San Francisco Injury Attorney Blog

There have been many reports in the news lately about links between playing professional football and early onset of dementia. Now, according to a story in the San Francisco Chronicle, Congress is investigating. All this recent attention started with a New Yorker Magazine piece about the high number of pro football players with dementia, often misdiagnosed as Altzheimer's.

None of these reports will come as much of a surprise to personal injury lawyers who have handled traumatic brain injury (TBI) cases. We know that just one concussion can cause a TBI with permanent effects. While most people who have continuing symptoms after a concussion make a complete recovery, a minority of people do not, and are left with permanent impairments. These impairments often include forgetfulness, difficulty finding the right words, and irritability. That this type of permanent injury can result from even a minor concussion makes it obvious that pro football players, who will usually have many concussions over a career, are likely to have a high rate of TBIs.

Appropriate testing can be hard to come by for NFL players too. The New Yorker story points out that often players are seen by a team physician, who works for management, and is under pressure to get the player back on the field.

Many of these injuries are subtle, and don't have physical manifestations that show up on diagnostic image tests, such as CAT scans or MRIs. The damage to the brain is so physically subtle that it often only shows up on autopsy. The New Yorker Magazine piece details how numerous brain autopsies involving football players showed what had happened to their brains.

These milder TBIs have their own name, MTBI--for Mild Traumatic Brain Injury. Many people who are injured in an accident don't even realize that they have an MTBI. Friends, family member, and co-workers often fill in the gaps, and can be important sources of information about the problems that the person is having. Sometimes the person suffering from the injury thinks he or she is functioning well, only to hear from others that they are much different after an accident.

Since these MTBI injuries do not show up on standard image tests, the diagnosis is most often made by testing performed by a type of psychologist called a neuropsychologist. In the San Francisco Bay area, we have many talented neuropsychologists, but getting health insurers to pay for the extensive testing needed can be difficult.

Continue reading "Professional Football and Brain Injury " »

Wrongful Death verdicts and settlements in the San Francisco Bay area and throughout the state have gone up a lot in recent years. This is one of the very few areas where juries seem to be more generous today than they were ten years ago. A recent verdict against a radio station in Sacramento, California makes this point.

As reported in a CBS news story, one of the participants in station KDND's contest, entitled "Hold your Wee for a WII," Jennifer Strange, died from water intoxication after drinking massive amounts of water, but not urinating, in order to win an endurance contest. Water intoxication is a little-known condition, often affecting runners who go overboard in their efforts to drink enough water in a marathon.

In the KDND case, the victim was a mother of three children, and was trying to win a WII for her kids. The verdict is especially large for case where the victim was not someone who pulls down a large income. A big part of the money recovered in many wrongful death cases is for anticipated future earnings of the person who died. So, in casese that do not have punitive damages, it's not common to see such a large verdice for someone without high earnings.

Why are awards up so much for wrongful death cases? I'd like to think it's because juries are placing a higher value on the loss of human life, but I haven't seen anything to support that. I never understood how wrongful death verdicts could be so low in the past, and of course some still are. It's hard for a family to accept it when a jury finds that their loved one's death was caused by another person or a company, but then values their loss at, say, $200,000.

What I think is driving up verdicts in some cases is the sense of outrage at the conduct that caused the death. In the Sacramento California case, it's easy to see how a jury could be appalled at the radio station for conducting such this contest. Also, when the jury knows that a big corporation is behind a someone getting sued can often relieve any juror's worries about bankrupting a person or small business.

Continue reading "Remarkable $16.5 million Wrongful Death Verdict - Sacramento radio station contest" »

A recent column in the San Francisco Chronicle cited a chilling statistic: a full 50% of the traffic fatalities in the city involve pedestrians. This compares with an average of 15-20%. This far from the first report about how dangerous our streets are for pedestrians.
According to a U.S. National Highway Traffic Safety Administration (NHTSA) study, SF is the 4th most dangerous city for pedestrians per capita (among U.S. cities with populations of 500,000 or more).

So why do we have so many pedestrians being hit in San Francisco? I don't think it's because we San Franciscans are careless drivers or pedestrians. It's probably because we have the most dense concentration of pedestrians of any California city. Our often-narrow streets, and buildings with very little setback restrict visibility. At many San Francisco intersections, you cannot see who might be coming from the cross street until it's almost too late. Our many steep hills don't help either.

Although the Chronicle piece details some planned measures to try to address the problem, I think the primary way to avoid being hit as a pedestrian is to be extra defensive. Don't assume drivers can see you. Don't assume that someone you can't see one second won't come zipping around a corner the next. Make eye contact with drivers before stepping out in front of their cars. Never run or hurry into the street or crosswalk. Here is a link to an excellent list of pedestrian safety tips.

I believe that we see dramatically different policing of driving offenses in San Francisco, being a more defensive pedestrian is the only sure way to avoid becoming one of those statistics.

Here's an out-of-state case that nonetheless illustrates a key hurdle clients with medical malpractice cases in California face. Former CBS "Early Show" personality Mark McEwen's medical malpractice case was recently dismissed by a Federal judge, on the grounds that he could not prove that the anti-stroke drug that doctors failed to give him would have prevented the disabling stroke he suffered. Shortly after McEwen went to an Emergency room with classic stroke symptoms, he was sent home with a stomach flu diagnosis. McEwen's attorneys, and presumably his medical experts, believed that if he had been given proper preventative treatment-aspirin and blood thinners--he would not have suffered the subsequent stroke that cost him his career.

