Archive for the ‘bodily injury’ Category

Las Vegas Metropolitan Police Department Will Not Respond To Non-Injury Fender Benders

The Las Vegas Metropolitan  Police Department announced Monday, February 24, 2014, that beginning March 3, 2014,officers will no longer be responding to minor non-injury fender bender car accidents.

Metro Police says officers are being stretched too thin, trying to get to these types of crashes.  According to Metro Police, an average of 250 man-hours per week is dedicated to these types of wrecks.

Officers will continue to respond to injury accidents and hit-and-run incidents.  They will also respond when a driver in a wreck refuses to exchange insurance information.

Almost everyone knows that fender bender accidents do produce injuries.  The problem with this new policy is that many spinal musculoskeletal injuries do not manifest their symptoms until 24 to 48 hours after involvement in a traumatic event.  Often these musculoskeletal spinal injuries involve nerve root irritation or spinal disc involvement as a pain generator and lead to expensive treatment and diagnostics.  Some people become chronic from these injuries.  This new Metro policy degrades the injury producing potential of fender bender accidents.  Although the police reports and accompanying citations issued by Metro is not 100% conclusive to insurance companies in confirming liability for an accident, they go a long way in resolving an insurance company’s determination of the liability aspect of a claim, so that property damage claims can be resolved in a expeditious manner.  The new Metro policy will mean that accidents investigated by insurance adjusters will take longer.  Accident victims whose vehicles are dangerous to drive, are illegal to drive, or are non-driveable will be either forced to drive their unsafe, illegal and/or damaged vehicles or be without transportation in cases where victims do not carry their own rental coverage or cannot afford to pay their deductible to have their care repaired through their own insurance.

So who makes the decision that the accident is a “non-injury fender bender?”  How will Metro decide if an accident is an injury producing accident?  For Metro to respond to an accident, does a victim need to be transported from the accident scene to the hospital, thus incurring medical bills for the transport, hospital, ER doctor and radiologist?  The bills for emergent care can average at least $3,000 to $5,000.

The number one reason that most residents of Las Vegas get involved with Metro is their involvement in a motor vehicle accident.  So, if it now takes 250 hours a week to investigate all minor traffic accidents, that doesn’t seem like a lot of time and manpower to devote to traffic accident investigation.

If you have one of these non-investigated fender bender accidents, the adverse insurance company will most likely deny the accident injury claim because there is no traffic accident report.

If injuries arise from these accidents and these cases go to trial, a jury will probably be influenced by the fact that the accident wasn’t investigated by the police and impliedly reduce the significance of the accident.

Accident victims will need to hire attorneys to initiate more litigation to resolve these claims.  Under this new policy, Metro will lose revenue because traffic citations will not be issued to the at-fault drivers.  Even minor traffic violations now have fines in the $200 to $500 range.  If it takes an officer  two (2) hours to investigate an accident, the citations issued are compensation back to the City for the use of the officer’s time.

Because of the current economy, a great percentage of drivers on our roads have no insurance or they have expired or lapsed insurance.  The fines on these “no insurance” tickets are high.  In order to reduce the ticket from a fine above $1,000.00, the uninsured driver must obtain insurance after the fact.  This makes uninsured drivers obtain insurance which is a benefit to everyone.

Metro charges $10.00 for a copy of a traffic accident report.  The two insurance companies will order one and the drivers and injured passengers usually pick one up.  Certainly, the attorney representing the injured party has to order one.  This is additional revenue to the City.

If other cities are not investigating minor accidents, this should not be the standard in Las Vegas.  The general rule is that if the accident is not your fault then you want the police to investigate.  If the accident is your fault, don’t involve the police, if that is possible.

I know that there are a certain percentage of motor vehicle accidents where the parties decide to exchange information and don’t call Metro.  In these cases there is no ability to take written statements and document the facts of how each party describes the accident at the scene, when their  memory of the events is at it’s freshest.

Let’s talk about safety.  When there is a car accident out on the street traffic will still be  flowing.  Of course, you don’t want to move the vehicles until information is gathered and photographs are taken.  This creates a dangerous situation because law enforcement is not there at the scene to direct traffic.

Let’s talk about time.  Now, on most uninvestigated accidents, the parties are required by state law to file a station report of accident at a Metro substation or a SR1 form with the Department of Motor Vehicles.  This takes time.  Your time should be as valuable as traffic officer’s time.

It is likely that on uninvestigated accidents that there will be two (2) divergent reports of the accident after a time lapse which occurs when the drivers involved file their own reports.  It is a crime to give a false statement to a police officer, so having an officer at the scene promotes truthful reporting by the involved parties.  These accidents aren’t going to be reported accurately, and there is no way to reduce bias in self-reporting an accident unless an officer is present.

