Vegas Personal Injury Law Blog

In my prior blawg, “When Automobile Insurance Doesn’t Work”, I related the details of a pending case involving the “Sudden Medical Emergency Defense”.  The details of this case are reiterated as follows:

On December 30, 2004, a young man was driving his pickup truck westbound on Hacienda.  The defendant driver, prior to the accident, was driving his pickup truck northbound in the southbound lanes on Rainbow (on the wrong side of the road), ran a red light at a very high rate of speed and collided with the driver’s side of the young man’s vehicle.  The young man died almost instantly.  The collision between the adverse vehicle and the decedent’s vehicle prevented the adverse vehicle from colliding head-on with the other vehicles that were stopped in the southbound lanes of Rainbow for a stop light.

The Defendant driver claims to have experienced a seizure just prior to the accident.

The traffic accident report approximates the adverse driver’s speed at approximately sixty-nine to seventy-three (69-73) miles per hour.

The adverse driver was taken to University Medical Center after the accident. His Dilantin level was found to be below therapeutic range at the hospital.  In other words, he was not taking the correct dose of his anti-seizure medication.

In the litigation that followed this fatal accident, the Defendants (the adverse driver and his employer) asserted the affirmative defense of “Sudden Medical Emergency” or “blackout”.

The sudden medical emergency defense was established by the Supreme Court of Ohio in a case dating back to 1956, Lehman v.  Haynam, 133 N.E 2d 97 (1956). The Ohio Supreme Court stated, “Where the driver of an automobile is suddenly stricken by a period of unconsciousness which he had no reason to anticipate and which renders it impossible for him to control the car he is driving, he is not chargeable with negligence as to such lack of control.”

In that case, the Defendants Affirmative Defense stated, “The subject accident and Plaintiffs’ damages, if any, were caused by an unavoidable sudden emergency and not by Defendants’ negligence or other actionable conduct, the existence of which is denied.”

The Ohio Supreme Court reviewed the sudden medical emergency defense in the case of Roman v. State of Gobbo, 99 Ohio St. 3d 260, (2003). This involved an accident where the Defendant Walter Roman suffered an incapacitating heart attack prior to the accident. In that accident, the Roman vehicle caused a multiple vehicle car accident resulting in the death of Nino Gobbo and his wife Frances.

The “Sudden Medical Emergency” defense has not been adopted by the Nevada Supreme Court.  Public policy in Nevada dictates that it should not be adopted in the state of Nevada.  However, in several cases filed in our District Court, the Defendants have raised this defense.  It is likely to be raised in other cases.

As previously mentioned, the “Sudden Medical Emergency” jury instruction utilized by some jurisdictions that have adopted it,  centers on the issue of foreseeability.  Therefore, it would appear that a way to defeat the sudden medical emergency defense is to obtain the defendant’s prior medical records to determine if the defendant’s medical event (seizure, heart attack, stroke)  was contributed to by the defendant’s non-compliance with his physician’s recommendations for treatment of his medical condition.

My case involving the young man driving the pick-up truck, was recently the subject of a judicial settlement conference in District Court, Clark County Nevada.   The Settlement Conference Judge was the Honorable Timothy Williams who was successful in resolving the case in its entirety.

Since the basis for the defense of “Sudden Medical Emergency” is foreseeability, my discovery in this case concentrated  on the defendant’s compliance with his doctor’s orders prior to the accident.  With the assistance of a medical expert, neurologist Dr. Russell Shah, the defendant’s medical records reveal that:

1. Defendant’s Dilantin level immediately after the accident was 7.9.  The therapeutic level for Dilantin is 10.0.
2. Three months prior to the accident the Defendant’s medical records contained notations resembling petite mall seizures.  Petit mal  seizures are seizures  without loss of consciousness.  Defendant’s treating physician raised Defendant’s Dilantin  from 400 mg to 500 mg. Per day.  (Note that, if petit mal seizures did occur, the treating physician should have notified DMV, and Defendant’s drivers license should have been suspended).
3. Defendant did not follow up with a blood test as recommended by his doctor three months prior to the accident.
4. Defended did not comply with his doctor’s orders to follow-up with a neurologist as soon as possible.
5. After the fatal accident defendant’s Dilantin level was toxic on  500 mg. per day (above 20) .  10 to 20 is the therapeutic range.  Eventually after the accident the Defendant’s Dilantin was reduced to 400 mg a day, because he was toxic on 500mg.
6. The half-life for Dilantin is 22 hours.
7. Therefore, the medical expert concluded that defendant did not take his Dilantin as prescribed probably for two days before the accident, and that this contributed to a breakthrough seizure on the date of the accident.
8. Furthermore, the defendant’s medical expert did not state in his report, to a reasonable degree of medical probability, that the defendant had a seizure before the accident as opposed to the trauma of the accident itself causing the seizure.

