News

Duty to advise clients of collateral claims

Thu, 08 Sep 2011 23:49:00 GMT

In Nichols v. Keller (1993) 15 Cal.App.4th 1672, the court held that a workers’ compensation attorney has a duty to advise a client of any potential remedies that he has,including a potential third party action arising out of his workplace accident. A recent L.A. Superior Court verdict (read here) illustrates the potential consequences that can befall an attorney who neglects that duty. In this case, the jury found that a workers’ comp attorney had committed malpractice by failing to advise his client of a potential third party toxic tort claim against the manufacturer of chemicals to which the claimant was exposed in her workplace. The jury found the lawyer-defendant liable for $2,187,600 (the value of the unfiled toxic tort case).

This verdict underscores the importance for all of us of advising clients, not just as to the claims for which we have been hired, but any other potential claims that might arise from the circumstances that caused their injuries. In the workers’ comp context, this often means referring the client to a lawyer who specializes in the type of third party matter that might be involved. Even if no viable third party claim is apparent on the surface, it is hazardous to make that assumption or even to have the client sign off on her willingness not to pursue the third party claim, without getting an outside opinion. If, after obtaining that opinion, a decision is made not to pursue the third party claim, then the client should certainly be asked to sign a document confirming his agreement with that course of action, so that there can be no confusion later on.

This principle of course applies outside the workers’ comp context as well, whenever a lawyer takes on a matter where there are potential claims that go beyond the lawyer’s area of expertise. Because specialties in law are not always as well-defined as in medicine, lawyers (unlike doctors) don’t always think about the importance of bringing in outside “specialists,” but this practice is no less important in the legal arena. Moreover, even if one has the expertise to evaluate (and reject) a potential collateral claim that the client might have, it is important to advise the client of the existence of that potential claim and obtained his written consent before deciding not to pursue it.

Personal Injury Handbook favorably reviewed

Thu, 08 Sep 2011 23:48:00 GMT

Our recently-published practice guide, Personal Injury Handbook (James Publishing), received a very favorable review in the Advocate magazine, published by the Consumer Attorneys Association of Los Angeles.
Read it here.

Another blow to personal injury plaintiffs

Thu, 08 Sep 2011 23:45:00 GMT

As we discussed in a newsletter that we sent out at the end of last year, the California Supreme Court has had before it an issue of great significance in personal injury cases, namely the proper measure of damages for past medical expenses. Unfortunately, the Court has now spoken on the issue and issued a resounding setback for plaintiffs. See Howell v. Hamilton Meats & Provisions, Inc., 2011 DJDAR 12533 (issued August 18, 2011).

The specific issue at hand was whether a plaintiff may recover: (i) the total dollar amount that his providers billed for treating his injuries or (ii) the discounted amount that the providers accepted from the plaintiff’s health insurer (or government program). After earlier Court of Appeal opinions had tilted this issue in favor of defendants, three different Court of Appeal opinions over the past two years had gone the other direction. Obviously, the issue was ripe for decision by the Supreme Court.

Plaintiff’s lawyers had some reason for optimism, as the author of one of the favorable Court of Appeal opinions was recently-appointed Supreme Court Chief Justice, Tani CantilSakauye. Unfortunately, however, elevation to the high court has somehow changed the Chief Justice’s views on this subject 180 degrees, as she joined the majority opinion in Howell.

The Court of Appeal in Howell had concluded that the discounted rates negotiated by health insurers are a benefit that plaintiffs pay for with their health insurance premiums, and, therefore, allowing a tortfeasor to benefit from the reduced rates would violate the collateralsource rule. The Supreme Court disagreed with this reasoning, concluding that: (i) a plaintiff who is insured never really “incurs” the “full price” for the health care that he obtains to treat his injuries because his insurer has previously negotiated a discounted rate with the providers and (ii) the undiscounted rates charged by health care providers do not reflect the reasonable value of their services because they are routinely reduced, both through agreements with insurers and through voluntary write-offs for uninsured patients. The latter conclusion, while perhaps not intended as such, is an extraordinary indictment of our health care system. According to the highest court of our country’s most populous state, health care providers routinely overcharge for their services.

