To the insurer, anyone claiming serious injury from a collision that does not appear dramatic to one reviewing photographs, means that the party claiming injury is a liar. Insurance companies categorize these cases as 'fraudulent' and they are dealt with in their 'fraud' department. The carriers instruct their attorneys to hire expensive expert witnesses, including biomechanics witnesses, physicians and other experts to defend the cases at trial. They know that they can outspend most Plaintiff's attorneys and drum up evidence sufficient for their attorneys to argue that the injured person is a malingerer or simply out for secondary gain. This means that they argue the injuries are made up and not real.

I tried a case in October 2007 where the insurer pulled out all of these stops--and more. Still the jury saw through the tactics and fairly compensated this middle aged woman who suffered disc injury in the rear end collision. In the blogs to come, I will take you through the anatomy of this case through to verdict.

An article entitled, "California Going After Uninsured Motorists" discusses the State's effort to regulate uninsured drivers. The Legislature authorized the DMV to begin a systematic review of 22.4 million private vehicles registered in the state. The DMV reviews its data of registered car owners and compares their list to a list of insured vehicles (supplied by insurance companies). With this method, the DMV will be able to account for the car owners who are driving without insurance.

The State has already sent out suspension warnings to vehicle owners that do not have insurance. The vehicle owners are given 30 days to purchase insurance or show proof of insurance. If they do not respond to the suspension notice, the vehicle owner may be subjected to fines exceeding $1,000 and or seizure of the vehicle if the driver obtains a citation for driving with the registration suspended.

The article highlights the fact that, " Uninsured drivers who get in accidents can lose their licenses for one year and be subjected to civil damages to compensate injured parties or to repair property." The article also states that 14.3 percent of California drivers are uninsured and 15 percent of accidents involve uninsured motorists.

That means that if you are in an accident at present, you have a nearly 2 in 10 chance that the person involved has no insurance. Rather dramatic information, wouldn't you agree?

The San Francisco district attorney's office has arrested Eduardo Vicente and charged him with felony involuntary manslaughter and felony hit and run. According to the San Francisco police, after the collision Vicente jumped out and ran from the intersection. The police found empty alcohol containers in Vicente's car. Police are investigating whether Vicente was driving under the influence of alcohol or whether he ran a red light.

This accident raises a host of issues about San Francisco driving. The obvious here is that it is Holiday Season and drinking and driving are once again synonomous. They are a recipe for certain disaster as was evident in this crash. Be sure your uninsured motorist protection is adequate. As I have previously stated in earlier blogs, there are many uninsured drivers on the road and if one of them hits you, all you can rely on is your UM coverage. Call your broker or get on line and make sure you have adequate coverage. California minimum limits of $15,000.00 is not adequate coverage in most accidents. For the few additional dollars necessary to obtain coverage, UM insurance is the best bargain and among the most important coverages offered.

Second, if this news report is accurate, this may be one of the rare instances that, from what I have seen, that a cab driver was not at fault. Which leads us to suggest--at the risk of being redundant: wear your seatbelt especially in a cab! For whatever reason, many of us think that since we are in the hands of a common carrier, we are safe, or safer than when we drive. In this City, as in New York, nothing could be farther from the truth.

The California Vehicle Code incorporates bad road conditions in its mandates to drivers. California Vehicle Code Section 22350 tells us that a driver may only travel at a speed that is safe for the conditions at the time. Obviously, if the roads are wet or flooded, as they were during portions of this weekend in Marin County, a drivers' speed must be reduced accordingly to a speed that is safe for those road conditions. This is true even if the speed limit signs provide for a higher speed. Many drivers neglect to drive more carefully when the weather is foggy, rainy, or windy. This Thanksgiving weekend was no exception with the usual impatience, inappropriate speed for the conditions and tailgating leading to accidents. Regretably, any combination of this, particularly in bad weather, can and did lead to serious injuries.

The San Francisco Chronicle reported yesterday that the San Francisco Bay Area experienced over 90 car crashes on Sunday (11-26-06) alone (according to the California Highway Patrol). Officer Tom Stewart further explained that roughly 30 of the car crashes occurred in just one hour. According to Officer Stewart, "You can't expect to drive at 65 miles per hour and be able to stop in the same amount of time and distance as you would on dry pavement. People need to slow down."