In this case it was very helpful to have Judge Timothy Williams as our settlement judge.  Call it  luck of the draw, but his background and experience as a personal-injury attorney was instrumental in his ability to settle this case.

The right to jury trial arises by statute.  In most jurisdictions, where the value in controversy exceeds a certain dollar amount, the right to jury trial will be preserved.  Most personal injury auto accident cases that result in jury trials have some weakness.  In some cases there is a delay in obtaining medical treatment after an accident.  In some cases there is a delay in the development of symptom after an accident.  In some cases pre-existing conditions are exacerbated or aggravated and there is no new injury.  In other cases a person complains a pain without any positive diagnostic findings.  Many times we see severe injuries with very minor property damage to the involved vehicles.  Many of these difficult cases are tried and result in defense verdicts.  

Sometimes difficult cases go to trial with a surprisingly good outcome. 

Insurance companies will spend money to litigate these cases, because they know some personal injury attorneys do not want to incur the expenses to take them to trial.  Many of these difficult cases settle for a nominal amount before trial.  

Some personal injury lawyers will try these difficult cases.  It is difficult for personal injury lawyers to decide which personal injury cases that really should be tried.  

Sometimes these difficult cases go to trial, and the jury will simply not believe the plaintiff was injured.  Oftentimes, when there is a plaintiff’s verdict, the jury will cut damages for medical bills, wage loss and/or pain and suffering.  If a plaintiff goes to trial and the result is a defense verdict the plaintiff will, undoubtedly, be on the hook for attorney’s fees and costs incurred by the insurance company in defending the case.  This can result in a judgment against a personal-injury victim of tens of thousands of dollars. If there is no offer made to settle a claim, and the plaintiff  is judgment-proof, any downside financial risk to the plaintiff can be extinguished in bankruptcy.   

Insurance companies always like jury trials over bench trials (trials without a jury).   They know that their odds of a defense verdict are greater with a jury than with a bench trial.  Once one side requests a jury, the opposing side generally cannot change the case back to a bench trial.

Can a jury really be impartial?  There are certain rules that control jury conduct to keep jurors impartial.  In a jury trial, the judge instructs jurors prohibiting them from conducting any outside research while they serve on the panel.  They are prohibited from discussing their case amongst themselves prior to the close of evidence and  the start of deliberations.  They are instructed to set aside any prejudice or preconceived notions that could affect the outcome of their decision.  

Despite these judicial warnings juror conduct may not be perfect.  Jurors are not supposed to communicate with others about the case.  In this modern technological age the internet can be accessed by a cell phone.   After they leave the courtroom, despite the warnings many will seek access to internet sources and attempt to dig deeper into the case to get  information to share with their fellow jurors.  Recently on the news a juror in a federal drug case admitted to the judge and he was doing research on the case on the internet.  It was also determined that many other jurors were doing the same thing.  This resulted in a mistrial.  Jurors are not allowed to do their own independent investigations of the case.   They are limited  in their decision making by only  the evidence that is presented during the trial.  They can’t be exposed to any evidence which is excluded by the judge, and they can’t have  access to any information that can create bias or prejudice toward any party.  Some jurors just do not follow these instructions.

The legal system provides for “voir dire.”  This is a process by which prospective jurors are questioned about their backgrounds and potential biases and prejudices before being chosen to set on a jury.  Personal injury attorneys want jurors who have been involved in car accidents or have had a close family member who has been has been involved in an injury producing not-at- fault car accident.  However, it is likely that these jurors will not be selected to serve, because they will be preempted by the defense. 

Juries must deal with complex legal issues during their deliberations. They are instructed on the legal issue of proximate cause.  This legal concept is confusing to jurors.  Lawyers spend many hours in law school studying this legal concept.  Proximate cause inquires into the sufficiency of the  connection between the defendant’s action in the plaintiff’s injuries.  When there is an intervening event between defendant’s negligence and plaintiff’s injuries, the determination of whether defendant’s conduct was a proximate cause of plaintiff injuries turns on whether the intervening event was a foreseeable consequence of the defendant’s negligence.  Were there other factors that contributed to the injury?  Was there enough force associated with the accident to cause an injury potential?  Was the defendant’s negligence continuous up to the time of the injury?  How much time elapsed from the negligent act to the injury.  Expert witnesses used by both sides in auto accident cases often express opinions concerning causation and proximate cause.  It is not unusual in a jury trial to have an expert’s on both sides state diametrically opposed opinions. It is easy to see how jurors can become overwhelmed by all this and loose perspective concerning their job as jurors.

