grief, anger and pain.  The wrongful death of a family member can also bring with it considerable unplanned financial difficulties.

Who Has the Right to Sue For Wrongful Death?

In California, only certain people have the right to sue for wrongful death.  The deceased person’s spouse, domestic partner, and children have that right, and if they don’t exist then the lawsuit may be brought by the person next in the line of intestate succession.

What Damages Can the Family Recover

When a surviving relative loses a cherished family member because of the fault of another, the relative can recover for the loss of that family member.  The relative can sue for the loss of the love, comfort, affection, moral support and guidance of that family member.  The relative also has the right to claim damages for the lost financial support and household services.

The Elements of a Cause of Action for Wrongful Death

To prove a case of wrongful death, the surviving relative must show that the death of their loved one resulted from the neglect or carelessness of the defendant.  The relative must also prove that it was this neglect that was the actual cause of the loved one’s death.  This proof is often bolstered through the use of expert witnesses who can help explain the case to a jury.

The study of traumatic brain injury (TBI) and its multiple causes is rapidly evolving.  Doctors and scientists are only now beginning to understand the complexities of a brain injury.   The human brain is a delicate organ and susceptible to injury in a variety of ways.  Injury can be caused by direct impact, by acceleration/deceleration alone, or by shock waves.  In addition to direct trauma to the brain, a TBI can cause secondary injuries arising out of the disruption of blood flow to the brain.

The Impacts of A Traumatic Brain Injury

A traumatic brain injury can result in a variety of cognitive deficits, and often victims of these injuries have difficulty even recognizing the extent of their deficits.  Brain injury victims often suffer from problems with concentration and attention.  They often have memory problems and can struggle with confusion.  Often, these brain injuries can result in difficulty with processing and delays in word finding.  The care costs of a person with a severe brain injury can climb into the millions. Additionally, clients who have sustained traumatic brain injuries often lose their ability to earn a living, and with it, their health insurance and other employment-related benefits.

Psychological Impacts from A Brain Injury

It is all too common that a victim of a traumatic brain injury has a significant psychological impact.  Often symptoms such as impulsiveness, anger and frustration accompany a diagnosis of a brain injury.  It is not uncommon for brain injury victims to struggle with depression.  It is usually advisable to get a psychological assessment from a proper medical professional if these symptoms arise.  These injuries can be devastating, and they often impact family members of the victims as well as the victims themselves.  It is often advisable to find support groups to help deal with the fallout from these types of injuries.  One of those resources is The Centre for Neuro Skills.  https://www.neuroskills.com/

Proving a Case Involving a Traumatic Brain Injury

Typically, in cases where a person has suffered a traumatic brain injury, the medical treatment itself may not reflect the extent of the injury.  Doctors are often limited in the amount of medical options they have to offer a patient.  A person who suffers a severe brain injury may not undergo a substantial amount of medical treatment or incur sizeable medical expenses.  As a result, we often focus on the human impact on the victim and we utilize expert witnesses such as neuropsychologists, psychiatrists, and neurologists to help explain these injuries.

The spine provides the main support for the body.  It is made up of 33 bones or vertebrae that interlock with each other to form the spinal column.  The spinal cord runs through the spinal canal from the brainstem down through to the first lumbar vertebra, relaying messages between the brain and the body.  The bony vertebra in the spine are separated by intervertebral discs which prevent the bones from rubbing together.  These discs have a gel filled center called a nucleus, and the discs function like ball bearings when we move, allowing the vertebral bodies to roll over the gel nucleus.

Common Injuries to The Spine

The most severe type of spine injury occurs when there is damage to the spinal cord itself.  This type of injury can result in paralysis below the point of injury and, in the most extreme cases, takes away a person’s ability to walk.  The discs themselves are also susceptible to injury.  Sudden acceleration or deceleration forces can result in bulging or herniated discs, sometimes causing tears in the discs.  When the injury causes an impingement of a nerve in the spine, a person often experiences radiating pain into an arm or leg.  This is called radiculopathy.  Spinal injuries can be severe, painful and debilitating.

Diagnosing and Treating Spine Injuries

Often after an accident, a person experiences pain.  However, the pain and the resulting radiculopathy (radiating pain including feelings of numbness and tingling) can worsen over time.  Injuries to the intervertebral discs are not diagnosable on an x-ray.  Rather, a treating doctor, often a spine surgeon or neurosurgeon, will order an MRI or CT scan if he or she is worried about a disc injury.  If the pain progresses, a pain management physician may recommend an injection or block into the spine which can function as both a diagnostic and therapeutic tool.  Ultimately, surgical intervention is available through surgeries including fusing the discs or replacing them in certain circumstances.