Perhaps the most important safety device remains the seatbelt with shoulder harness. Airbags are intended as an adjunct to the seatbelt and the design of newer vehicles contemplates safety with the use of belts. In the litigation arena, defense attorneys and insurance companies will give serious consideration to the negligent contribution of an unbelted driver before paying--or not paying, otherwise valid claims.

Furthermore, CHECK YOUR AUTO COVERAGES! Many drivers on the road are either uninsured or underinsured. If they cause injury to you and have no coverage or inadequate coverage, your uninsured/underinsured motorist coverage becomes important to pay for your injuries. Be sure you have not opted out of uninsured motorist coverage and that there is a substantial limit on that coverage. I constantly speak with seriously injured people who either have no uninsured motorist coverage or minimum $15,000.00 limits. Any serious injury will exceed those limits so protect yourself by obtaining the best UM coverage you can afford.

In today's business environment, products are manufactured all over the world. The standards of many manufacturers are not what they once were, as the manufacturer and seller are primarily interested in selling the product and making their profit. This can be at the expense of our children.

We have learned that Mattel Inc. is recalling 4.4 million Polly Pocket magnet play sets because three children suffered serious injuries and were hospitalized after swallowing small magnets that fell off of the dolls. The Polly Pockets dolls and accessories contain magnets 1/8 inch in diameter. These magnets can fall out and children may swallow or inhale them. If children swallow more than one, the magnets will stick to each other, which can cause infection, blockage, or intestinal perforation.

The three children that sustained injuries from the Polly Pocket dolls each swallowed more than one magnet. The children suffered from intestinal perforation and had to undergo surgery.

As the holiday season approaches, consumers will be deciding what gifts to purchase children. To stay on the safe side, consumers can check the Consumer Product Safety Commission’s website and view a list of Toy Hazard Recalls.

First party claims against insurers do remain viable and can be raised in a variety of contexts including uninsured motorist cases, failure to pay life insurance or disability claims, homeowner policy claims and more. Significant exposure can result, including cases involving many claims from a fire or other natural disaster. California Insurance Code Section 790.03, in part sets forth the practices of insurers that are unfair. They include...

(h) Knowingly committing or performing with such frequency as to indicate a general business practice any of the following unfair claims settlement practices:
(1) Misrepresenting to claimants pertinent facts or insurance policy provisions relating to any coverages at issue.
(2) Failing to acknowledge and act reasonably promptly upon communications with respect to claims arising under insurance policies.
(3) Failing to adopt and implement reasonable standards for the prompt investigation and processing of claims arising under insurance policies.
(4) Failing to affirm or deny coverage of claims within a reasonable time after proof of loss requirements have been completed and submitted by the insured.
(5) Not attempting in good faith to effectuate prompt, fair, and equitable settlements of claims in which liability has become reasonably clear.
(6) Compelling insureds to institute litigation to recover amounts due under an insurance policy by offering substantially less than the amounts ultimately recovered in actions brought by the insureds, when the insureds have made claims for amounts reasonably similar to the amounts ultimately recovered.
(7) Attempting to settle a claim by an insured for less than the amount to which a reasonable man would have believed he was entitled by reference to written or printed advertising material accompanying or made part of an application.
(8) Attempting to settle claims on the basis of an application which was altered without notice to, or knowledge or consent of, the insured, his or her representative, agent, or broker.
(9) Failing, after payment of a claim, to inform insureds or beneficiaries, upon request by them, of the coverage under which payment has been made.
(10) Making known to insureds or claimants a practice of the insurer of appealing from arbitration awards in favor of insureds or claimants for the purpose of compelling them to accept settlements or compromises less than the amount awarded in arbitration.
(11) Delaying the investigation or payment of claims by requiring an insured, claimant, or the physician of either, to submit a preliminary claim report, and then requiring the subsequent submission of formal proof of loss forms, both of which submissions contain substantially the same information.
(12) Failing to settle claims promptly, where liability has become apparent, under one portion of the insurance policy coverage in order to influence settlements under other portions of the insurance policy coverage.
(13) Failing to provide promptly a reasonable explanation of the basis relied on in the insurance policy, in relation to the facts or applicable law, for the denial of a claim or for the offer of a compromise settlement.
(14) Directly advising a claimant not to obtain the services of an attorney.
(15) Misleading a claimant as to the applicable statute of limitations.
(16) Delaying the payment or provision of hospital, medical, or surgical benefits for services provided with respect to acquired immune deficiency syndrome or AIDS-related complex for more than 60 days after the insurer has received a claim for those benefits, where the delay in claim payment is for the purpose of investigating whether the condition preexisted the coverage. However, this 60-day period shall not include any time during which the insurer is awaiting a response for relevant medical information from a health care provider.