So not every act of negligence combined with the development of injury will result in an plaintiff’s verdict.  The defense will always take the position  that the injuries were not caused by the subject accident.  They will center their defense on delayed symptomatology,  pre-existing conditions and lack of injury causing potential.

One of the recent jury reforms is to allow jurors to asked witnesses questions during the trial.  This procedure is slowly gaining acceptance throughout our country.  In most cases, the jurors to write down their questions and the judge determines the admissibility of the question.  The judge will read the question to both counsel and allow them to object.  The jury and witnesses are removed from the courtroom during this process.  

Juror comprehension is strained by lengthy cases and complex evidence and intricate law.  Jurors in these cases can become dissatisfied with their participation and look for an easy decision based upon an insignificant event that occurred at trial that was not commented upon by either side.  

A jury’s decision making ability is not always entirely accurate. Once their verdict is entered, the legal system limits procedures to query jurors to determine if they correctly applied the jury instructions to the evidence and honestly deliberated on the case.  See, e.g., NRS 50.065. The general rule is that we cannot inquire into their decision making process.  Therefore, the decision to take an auto accident case to trial is not easy one.  Many juror factors come into play.  The plaintiffs need to know what they are getting into with a jury trial, so that they can make an intelligent and informed decision about any settlement offer made on their case.

Did you ever ask yourself the question, what is my responsibility for a motor vehicle  accident involving family members that lives in my household? 

Nevada Revised Statute (NRS) 41.440 states as follows:

Any liability imposed upon a wife, husband, son, daughter, father, mother, brother, sister or other immediate member of a family arising out of his or her driving and operating a motor vehicle upon a highway with the permission, express or implied, of such owner is hereby imposed upon the owner of the motor vehicle, and such owner shall be jointly and severally liable with his or her wife, husband, son, daughter, father, mother, bother, sister or other immediate member of family for any damages proximately resulting from such negligence or willful misconduct, and such negligent or willful misconduct shall be imputed to the owner of the motor vehicle for all purposed of civil damages.

Generally, a vehicle owner is not vicariously liable for accidents involving vehicle  loaned to another person under circumstances of permissive use, absent a familial relationship or other theory imputed liability.

Vicarious liability means that a person who is not present at an accident scene can be held responsible for the negligent or willful operation of a motor vehicle.  NRS 41.440 imposes vicarious liability for negligent operation by an immediate member of the family.  

This statute imposes vicarious liability on motor vehicle owners who allow family owned vehicles to be driven by immediate family members.  The Nevada Supreme Court has even suggested that  a stepfather can be an immediate family member of his wife’s an adult son. 

This doctrine represents a social policy generated in response to problems involving the by widespread use of automobiles.  Specifically, the increasing number of automobile collisions lead to more frequent situations in which the negligent driver was found to be judgment proof.  The Family Purpose Statute, enacted in 1957, expanded on the case law imposing vicarious liability upon a vehicle owner. Although there is no legislative history indicating the Legislature’s actual purpose for enacting NRS 41.440, one can surmise that the policy considerations for its adoption was  to allow  an injured party, who is free of negligence, to maintain a cause of action against a financially responsible defendant, so that the injured party can be made whole and doesn’t have to rely on public assistance for his support and for payment of his medical bills.  

Insurance policies provide coverage for any person using the insured motor vehicle with the express or implied permission of the named insured.  Where damages caused a negligent driver exceed the limits of the owner’s liability policy, NRS 41.440 provides an additional means to make an injured party whole.  (2) To encourage the owners of vehicles to exercise a greater degree of care when deciding whether to permit a financially irresponsible family member to use a family car.  A family member is generally in a far better position than a  mere acquaintance to determine whether another family member is competent to drove the vehicle. One thing to consider about this statute is that it makes no distinction between dependent and emancipated children, adult of otherwise. Because the statute refers to “other immediate members of a family”, the Nevada Supreme Court has concluded that a stepfather can be an “immediate member of a family”.  On the other hand the Nevada Supreme court did not impose liability on brother-in law who was residing in a household because, although the brother-in-law shared the household expenses, he was not supporting the family.  The court stated the at the brother-in-law was not a family member because the other members of the were not wholly or partially dependent upon him for financial support.