Proving the Cause Of a Spine Injury

As the plaintiff, you have the burden of proof, and in a civil case, that burden is a preponderance of the evidence.  This means that we must prove that it is more probable that not (ie, more than 50% chance) that the spine injury was caused by the accident.  This is where expert witnesses are crucial.  Medical experts help explain to a jury how the diagnosis was reached.  It is important to remember that the defense commonly claims that the injured person had pre-existing degeneration of the spine.  However, under the law, a person must be compensated if an underlying condition was worsened or exacerbated because of an accident.

Victims of Physical, Neurological and Psychological Injuries

We often represent victims of physical injuries. We have vast experience litigating cases for people who have suffered spine and disc injuries, compound fractures, and severe burns. Brain injuries often are not as obvious on the surface, but they can be even more life-altering than external injuries. We have represented numerous victims of brain injuries and are quite familiar with the common symptoms and lingering effects such as disorientation, anger, depression, and memory loss. Often our clients also suffer from emotional injuries such as post-traumatic stress disorder that impact our clients on a daily basis.

Physical forces from significant falls or vehicle collisions can be extreme.  When the forces exerted on a person’s bones are stronger than the bone itself, the bone fractures.  If the bone snaps and ends up in two pieces where the ends are not aligned, the person has suffered a displaced fracture.  If the bone is in multiple pieces, a doctor may refer to it as a comminuted fracture.  An open fracture is where the bone penetrates the skin.

Treatment for Fractures

Typically, a person who suffers a severe fracture receives emergency medical attention to address the fracture.  X-rays are routinely utilized to diagnose the extent of the fracture.  Casts and immobilization techniques can be effective to treat minor fractures.  However, when a fracture is displaced or comminuted, a doctor may recommend surgery in the form of an open reduction internal fixation surgery.  A surgeon will use hardware to fixate the bones to secure them in the proper position.

Long Term Impacts from Fractures

It is important to remember that a judgment or settlement concludes the litigation for all time.  This means that an injured person cannot return to court years from now to claim ongoing medical expenses or future pain.  So, it is important to evaluate all future impacts before the conclusion of the case.  Surgeries to repair fractures can leave patients with future medical care needs.  A patient who has had hardware including pins, plates and screws utilized to fixate a fracture may very well require subsequent surgeries to remove the hardware, which itself can be painful.  The fracture itself can heal but leave long term pain and disability due to arthritis.

The Eggshell Plaintiff

The amount of force required to fracture a bone will depend upon the strength of the person’s bone itself.  At times, a person’s bone may be compromised because of age or an underlying medical condition.  Under California law, a person who is more susceptible to an injury, such as because of age or an underlying medical condition, is equally entitled to recover for the full extent of his or her fracture.  A plaintiff is not punished just because he or she is an “eggshell” plaintiff.  Rather, the person who causes the injury takes the plaintiff as he finds him or her.

Post-Traumatic Stress Disorder (PTSD) can develop after a person experiences a traumatic and dangerous event.  It is natural to experience fear as a result of a scary and shocking incident.  In fact, the emotions are a part of our “fight or flight” response system intended to protect us from harm. When that fear and anxiety does not let up after a number of months, a doctor may diagnose a patient with PTSD.

Symptoms of PTSD

Certain criteria lead to a diagnosis of PTSD.  First, a person who suffers from PTSD may re-experience or re-live the traumatic event.  This will come in the form of nightmares, flashbacks or scary thoughts.  Second, a person with PTSD will often avoid situations that remind the person of the traumatic event.  The person may stay away from places, events or even things that remind him or her of the event.  Third, the person may experience hyperarousal, meaning feeling over-alert or constantly looking for danger.  This can be experienced by a difficulty sleeping or concentrating.  Fourth, the person may have feelings of negativity.  It is common to feel guilt or shame even if the person did nothing to cause the trauma.

How PTSD is Treated

Psychologists and therapists treat PTSD with a variety of different methods.  One common method is psychotherapy or “talk therapy” that focuses on dealing with the memory of the event and understanding the meaning of that memory.  The goal of the therapy is to help the patient to remember the event without the overwhelming feelings of fear and anxiety.  The specialist facilitates an understanding of how the trauma has impacted his or her thoughts.  Some psychiatrists also prescribe medication.  And, family support is a critical factor in treating PTSD.