Certain circumstances can expose an insurer to claims in contexts many lawyers do not consider. My office has successfully brought suit against insurers who have failed to pay claims in cases involving life insurance polcies, homeowners policies including flood claims, disability insurance policies, uninsured motorist claims and more. Insurers need to abide by the law like the rest of us, and should not be able to dodge their responsibilities with the small print and creative exclusions in their policies.

As is apparent in the Karr case, these assumptions by parents, may not always be warranted. Those responsible for hiring as well as those responsible for providing references, sometimes fail to do their job properly. This lack of care is actionable negligence of the worst kind because the lives of children are truly in the balance. Innocent children are set up by those who carelessly fail to track a job applicant and obtain references as well as those that intentionally provide false or misleading references in order to rid themselves of a problem they are well aware of.
The abuse can lead to both physical injury or death, as in JonBenet's case and/or permanent severe emotional scarring.

I was the lawyer representing Randi W., a young grade school girl allegedly molested by her vice principal. The vice principal was recommended for the position by teachers and administrative personnel at schools he had previously worked at. They knew this person had had a checkered history at their respective schools but still wrote glowing letters of reference. The Fresno Superior Court ruled that even false letters of reference could not expose the author or his or her employer to liability. I strongly disagreed and took the case up on appeal.

I saw the case all the way through from the Superior Court in Fresno to the Fifth District Court of Appeal to the California Supreme Court. The Supreme Court unanimously supported our perspective that letters of reference could be relied upon for hiring purposes and that they could be actionable (Randi v Muroc (Word Doc)). This opinion has been one of the most influential decisions of any state Supreme Court in the last decade.

But when a child is injured or molested by an employee, the entire hiring process is subject to scrutiny, just as the issue has surfaced in the JonBenet Ramsey case. In the State of California, the tort of negligent hiring provides recourse for such tragedies.

I am not sure if it is because the drivers don't want to see bicyclists or motorcyclists and mentally dismiss them or because of bias against them or perhaps some other reason, but over and over again I hear the same testimony. 'I just didn't see her' or 'He came out of nowhere.' This has become a consistent theme among the many bike or motorcycle accident cases I have done over the years.

Our metropolitan areas were never very well designed to accomodate bicyclists and there are many drivers who really do not have a consciousness about bicyclists. San Francisco has taken some steps to study the cause of these accidents in the City and has implemented their solution (San Francisco Shared Lane Marking Study - PDF).

The City sees bicyclists getting 'doored' when a careless motorist has parked and is exiting his or her vehicle, or squeezed between lanes. In addition, I think that drivers of motor vehicles often have little patience for bikers, are in too much of a hurry and can hurt bicyclists badly. Bicyclists can be self centered as well, impeding traffic and frustrating motorists. The combination can be deadly.

I often wonder how it is that the most common cause of accidents involving bicyclists or motorcycles that I see is that motorists in cars or trucks do not see them--even though often times the riders are in plain view. I just finished a classic T Bone bicycle accident at the corner of Bay and Mason in San Francisco. That intersection was flat and open with no visual obstructions. My client was a triathlete and bicycled hundreds of miles each week, wearing the biking garb that many of us have become familiar with here. Sometimes I think these biking clothes themselves are like the confederate flag to some people and can trigger driver reactions alone that manifest in dumb driving responses.

In any event, my client Mark, was crossing Bay Street and a young woman new to the City was crossing Bay in the opposite direction looking to make a left turn. She looked right past Mark in his blue Postal Service lycra, on this clear sunny day and her van caught him mid calf on the left leg fracturing both his tibia and fibula midshaft. She testified that the first that she saw Mark, was when he was on the hood of her van. There was nothing between her van and Mark to impede her vision and this is simply classic for bike/ motorcycle accident testimony.