As a practical matter I know that through my experience in trying cases involving the Family Purpose Doctrine that judges do not like to apply this statute in situations where the limits of available liability insurance are sufficient to cover the injured party’s damages. The naming of other family members as defendants in a lawsuit involves injecting unnecessary extra parties. Although judges have expressed distaste for this law (probably because they have family members that drive their vehicles), they must still give credence to Family Purpose Statute, because it is the law in the State of Nevada.

Let’s now look at how automobile liability insurance practically applies to NRS 41.440.  

If you have a child living in your household  that drives a vehicle that is either owned by him or by you, you as a parent have vicarious liability for any accident involving that vehicle. Most parents, who are faced with the extremely high  cost of auto insurance for teenagers or persons under the age of 25, will opt to place minimum 15/30 liability coverage on the child’s vehicle. However, they do opt to carry higher limits on their own vehicles.  Their rationale for this disparity in coverage is that parents are under the mistaken belief that, if their child is involved in an accident, that their own liability coverage will provide a secondary layer of protection.  Insurance companies will not stretch liability coverage to provide the parents with protection under their own liability policies in this situation.  So, the parents are on the hook personally for any damages above the child’s liability coverage.  This is shocking to most parents, who are sued under these circumstances.  Oftentimes, parents are given erroneous information from their insurance agents.  The only way for parents to protect themselves is to take out enough liability coverage on the child’s car (or other vehicles available for family use)  to protect their personal assets, even if this means higher premiums.

 If you want to absolve yourself from vicarious liability on your children’s vehicles, the vehicle title should be put  into the child’s name, and they must be emancipated and  not residing  in your household.

Between the years of 2000 and 2005 there were over 6 million auto accidents in the United States. In each of those years approximately 2.9 million people were injured and over 42,000 people were killed. About 115 people are killed every day in vehicle crashes in the United States. In 2007 there were approximately 300 million people in the United States. Of the people killed in automobile accidents in 2007 approximately 20% were passengers. In 2007 approximately 5,000 people were killed in motorcycle accidents. Also, in 2007 approximately 4,600 pedestrians were killed in accidents involving motor vehicles. There were 255 million vehicles registered and approximately 200 million licensed drivers.

As far as Nevada motor vehicle accident deaths are concerned, about 51% were due to roadway departures, 25% were intersection accidents, 9% of the fatalities involved large trucks, And there were 77 non-motorist and bicyclist fatalities. Over 400 people are killed in motor-vehicle crashes in Nevada each year. 37% are passenger car occupants, and 32% were light truck occupants. 33% of the fatalities involved accidents were the blood alcohol level of the driver was 0.08 % or higher.

The motorists advocacy group AAA reports that accidents cost $162 billion each year. The cost of auto accidents to each American is more than $1,000 a year. Also, according to AAA car accidents involving drivers 15 to 17 years of age cost society more than 34 billion in medical expenses, property damage and related costs in the year 2006. 15-18 year old drivers were involved in 974,000 crashes that injured 406,427 people and killed 2,541. According to the Center for Disease Control motor vehicle crashes are the leading cause of death among U.S. teens, accounting for 36% of all deaths in this age group.

So, what can be done to protect motorists from injury and death caused by motor vehicle accidents? The answers to this question are as follows:

1. Don’t’ drink and drive. Don’t ride in a car when the driver has been drinking.
2. Require your teenagers to enroll in driver safety programs.
3. Drive large vehicles. Full sized passenger cars weighing over 4000 pounds have a lower injury and fatality rates.
4. Lower your speed. Speed kills.
5. Practice defensive driving.
6. Stricter enforcement of traffic laws.
7. Make drivers who cause accidents criminally and civilly responsible.
8. Lower the center of gravity on Vans, SUVs, and pick-ups to prevent roll over accidents.
9. Incorporate some form of roll cages in vehicles.
10. Incorporation of more safety glass in vehicles.
11. Restricted licenses for the elderly and those with poor vision.
12. Better highway design. Fix the bad roads before we build new ones.
13. Raise insurance rates for at-fault drivers and lower them for safe drivers.
14. Better DMV reporting of traffic infractions to insurance companies.
15. Use of and incorporation of safety equipment such as seat belts, air bags, side curtain air bags, crumple zones and energy absorbing bumpers.
16. Don’t drive if you’re tired.
17. Raise the driving age to 19.
18. Require drug and alcohol testing for all traffic infractions.

I’d appreciate any comments you have on this important issue.