Can a Person Recover for the Effects of PTSD

The law recognizes that a victim of an accident is entitled to be compensated for the emotional harm brought about by the trauma.  Specifically, jury instructions require that a jury recognize legitimate claims of emotional distress that include diagnoses such as PTSD.  If a client suffers from PTSD, it is important to have a medical expert testify about the diagnosis of the disorder and the future care that is needed to treat the patient.

People Hurt as a Result of the Neglect of Others

Tort law is designed to help those who have been wronged because of the neglect or fault of others. We often represent people injured in car accidents, bicycle accidents, motorcycle collisions, aircraft crashes, boating accidents and railroad derailments. We have experience helping those who have been injured because of hazards on property. We have helped those who have been the victims of medical malpractice and elder abuse because of the neglect on the part of medical institutions and physicians.

We demand justice for clients to help them recover from their suffering and give them the financial security they need to move forward with their lives.

There are approximately 254 million passenger cars on the road in the U.S. according to a Department of Transportation (DOT) study, and the U.S. is home to three large car manufacturers: General Motors, Ford Motor Company and Chrysler.  Consequently, it comes as no surprise that car accidents are one of the leading causes of injury and death in the United States, and the roadways in Los Angeles are some of the most congested. As the number of cars on the road have increased, the number of car accidents have similarly increased.  There are approximately 33,000 fatalities each year from car accidents.

Automobile Insurance

A practical problem arises in many claims and lawsuits involving car accidents.  That problem is the absence of adequate insurance limits.  The minimum amount of coverage required in California is $15,000 (in some instances it is even lower).  This causes serious problems with collectability if an uninsured or underinsured motorist causes severe injuries or death because of his or her inattentive or reckless driving.  We often will look to a victim’s own uninsured and underinsured motorist coverage for additional resources.

Employer Liability

Under a doctrine called respondeat superior an employer is liable for the conduct of its employee during the course and scope of employment.  This means that an employer is responsible if its employee harmed someone while the employee was working on the job.  We often attempt to determine whether an employer may be responsible for the victim’s injuries under the doctrine of respondeat superior.

The Use of Experts

In many cases, the cause of an accident is clear.  The at-fault party may even admit fault to the police at the scene.  However, other times there will be a liability dispute.  In those situations, we will often retain an expert in the field of accident reconstruction to evaluate the accident and help determine who caused the accident.  Experts use different techniques to evaluate these accidents, but they often evaluate the forces involved to determine the cause.

Uninsured Motorist Arbitration

When the person who causes the accident does not have any insurance or not enough insurance to cover the harm he or she caused, the injured person can look to make up the difference on his or her own insurance policy.  That coverage is called uninsured or underinsured motorist coverage.  A claim is then made to the victim’s own insurance.  When there is a dispute about the amount of coverage that should be paid under the uninsured motorist coverage, the law requires that the dispute be handled in UM Arbitration as opposed to a lawsuit in Superior Court.

Injuries aboard trains such as Amtrak and on railroads have become all too prevalent in modern society.  According to the Federal Railroad Administration, there are approximately 12,000 to 13,000 railroad accidents each year.  These railroad accidents result in approximately 800 fatalities each year.  Train accidents can occur for a variety of reasons.  It may be the result of operator error.  Other times, safety mechanisms such as guard rails and warning signs may not be functioning.  Given the massive size and weight of these trains, the forces that result from these accidents are staggering and can result in severe injuries to passengers.

Amtrak’s Capped Liability

Despite repeat accidents aboard Amtrak commuter trains, Amtrak retains a per accident cap on damages of $295 Million.  It is often difficult to determine the extent of injuries and damages at issue in an accident.  However, when a train derails, the casualties are numerous and severe.  Congress passed the 1997 Amtrak Reform and Accountability Act that capped Amtrak’s damages in an accident to $200 Million, later raising it to $295 Million.  That means that no matter how many people are injured or killed in a train crash, there will be no more than $295 Million to pay for the resulting harm.

Injuries to Railroad Employees Are Governed by Federal Law

Work in the railroad industry is high-risk work.  Railroad employees are often the victims of serious on-the-job injuries.  As Federal employees, railroad workers do not receive workers compensation.  Instead, they are required to bring their claims in Federal Court under federal laws such as the Federal Employer’s Liability Act (FELA), the Federal Safety Appliance Act (FSAA) and the Boiler Inspection Act (BIA).