How will the new policy reduce fatal accidents?  All of this according to Metro is supposed to allow police to proactively enforce traffic laws in hopes of bringing down the number of fatal crashes.  However, if you are ticketed for an accident, this should cause the sensible person to reevaluate their driving habits so that the distraction (accidents are always caused by some type of distraction) that cased the instant accident does not cause another more serious accident.

How will the new policy reduce fatal accidents?  This new policy by Metro is bad for everyone.  Previously, Metro adopted the policy that it does not respond to motor vehicle accidents that occur on private property.  That policy makes those property damage claims and/or injury claims much more difficult.  I know that Metro’s budget has experienced cuts because of current economic conditions.  However, the investigation of minor property damage traffic accidents should not be eliminated.  Many criminals are taken off the streets because of minor accidents.  They may have bench warrants for serious crimes, suspended or revoked driver’s licenses, or they may be fugitives from justice skipping bail.  There may be illegal contraband in vehicles that can be seized.  If one party to an accident was drinking before an accident, then the investigation will take that driver off the street so that he can’t cause another accident.

Obviously, Metro has brought attention to their budget cuts by adopting this new policy.  I don’t see how this new policy promotes safety and prevents additional accidents, because when people causing accidents know the police won’t be involved, they are most likely to leave the scene or be inclined to give incomplete or false information to the victim.

Did you know Metro no longer investigates house burglaries?  The victim must fill out his own report.  What service will be cut next?

Legal Liability of Physical Education Teachers and Coaches

Prior to becoming an attorney, I taught high school physical education in Western Pennsylvania for 12 years. I also coached  gymnastics and track.  I have a masters degree in the  scientific basis of physical education and sports.  I then came to UNLV to work on my doctorate in Education Administration.  I taught physical education classes at UNLV for two years prior to entering law school.

My education and experiences in these areas gives me the unusual background which enables me to comment on the topic of legal liability of physical education teachers and coaches.

The thing that exposes physical education teachers  and coaches to  more  liability than classroom teachers is “movement”.  The amount of student movement in the classroom is limited; therefore, the classroom teacher does not have the liability exposure of a PE teacher or coach.  Add to that the fact that PE teachers and coaches deal with many students moving at the same time. We also have projectiles mixed in with his movement – such as baseballs, softballs, footballs, tennis balls, discus, shot-put, javelin,  etc. – which can cause injuries.   We also deal with various instruments that propel these projectiles to high speeds.  These include bats, golf clubs and  tennis rackets, etc.  You get the picture.  So, because of “movement” the chance of  injury to  our students and athletes is exponentially higher than the liability of the classroom teacher.

The premise of physical education is that movement of the human body carries with it certain physical,  social and emotional benefits.   So there is no way to eliminate movement form what  coaches and PE teachers do.

Furthermore, your facilities are of greater size than that of classrooms.  There is more areas for PE teachers to cover and supervise.  Your facilities include both indoor and outdoor areas.

Many of you also must deal with the presence of water in the form of swimming pools and showers.

Obviously, no students or athletes should ever be left in a swimming pool without teacher or coach supervision.  A swimming pool should remain locked when not in use and the teacher or coach should be the first person in the pool and the last person out.  The danger of drowning and slips and falls goes hand-in-hand with pools and shower facilities.

It is my position that a PE teacher should be the first person into a gym or pool, especially when equipment is present which can create a potential for injury.  The gym or pool should always remain locked when not in use, and the PE teacher and coach should be the last to leave.  This rule is probably a bit  idealistic; however I strongly believe that it is necessary.

Accordingly, in order to prevent accidental injury to our students and athletes, PE teachers and coachs must be concerned with safety of students and athletes much more so than the classroom teacher.

The law that applies to the primary liability exposure  of a PE teacher or coach is “negligence”.  Under the law of negligence a person has the duty to act in a reasonable manner when it come to the safety of others.  If you create an unreasonable risk of harm (by omission or by commission) and somebody gets hurt, your are responsible for the injured person’s damages in the form of medical expenses, loss of income and earnings capacity and for intangible damages for physical and mental pain and suffering.

In Nevada , if you are acting within the course and scope of your employment with a city, county or the state, you have a statutory  limit on your liability exposure of $75,000.00.  However, teachers and coaches get involved with little league, midget football, AAU sports programs, etc.,  where they are not in the course and scope of your employment with a public school. Thus, not every liability exposure will be protected by the statutory cap on damages. Private school teachers do not have the benefit of this liability cap.

When we coach activities outside the public school, we often use our personal cars to transport students. This exposes us to potential liability for injuries caused by our  negligent driving.