The Supreme Court unfortunately left open an issue of great significance - whether a plaintiff may introduce evidence of the total, undiscounted bills before the jury, subject to a posttrial reduction of the awarded medical bills by the trial judge to reflect the amounts actually paid by health insurance. That has been the accepted practice since the Court of Appeal opinion in Greer v. Buzgheia (2006) 141 Cal.App.4th 1150, was issued. The significance of Greer is that the plaintiff can use the larger medical bill number as an “anchor” for a larger award of general damages.

The Supreme Court held that the undiscounted figure is not relevant on the issue of past medical expenses and that the amount paid by insurance is admissible to prove the measure of damages for past medical expenses. However, because the defendant had conceded that the plaintiff was entitled to present the undiscounted medical bill number to the jury, the Court did not reach the issue of whether the larger, undiscounted figure might be relevant “on other issues, such as noneconomic damages or future medical expenses.” It is difficult to see how both past medical bill numbers could be presented to the jury without leading to confusion or, worse from a plaintiff’s standpoint, inadvertently disclosing to the jury the fact that the plaintiff’s medical bills have been paid by insurance.

Given the Supreme Court’s conclusion that the undiscounted number does not reflect the reasonable value of medical services and is not an amount that the plaintiff has “incurred,” it doesn’t take much of an additional step to conclude that that number has no relevance at trial whatsoever. Unfortunately, confusion will rein in the trial courts until and unless the Supreme Court speaks to that specific issue. What is clear from Howell is that the plaintiff now bears the burden of determining, and presenting to the jury, the amount of medical bills paid by insurance, because that now represents the only correct measure of damages for past medical bills.

The negative impact of Greer on plaintiffs will obviously vary from case to case, depending upon the amount of the past medical bills, the amount of other damages (such as loss of earnings and future medical expenses) and the type of health insurance plan (if any) that the plaintiff has. On an aggregate basis, however, it is clear that Greer represents a huge windfall for insurance companies and self-insured defendants, at the expense of injured consumers.

Dr. Yashwant B. Giri OC Anesthesiologist Pleads Not Guilty

Fri, 17 Jun 2011 05:47:00 GMT

Image source: LA Times

Yashwant B. Giri, the OC Anesthesiologist accused of molesting patients while they were unconscious, has pled not guilty to two felony counts of sexual assault. The judge in the case also ordered Dr. Giri to cease practicing medicine. Giri faces up to eight years in prison if convicted of the crimes.

He is accused of sexually assaulting two victims, a 16 year old girl and 36 year old woman, while they underwent surgery at the Placentia-Linda Hospital

The first incident occurred in 2009, and a nurse reported it immediately but hospital officials never reported the crime to the police. It is unknown what internal disciplinary action occured.

The apparent failure of Placentia-Linda officials to report the 2009 incident is disturbing and certainly could form the basis of a lawsuit against the hospital. As the spokesperson for the Orange County District Attorney’s office has stated, had the hospital come forward with this information in 2009, it is likely that the 2011 incident (and perhaps many others) would not have occurred.

There seems to be a real potential that there are many other victims of abuse by Dr. Giri,and that many of the victims may not even know they were victimized because they were under anaesthesia at the time. Our firm handled a very similar case several years ago in which a respiratory therapist at a convalescent hospital had sexually molested a number of severely brain-damaged children. These children could not speak and could not tell anyone of the abuse that they were forced to endure. It was only because the therapist ended up confessing to the abuse that some of the victims were able to be identified. In the case of Dr. Giri, one hopes that hospital employees and/or patients will eventually be able to fill in some of the missing pieces of evidence that will allow law enforcement to seek the appropriate level of criminal punishment against this person who horribly abused the trust that his patients (and fellow doctors) had placed in him.