What Can Be Recovered in Train Accident Cases

A victim of a train crash can recover all damages as long as there is no issue with the damages cap.  That means that the family of a victim killed in a crash can recover for the wrongful death of that victim.  Survivors of a crash can recover for the physical pain and mental suffering along with the economic impact from the injuries that were incurred.

We as patients trust doctors and hospitals to act professionally and in the best interests of their patients when they render medical care.  Medical malpractice occurs when a doctor or medical facility like a hospital injures a patient because of a negligent act or failure to act.  The law requires that doctors live up to a standard of care that is common to the medical community.  If the doctor’s treatment falls below the standard of care, the doctor can be liable for malpractice.

What Law Governs Medical Malpractice in California

In the mid-1970’s, the California legislature enacted MICRA (Malpractice Insurance Compensation Reform Act).  The most significant aspect of MICRA is that it placed a cap on non-economic damages (also known as pain and suffering damages) at $250,000.  This amount applies regardless of the severity of the injury and even in wrongful death cases.  Additionally, the sum has not been adjusted to account for inflation.  Because of the way MICRA operates, this law adversely affects the poor and elderly who are less likely to have large economic damages.

Settlements in Medical Malpractice Cases

There are challenges to settlement in a medical malpractice case.  In order to understand this, it is important to recognize how insurance companies operate.  In a typical case like a car accident case, an insurance company has the right to settle a case with or without the consent of the defendant.  In a medical malpractice case, the relationship is different.  The defendant doctor, hospital or medical group must consent to any settlement.  Complicating the matter further, any settlement of $30,000 or more must be reported to the California Medical Board.

Trial of A Medical Malpractice Lawsuit

There are difficult hurdles that must be overcome during the trial of a medical malpractice case.  The jury instructions favor the defendant doctor.  For example, one instruction tells the jury that just because a doctor’s efforts are not successful doesn’t mean there was malpractice.  Another one instructs that a doctor is not necessarily negligent simply because there is another alternative form of care available.  For these reasons, it is important to retain an expert witness who can clearly and unambiguously explain how the doctor’s conduct was below the standard of care.

A motorcycle collision is all too likely to result in a fatality or serious injury to a motorcycle rider. Most motorcyclists follow the rules of the road.  Yet, motorcyclists are often unjustly faulted for causing an accident even when another driver was the true cause of the collision.

Preservation of Evidence

Following any motorcycle collision, it is critical to preserve the evidence to prove fault on the part of the other driver.  As the plaintiff, the motorcyclist has the burden of proof in any civil case.  That burden requires that the motorcyclist prove that the other driver was at fault by a preponderance of the evidence.  In order to satisfy that burden, physical evidence of the crash must be preserved before it disappears.  For example, photographs of the damage and the scene should be taken.

Event Data Recorders (Black Boxes)

Most modern vehicles are equipped with event data recorders also known as “black boxes.”  These black boxes record most information following an impact.  Black boxes are a part of a car’s safety system, and it records speeds of a vehicle in the seconds leading up to the crash.  Data from these black boxes can be utilized to help demonstrate that the other driver’s speed or movements before impact caused the collision with the motorcyclist.

Comparative Fault

Attorneys for a defendant driver are often looking for ways to reduce their clients’ exposure for the full impact of a motorcycle collision.  Even with clear proof that the defendant caused the collision, the defense will often try to diminish the extent of liability for damages by arguing that the motorcycle rider did not utilize the appropriate gear.  This argument is based upon the doctrine of comparative fault.  Under that doctrine, damages must be reduced by the percent of the plaintiff’s own fault.  So, the motorcyclist should hold on to his or her gear to prove that it was worn at the time of the collision.

In California, property owners have a legal responsibility to prevent the property from becoming a hazard.  When a property owner fails to do so, accidents can result.  Premises liability refers to an obligation that a property owner owes to people the owner allows onto the property.  The owner must use due care to maintain the property so that people are not subjected to an unreasonable risk of harm.

Dangerous Conditions and Code Violations

A person who is injured on property has the burden to demonstrate that there was a dangerous condition on the property.  To assist in that hurdle, trial lawyers often assess whether the condition amounted to a code violation.  For example, an elevated area that has no guardrail may constitute a building code violation.  If such a code violation exists, the law allows for an instruction to the jury that there is a presumption of negligence or negligence per se.