If an at fault accident occurs while we are working for a public school, then the school district will pay for damages, subject to the statutory cap.  You will be protected by the cap and you  won’t have to pay, so long as you were  in the course and scope of your employment. When you are involved in coaching or teaching an activity outside of the course and scope of your employment, your assets  are personally exposed.

Therefore,  it is important to be concerned about safety, because following reasonable safety procedures is your duty of reasonable care to your students and athletes.  Anytime that you cut corners on any safety procedure, you can be exposed to potential liability.

If you belong to any professional association, they may offer liability insurance at a nominal rate.  Volunteer coaches may be protected by liability coverage of the league in which you involved.   If you coach, you should inquire into these types of liability insurance protections which may or may not be available to your athletic association or league.

There are many basic rules that can protect you from liability.  These are too numerous to list, however the following are some of the more basic safety rules:

 

  1. Don’t hide in your office between classes.  You have the responsibility to supervise your students.  They can wander off and get involved in all sorts of mischief.  Students can get into fights and altercations with other students which may require your intervention.  There  are many entrances and exits to a PE or athletic complex.  You and your fellow teachers and coaches have  the duty to provide reasonable supervision  these entrances and exits.  This will involve the establishment of a plan and cooperation of your co-workers.
  2. Always keep your pool and gym locked between classes.  Don’t give your keys to students.  These areas should be locked between classes especially when there is equipment set up in the gym. Always check the pool and gym for the presence of students and athletes before you lock the doors.
  3. Mats should always be under any equipment which creates the possibility that as student may fall.  The greater the danger the more matting is required. Never allow the use of any equipment without adequate matting.
  4. It is my strong opinion that some activities should not be taught in PE classes.  Gymnastics should be limited to basic tumbling and basic vaulting skills.  If vaulting activities are used then students must be individually spotted.  Most students do not have the strength to perform skills while hanging or supporting their bodies with their arms.  Therefore there exists the likelihood of falls. If the fall occurs while some is in an inverted position this can cause is spinal injuries, paralysis and even death.  Trampoline (including various types of mini tramps) should ever be taught in PE classes.  If these tramps are used in extracurricular activities such as cheerleading and gymnastics, make sure that there is you have insurance to cover accidents.  You may be surprised that many insurance companies  won’t insure trampolines, or the premium for this coverage may be unaffordable.
  5. For example, remember that even innocent activities  like softball can be dangerous if basic rules are not followed. When there is a fly ball students must be instructed to call for it, and the persons not calling for the catch should back off.  There is always a risk of collision between students  especially when you have 30 students on the fielding team and not just 9.  Head to head collisions and collisions between large and small students carry with them the likelihood of serious injuries.  Remember that there are safety rules that apply to all sports.
  6. Check surfaces where water is present to determine if slip resistant surfaces are inadequate or worn.
  7. Do an inspection of your facilities on a monthly basis.  Report any maintenance repair problems to your maintenance department and to the school administration.
  8. Use appropriate safety equipment for each sport or activities.  If eye protection is reasonable then make provisions to obtain and to use it.
  9. Keep non-participating students out of harms way.
  10. If a student gives you a doctor’s excuse follow the physicians instructions.
  11. Go over safety rules with your students for each new sport or activity.
  12. Do not use strenuous exercise to discipline or punish students. Consult with your school nurse to determine if you have any students who have medical conditions that cannot tolerate any strenuous activity. Never have any physical contact with any student, unless he your safety and the safety of your students is in jeopardy.

When I taught PE, our high school district established a safety committee.  One person from each department was assigned to identify and report  safety hazards to buildings and grounds (maintenance) and to the superintendent.  We identified hazards and immediately repaired them so that they would not be a source of potential injury.

Risk management is concerned with the identification, assessment and control of risks that can endanger students and cause injuries.  Identifying risks is critical to safety.  Risk probabilities can be dividend into he following categories:

 

  1. Very likely to occur- high potential for serious injury.
  2. Some chance of occurrence- high potential for serious injury.
  3. Small chance of occurrence- high potential for serious  injury.
  4. Very little chance of occurrence- high potential for serious injury.

These should be addressed immediately and given high priority.

When the risk involves a medium and low potential for serious injury, these potential risks should be immediately addressed but should have less priority of than those risks which have the potential for serious injury.

Much of what is presented in this article may seem like common sense procedures to you. If this article does not trigger any proactive response from you, go back and read it again, because when it comes to safety, there is always room for improvement.

There always will be risks that cannot be fully identified, prevented or contained. Chances are that you will not be held responsible for those types of  risks because they are not foreseeable.  In preventing accidents decisions should be made that will prevent accidents thus mitigating your liability exposure.   Always be proactive and when it comes to preventing accidents and make sure that you have adequate insurance to protect your personal assets.