Authorities suspect that there are more victims and are asking those with information call Supervising Investigator Lour Gutierrez at (714) 347-8794.

Case selection - Don’t be afraid to say “no”

Thu, 26 May 2011 19:53:00 GMT

James Publishing has recently published a practice guide written by Larry and Roger Booth of our firm entitledPersonal Injury Handbook . The following is an excerpt concerning the all-important task of case selection:

“The hardest thing for any lawyer, especially a young lawyer, to do is reject a case that appears as though it might bring good money into the firm. Caught up in the hustle and bustle of practice, lawyers often are so happy to land what appears to be a good case that they do not take sufficient time to understand the facts, get to know the client, and, most importantly, fully explore the reasons to reject the case. Accepting a bad case causes several problems. The case ties up the attorneys’ money, gives them headaches, and eventually produces little, if any, income. It also ties up the attorneys’ time preventing them from concentrating on other business. A few good cases are much better than a cabinet full of problems.

Sometimes, attorneys take a bad case because they have the deluded belief that somehow they can help everyone. There are certain people you cannot help or who have problems that cannot be economically solved.

An attorney we have known for years works seven days a week, makes little money and looks 20 years older than he should. His office looks like a hurricane just hit the building with the windows open. He takes every case that somehow finds its way into his office, works like mad and produces little results. The clients do not appreciate all the effort because the final settlement, if any, is disappointing in the extreme. On the other side of the spectrum is a famous attorney we know who brags that his case load at any given time is no more than eight or 10 cases, and this is with a staff of several attorneys and a lot of clerical help. Nonetheless, his results are spectacular and he consistently makes a huge income. There is a happy medium somewhere in-between.”
Click here for more tips.

Use and abuse of automobile “black boxes”

Thu, 26 May 2011 19:50:00 GMT

The Toyota sudden acceleration litigation has focused public attention on the fact that many late model cars contain event data recorders (i.e., “black boxes) - devices that, under certain circumstances, record information about what happened in and around a vehicle in the moments before and during a crash. We are accustomed to hearing about the use of such devices in reconstructing airplane crashes, but the fact that many of us are driving around every day with these black boxes in our cars, “spying” on us as we drive to work, has come as a surprise to many.

Event data recorders (“EDR’s”) have been a hot button issue in automobile products liability cases for years. What we have recently been discovering, however, is that the use of EDR’s has now extended into dangerous roadway cases and even garden variety auto accident cases, not to mention criminal matters.

The following are some facts and considerations to keep in mind when deciding whether to seek EDR evidence and whether to cooperate with or oppose efforts by the other side to obtain such evidence... Click here to continue reading.

Matching cases with lawyers

Wed, 09 Feb 2011 20:34:00 GMT

There are a lot of potential cases that come our way that fall outside our typical practice area of catastrophic injury and wrongful death. Whenever possible, we like to refer people to other attorneys (or even non-attorneys) who may be able to assist them in some way. With that in mind, we would be interested in hearing what types of referrals people would like to receive, particularly if they involve specific niche practice areas. Contact us >

Hot off the presses!

Wed, 09 Feb 2011 20:32:00 GMT

Larry Booth and Roger Booth have written a practice guide for plaintiff’s attorneys around the country, entitled Personal Injury Handbook , that has just been published by James Publishing. The book, which was the result of over four years of work, contains hundreds of specific tips gleaned from a combined total of 70 years of legal experience, plus a variety of practice aids and forms. In addition to offering general tips on investigation, discovery and trial, the book contains chapters on 14 specific types of cases. For more information, see Jamespublishing.com.

Minor's compromise petitions

Wed, 09 Feb 2011 20:34:00 GMT

New rules for minor's compromise petitions
When a case is settled on behalf of a plaintiff who is a minor or an incompetent adult, the court must approve the settlement, including the amount of attorney’s fees. The purpose of this procedure is obviously to ensure that the guardian ad litem (usually a parent) or conservator who is acting on behalf of the plaintiff is truly acting in the plaintiff’s best interests.