Elevator and Escalator Accidents

Most of us ride elevators and escalators on a daily basis.  Just as routinely, accidents occur on these elevators and escalators as a result of faulty repair work and improper maintenance.  Under California law, owners of elevators and escalators are considered to be common carriers.  That means that they have a heightened standard of care.  They must use the utmost care and diligence to ensure their passenger safety.

Depositions in a Premises Liability Case

Depositions are a potent tool in most cases.  They become critical in premises liability cases.  Depositions allow victims and their attorneys to determine the practices and procedures that property owners maintain for the safe upkeep and maintenance of their property.  The absence of these policies and procedures allow for the inference that the property owner neglected his or her obligation to properly maintain the property.

A construction site is a dangerous place that can unnecessarily put construction workers in harm’s way, if not managed carefully.  Construction workers are faced with daily dangers such as, scaffolding, live electricity, power machinery, scissor lifts, fork lifts and cranes.  These regular tools of the construction trade are potentially hazardous if used unskillfully, or negligently.    Unfortunately, when an accident occurs on a construction site it often leads to serious injuries.

The Interplay Between Workers’ Compensation and Civil Cases

When workers are injured on the job, they are entitled to workers compensation.  And, other than in specific circumstances, a worker is legally prevented from filing a lawsuit against his or her employer for workplace injuries.  In those circumstances, workers’ compensation is the exclusive remedy of the injured worker.

However, an injured worker who has a workers’ compensation case may also have a civil case.  If the injury occurs because of the fault of someone other than the employer, the worker is entitled to sue that person.  That means that the worker will have both a worker’s compensation case and a case against the at faulty party.

Osha Violations

OSHA is the Occupational Safety and Health Administration which sets and enforces protective workplace safety and health standards.  When an accident occurs at a jobsite, OSHA often will investigate to determine whether there were any violations of OSHA standards.  Under California case law, it has been determined that OSHA regulations may be given as law to the jury to establish negligence.

How to Handle Medical Expenses In Construction Site Cases

When an accident occurs on a construction site, an injured worker’s medical expenses are typically paid either through health insurance or by the workers’ compensation insurance carrier.  Other times, medical expenses are handled on a lien basis which simply means that a medical provider agrees to wait for payment until a case is resolved.  As discussed above, an injured worker may have a lawsuit against an at-fault party even if the worker has a tandem workers’ compensation case.  In that situation, when the worker gets a recovery from the at-fault party, he or she must then reimburse health insurance or the workers’ compensation insurance carrier for the medical expenses they paid.

Advancements in technology have brought about simplification and automation in many industries.  In the transportation industry, the 21st Century has seen the development of ride share services with the widespread adoption of services of companies such as Lyft and Uber.  With the convenience of this new ride share service also comes new and unique legal issues.  Some of these legal issues still remain unresolved.

Lyft And Uber’s Liability for Acts Of Their Drivers

Uber and Lyft maintain strict controls over their drivers.  They control their access to riders.  They receive payment from all of the riders and then distribute a certain share to the drivers.  Uber and Lyft must approve all drivers and retain the right to terminate these drivers.  Yet, in the event an Uber of Lyft driver causes an accident, Uber and Lyft take the position that the driver is an independent contractor, as opposed to an employee, and as a result reject any legal responsibility for the accident.  Whether or not Lyft or Uber are employers of their drivers remains an issue that must be determined by a jury in each case.

Autonomous Vehicles, Best Known as Self-Driving Cars 

A further development in this area of ride sharing is the advent of autonomous vehicles also known as self-driving cars.  Uber and Lyft as well as vehicle manufacturers such as Tesla are actively deploying self-driving or autonomous vehicles.  Uber and Lyft hope that one day soon, human drivers will be as dated as the horse drawn buggy.  This raises unique legal questions that have yet to be answered.  For example, will an at-fault driver argue that he or she has no responsibility for an accident because the vehicle malfunctioned.  And, the industry will continue to try to push legislation that will provide them with immunity for accidents caused by the malfunction of their vehicles.  It is important, however, to remember that if such a bill is passed, these manufacturers will have little incentive to improve their technology to avoid risk of injury and death.

The Insurance Maintained by Uber and Lyft

In addition to the convenience of selecting Lyft or Uber as opposed to a traditional cab, there is another less recognized benefit to doing so.  In many cities, cab companies are permitted to have very low limits of insurance and they typically do not carry any uninsured motorist coverage to protect their own passengers.  By contrast, Uber and Lyft maintain insurance policies of $1 Million of liability insurance as well as uninsured motorist coverage.  This practice should be required for cab companies as well.