Although the fractures were the most dramatic of the injuries they were certainly not the only injuries as Mark's other knee had meniscus damage.

The good news was that the trauma surgeon at San Francisco General Hospital, Dr. McClelland is as good as it gets and he was able to insert a rod and other hardware and put Mark together again. The bad news has been that the recovery process has been slow, painful and arduous. Subsequent surgeries were necessary to remove screws and repair the meniscus and with each operation, there is down time and lost time from work--not to mention the inability to train for any triathalons or anything else.

I have worked with other triathletes and dedicated bicyclists in my practice as well as other athletes and their losses are unique and the repercussions can be dramatic. Often their lives integrate many hours of training and effort that has now come to an abrupt halt. This can result in a serious emotional response that includes, anger, depression, frustration and more. Often these changes in attitude and reactions can undermine interactions with others. Relationships often become challenging as the injured person now becomes dependant on others for care and hard to live with. He or she often has a social group that includes other athletes that are out training when the injured athlete can no longer function. If the injury is permanent, relationships can be destroyed and this aspect of the claim and injury is every bit as important as the more dramatic physical aspects.

Depending upon the severity of the injury and length of recovery time, some counseling can be helpful. Serious injuries require a tremendous amount of patience among the circle of people involved with the injured person. This includes their friends, significant other or spouse, therapists, physicians, nurses, etc.

If portions of the 25 or more foot long intestine migrate through the hole in the mesocolon made by the laparoscope, sometimes the intestine can be trapped in the hole--it can get in but is unable to get out. If incarceration or twisting occurs the patient will likely experience severe pain requiring immediate treatment, probably to include surgery. Sometimes the symptoms can include those early symptoms of sepsis, either low or high temperatures, an increased respiration rate and/or increased heart rate. Careful monitoring of a patient with this complication in the differential diagnosis is essential and care must be taken to insure the patient does not descend into septic shock.

Actually, any patient with suspected internal hernia should have that complication ruled in or out without delay. Timing can be a life or death decision since no one knows when the migrated intestine can become twisted, incarcerated and ischemic.

Estimating fetal weight (EFW) requires some highly technical interventional medicine. It requires the physician to ask the mother, 'Does this feel like a very big baby to you,' or 'Do you think this baby is larger than your others,' and if so 'How much larger than the others does it feel to you?' This is called the 'maternal guess' method of estimating fetal weight. Catchy name. We have come such a long way in medicine, haven't we. Surprisingly enough, this method is just as effective as its counterpart, Leopold's maneuver where the physician places hands on the mother's abdomen and in his or her infinite wisdom and experience, predicts the weight. Maternal guess and Leopold's are statistically similar in their accuracy.

Probably the most accurate method of estimating fetal weight is by ultrasound although ACOG does not agree. Ultrasonography offers hard information that if interpreted by well trained doctors familiar with the techniques of interpreting fetal ultrasounds, can predict a large baby by comparing certain bone lengths and head diameters. With any question of macrosomia due to one or more of the following risk factors an ultrasound should be done although it too has a significant margin of error. ACOG, one of many conservative physician groups, (American College of Gynecologists Obstetricians) recommends currently that women with diabetes and an estimated baby size of 4500 grams or larger be considered for C section. This is bumped to 5000 grams for women without diabetes. Different articles offer different statistics. For example, one article notes: "When birth weight is more than 4,500 g, however, the risk [of dystocia] is increased to 9.2 to 24 percent in pregnant women without diabetes and to 19.9 to 50 percent in pregnancies complicated by diabetes." (American College of Obstetricians and Gynecologists issues Guidelines on Fetal Macrosomia).

There may be many reasons why ACOG now has such liberal parameters but my speculation is that it is just another way to attempt to insulate physicians from medical malpractice liability--at the expense of their patients.

Statistics can be applied or interpreted in many ways and the general argument floated in the literature is that many children are born without dystocia at high birth weights and we would have to perform many more C sections to save one child. I suppose that argument depends a lot on whose 'ox is being gored', so to say. If it's your baby that is unable to use his arm from birth--and all of the very serious repercussions that go with that, the argument is not compelling, particularly if it was known that the baby was going to be large but the EFW did not quite meet ACOG criteria.