Until recently, the procedure for seeking court approval was very cumbersome, even in small cases, and the rules regarding attorney’s fees were extremely restrictive. The process was controlled, to a large extent, by local rules, and many counties had rules providing that attorney’s fees were limited to 25%, except under exceptional circumstances. While we have been able to convince judges in a number of cases over the years that 25% is inadequate in a catastrophic injury case that settles on the eve of trial and has involved many depositions and expert discovery, it has always been an uphill battle. Plus, the plaintiff’s attorney is placed in the awkward position of appearing to be seeking money for his fee that would otherwise go to this client. Read Full Article >

Recovery of medical bills

Wed, 09 Feb 2011 20:33:00 GMT

Rules on recovery of medical bills.

Perhaps no issue has generated as much confusion recently among trial lawyers and judges than the question of what evidence may be submitted to a jury regarding a plaintiff’s medical bills in a personal injury case and under what circumstances a judge may reduce a jury award to take into account the amount of medical bills actually paid by the plaintiff’s health insurer. Fortunately, it appears that the California Supreme Court is about to enter the discussion and (hopefully) clarify the law.

Generally speaking, the defendant is liable for all of the harm that it has caused, regardless of whether the plaintiff is fortunate enough to have his own insurance that has covered some of the losses. The collateral source rule precludes any evidence of the fact that the plaintiff has other insurance or the payments made through that insurance.

As we all know, health insurers and government providers (such as Medi-Cal) never pay the “full price” for medical care. There are always dramatic reductions that have been negotiated ahead of time. If the actual hospital bill incurred by an injured plaintiff is $1,000,000, the health insurer may end up only paying $100,000. The question then becomes, which of those numbers represents the proper measure of damages for medical expenses. What the debate centers on is whether the $900,000 savings is a benefit that the plaintiff purchased with his health insurance premiums and ought to benefit from in his personal injury case or whether awarding the plaintiff the full $1,000,000 would represent an unwarranted windfall. [Read Full Article]

Case study: Construction accident tetraplegic

Wed, 09 Feb 2011 20:29:00 GMT

Booth & Koskoff Case Study: Fall from room renders construction worker a tetraplegic

For over 40 years, a significant part of our practice has been representing catastrophically injured construction workers. We have obtained 19 verdicts and settlements in these types of cases that exceed $1,000,000. [Learn More] While these cases have become increasingly more difficult, as a result of developments in the caselaw and other factors, we have found new ways in which continue to pursue them successfully.

Our latest seven-figure result is on behalf of Victor Carrillo, a 46-year-old roofer who fell 15 feet and was rendered a tetraplegic. Victor was working with a co-worker, laying out roofing material, when he stepped towards the parapet wall along the edge of the roof and his foot became stuck in a hole of some sort. While attempting to dislodge his foot, he stumbled, lost his balance and fell off the roof... [Read Full Article]

“Tort Reform” propaganda

Wed, 09 Feb 2011 06:48:00 GMT

“Tort Reform” propaganda not supported by the facts

Any trial lawyer who has picked a jury during the past 10 years knows how prevalent these views are, and how strongly they affect efforts to get justice for our clients.

A recent report by the Center for Justice and Democracy, however, puts the lie to this “tort reform” propaganda. Among the findings:

Data from the National Center for State Courts shows a 21% decline in tort filings from 1996 to 2005, while the number of contract cases increased by 25%.

The same data shows a 31.5% drop in the number of trials in state court tort cases during that 10-year period.

A U.S. Department of Justice study found that in 2005, plaintiffs succeeded in just 51.3% of tort jury trials. In medical malpractice and products liability cases, plaintiffs’ success rate in jury trials was an abysmal 22.7% and 20.7% respectively.

In 2005, the median jury verdict in tort cases in state court was just $24,000 and had declined by about 50% since 1992.