This is a classic example of a malpractice case where it is easy to prove the doctors were negligent, but the case is lost due to an inability to meet the legal standard to prove causation. This causation requirement applies to all California cases. In any case involving failure to provide timely, correct treatment, you must also prove that, if the treatment had been given when it should have, you would "probably" have had a much different outcome. Here in California, "probably" means more than a 50% chance. So, if the treatment--be it radiation, pills, an operation, etc.--would have given you a 40% chance to avoid harm, there is no case.

This causation requirement can be very hard for a malpractice victim to accept. Explaining to clients that they don't have a case, even though there is clear evidence that a doctor committed malpractice is a tough part of my job. Some defense lawyers call this the "so what" defense, as in, "so what, you didn't get the care you should have, but you can't prove it would have helped you."

Of course, it's always hard for the medical experts we must have in these cases to perform this type of "what if" analysis, and tell us what would have happened to a patient if he/she had been given proper care at any given point in time. And doctors who are sued can almost always find experts to support a "so what" defense in cases of failure to treat or misdiagnosis.

In McEwen's case, he didn't even get to present the issue to a jury. His case was dismissed on a pre-trial motion. One bright spot in all this is that juries in California tend to give malpractice victims the benefit of the doubt on causation questions at trial, once a strong case of malpractice has been proved.

Continue reading "CBS's Mark McEwen Loses Medical Malpractice Case" »

Many Californians who seek advice about pursuing a medical malpractice case are very surprised to learn that there is a limit on the amount of "pain and suffering" damages that they can receive, that has not been increased since it was put in place over 35 years ago. The MICRA law, which was created in a special session of the legislature convened by then-governor Jerry Brown in 1975, limited "general damages"--the primary are of recovery for most victims of malpractice in California--to $250,000. That may sound like a lot of money, but not to someone who has lost a limb, or even a loved one to malpractice. Economists calculate that today's $250,000 is roughly equivalent to $65,000 in 1975. California is one of 35 states with a cap on malpractice awards, but many other states have a cost of living increase in their laws.

Now there is a case making its way to the California Supreme Court challenging the MICRA law and its cap on damages. The limits have been challenged before, but this case, Van Buren v. Evans, raises some new California constitutional objections to the law, as well as those based on the U.S. constitution. So far, the doctors have won the first round, as the challenge was rejected by the California Court of Appeal.
The MICRA law, which also limits attorneys fees, and permits doctors and their insurance companies to pay large awards in installments, has had a big impact on patients' ability to find attorneys. Each year, the value of the $250,00 cap is less, and the costs of litigating a case are greater. Thus there are less attorneys willing to take these cases with each passing year. The attorneys who do take the cases become more conservative in their case selection, leaving more and more malpractice victims unable to find counsel.

There is no cap, though, on recoveries for "economic" losses, such as loss of earnings. This results in an inherent bias against cases brought on behalf of children, or retired persons, who cannot prove any lost earnings. There is likewise no limit on recovery for future medical expenses, but many cases involving severe damages, including death cases, have no such expenses.

The lobbyists for the doctors and their insurers argue that if the cap is removed, or even allowed to adjust for the cost of living, the cost of malpractice insurance will go too high, and we will have a doctor shortage and increased health care costs in California. Nationwide, though, doctors' insurance amounts to only about one percent of health care costs.

Why isn't there more pressure from the public to increase the 35 year old cap on these malpractice damages? Probably because this is not an issue that most people concern themselves about, unless they or a member of their family experiences malpractice. It is difficult to get people really interested in changing a limit that they believe will never affect them. Many or most people are not even aware of the limits. Typically, people find out about the limits only after consulting a lawyer about a potential case.
Since this is not an issue that's likely to be the subject of a ballot proposition in California, the best chance for changing the MICRA limits law lie with legal challenges to the law, or in the new constitutional challenge now making its way through our courts.

Continue reading "New Challenge To California's Medical Malpractice Compensation Caps" »

If you haven't done so recently, now is a good time to double check your auto insurance policy limits. Many people end up with liability coverage limits that are recommended by their insurance agents when they first buy the policy. Often, these limits have been in effect for many years, even though an individual has accumulated more assets--such as a home in the San Francisco Bay Area--and their financial picture has changed considerably.

Even the best driver runs the risk of causing a death or serious personal injury while driving a car, or being involved in an accident where he or she is blamed for a serious accident that severely injures someone. How could that happen to a good driver? Here's one example: a child runs out in front of a car without looking. Accident reconstruction tests are performed, showing that the driver was going 35, when the speed limit was 25. This can easily happen in areas where the roads are marked with limits that are low for the type of road, or where the speed limit on a road changes during a drive. When an accident causes a death of a wage earner, or causes catastrophic injuries, the liability exposure can be in the millions of dollars.

If you have little or no assets, you may not be very concerned about injury liability exposure. But if you own a home, other real estate, have savings, investments, or other assets of considerable value, an auto accident claim could wipe you out.

We have handled numerous cases over the years in which the party at fault did not have enough car insurance, and had to mortgage their home, and sell investment property as a result of a lawsuit.

So how much auto insurance should you carry? The more the better. You may not be able to buy enough insurance to fully cover a catastrophic personal injury claim, but by having high limits, you create a fund that could be a big bargaining chip in getting a "full and final" release from further claims by the injured person. Many attorneys do not want to go through the very difficult process of collecting from an under-insured person's personal assets, and may encourage their clients to accept the insurance proceeds instead of proceeding against your personal assets.

Auto liability insurance limits of $250,000 or more provide a thick layer of insulation between you and personal injury claims and do not cost that much more than lower limits. An even better choice is to purchase an "umbrella" policy. This is an additional policy that extends your liability for personal injury and wrongful death claims to a high limit, usually 1 or 2 million dollars. Umbrella policies typically only cost a few hundred dollars per year, and are well worth the investment if you have significant assets.

Continue reading "Auto Accidents: Do You Have Enough Insurance?" »