In other words, the number of tort cases is dropping significantly. Less of these cases are being tried, and these trials are very difficult to win. And the average size of jury awards is declining.

Yet we are supposed to believe that this is a system desperately In need of “reform” in order to protect defendants?

A concerted public relations effort by insurance companies and other business interests has convinced the public that there are too many personal injury lawsuits, particularly “frivolous” lawsuits. It is also commonly accepted that jury awards are often excessively high.

Any trial lawyer who has picked a jury during the past 10 years knows how prevalent these views are, and how strongly they affect efforts to get justice for our clients.

A recent report by the Center for Justice and Democracy, however, puts the lie to this “tort reform” propaganda. Among the findings:

Data from the National Center for State Courts shows a 21% decline in tort filings from 1996 to 2005, while the number of contract cases increased by 25%.
The same data shows a 31.5% drop in the number of trials in state court tort cases during that 10-year period.
A U.S. Department of Justice study found that in 2005, plaintiffs succeeded in just 51.3% of tort jury trials. In medical malpractice and products liability cases, plaintiffs’ success rate in jury trials was an abysmal 22.7% and 20.7% respectively.
In 2005, the median jury verdict in tort cases in state court was just $24,000 and had declined by about 50% since 1992.

In other words, the number of tort cases is dropping significantly. Less of these cases are being tried, and these trials are very difficult to win. And the average size of jury awards is declining.

Yet we are supposed to believe that this is a system desperately In need of “reform” in order to protect defendants?

Zicam litigation

Wed, 09 Feb 2011 06:50:00 GMT

We are in the midst of litigation in Arizona against Matrixx Initiatives, the makers of Zicam Nasal Gel.

On the heels of the success of the Cold-Eeze zinc cold lozenges in the late ‘90's, Matrixx hoped to carve out a niche in the market for a zinc-based nasal spray that could be marketed as a cold remedy.

The product was quite successful, even though studies did not strongly support Matrixx’s claim that Zicam reduced the severity and duration of the common cold.

Had Matrixx done some basic research, they would have learned that numerous studies had shown a connection between zinc (when delivered through the nose) and anosmia (loss of the sense of smell).

Zicam was a “homeopathic” remedy, meaning that the active ingredient (zinc) was heavily diluted. As a result, it fell within an exception to the normal rules requiring a drug manufacturer to prove to the FDA that a medication is safe and effective before it can be marketed.

Sure enough, within a short time after the launch of ZIcam Nasal Gel, complaints of anosmia began pouring in. A first wave of litigation resulted in a mass settlement of hundreds of cases in 2006. Matrixx altered the bottle design slightly, but kept marketing the product.

Finally, in June 2009, the FDA -- which had received over 100 anosmia complaints associated with Zicam -- intervened and ordered Matrixx to either submit a new drug application or recall the product.

Matrixx chose a recall, while continuing to market zinc lozenges and non-zinc-based cold and allergy remedies.

There are now hundreds of cases pending in Arizona state and federal court that are in the early stages of discovery. In the meantime, we continue to review potential new cases, focusing on those in which we can prove that the plaintiff took Zicam, an ENT has diagnosed anosmia, and other possible causes of anosmia can be ruled out.

In the news

Wed, 09 Feb 2011 06:51:00 GMT

We are currently handling a road design case against the County of San Diego, which recently was the subject of local press coverage, click here to read.

The case focuses on a chronic flooding problem on a heavily traveled, high-speed road in the northern part of the county.

We represent the parents of a young Marine stationed at Camp Pendleton who died when her vehicle hydroplaned while passing through the flooded area.

New website launched

Wed, 09 Feb 2011 06:41:00 GMT

We’re proud of the work we put into both the design and content of our new website. It was long overdue and better reflects where we are with our practice.

Website visitors now gain a better understanding of our specific practice areas and can easily review our results. We invite you to visit us online at www.boothkoskoff.com