Medical Expenses in Personal Injury Cases: Reasonableness and Necessity

The purpose of damages in a civil case is to compensate a plaintiff for actual losses caused by the defendant wrongdoer. Therefore, the law provides that a wrongdoer in a personal injury case is responsible for the payment of the reasonable and necessary medical expenses incurred by the injured party as a result of the wrongdoer’s negligent or intentional acts or failures to act.

Generally speaking, the foundational requirements for the admissibility of medical bills into evidence in a personal injury case are misunderstood by many attorneys. First, the medical bills must be authenticated.  The authentication of medical bills can be accomplished by: (1) stipulation; (2) through the testimony of a custodian of records; (3) by an affidavit from the provider’s custodian of records; or (4) by the lack of objection during the disclosure provisions of the applicable rules of civil procedure such as NRCP 16.1.

To recover for his medical expenses a plaintiff in a personal injury case, such as a car accident or slip and fall injury, must present competent medical testimony that his treatment received in the form of ambulance, hospital, radiology, doctors appointments, physical therapy, chiropractic treatment,  medications, nursing services, pain management, surgery, anesthesia  and diagnostic tests were necessary as a result of the injuries caused by the defendant’s negligent conduct; and, that the cost or each item of medical expense was reasonable in amount.  These foundational requirements are separate and apart from the causation evidentiary requirements which I have covered in a prior blog.

Medical necessity means that the expense was incurred as a result of the injury caused by the defendant. Testimony by an expert witness is required to prove that a medical service was necessary.  Additionally, to meet the necessity requirement, the plaintiff may need to  present evidence to show that the medical service was standard versus experimental, appropriate and non-fraudulent, so that the bill can be admitted into evidence and the jury or judge can consider the medical bill in determining the defendant’s obligation to pay for this item medical expense.

The terms reasonable and necessary are also utilized in auto insurance policies and health insurance policies to invoke the insurance company’s  responsibility to pay for any medical expense and limit payments only to those medical bills that are both reasonable and necessary.  Many times these terms are not defined in the policy, or are briefly or unclearly defined.

Medical necessity means that the treatment was made necessary as a result of injuries from the accident, as opposed to treatment related to another medical condition. (The medical necessity requirement comes into issue when the injuries claimed are aggravations of pre-existing conditions such as arthritis, or when a plaintiff has been involved in multiple injury accidents).  In some instances the defense will take the position that, in order for medical treatment to be necessary, it must have some benefit in improving the plaintiff’s condition.

However, in some jurisdictions, when a plaintiff gives detailed description of the treatment procedures and clearly relates them to injuries from the subject accident, the medical bills can be properly admitted into evidence upon lay testimony, rather than upon the testimony of a medical expert.

Some states that have case law that holds that a defendant can receive the benefit of write-offs or adjustments deducted from a provider’s charges pursuant to insurance contracts.  Other states have adopted the collateral source rule.  The theory behind the collateral source rule is that a wrongdoer should not receive the benefit of payments made by insurance independently procured by the injured party and for which the injured party has paid  premiums. There are some states that have adopted the collateral source rule, that still give the defendant the benefit write-offs.  The argument for this position is that: (1) The plaintiff receives a windfall if he can receive compensation for write-offs; (2) No collateral source paid the written-off amounts; (3) Write-off amounts are illusory medical expenses and the plaintiff does not actually have to pay them. This position does not take into consideration that the injured plaintiff has to pay for his insurance coverage directly or indirectly (as a benefit of his employment) in order to obtain these write-offs, which is a part of the rationale for the collateral source rule.

A plaintiff also has to provide competent evidence that the cost of each medical expense is reasonable.  This means that the medical charge is customary in the medical community and is not inflated. A medical witness who testifies on the issue of reasonableness is not always required to  be a doctor, however some form of medical testimony must be presented (Medical billing witness or a nurse who is familiar with customary charges).  A doctor can testify as to medical necessity and to the reasonable and customary nature of the medical charges.  A defendant is only responsible for reasonable medical expenses, and is not necessarily responsible for the full amount charged by the health care provider for services rendered. Sometimes it is necessary, in cases where the plaintiff does not have a retained medical expert, to call as witnesses every practitioner who rendered the plaintiff medical care.  In cases where there is a doctor manages the patient’s care  and refers the injured patient for follow-up care with other providers, the referring doctor can testify as to causation of the plaintiff’s injuries as well as the reasonableness and necessity of the medical treatment provided by other practitioners, under circumstances where he is familiar with the charges for the ancillary services provided to the patient. As you can see, this saves many thousands of dollars in expert witness fees.

In order to recover for future medical expenses there must be medical testimony that states to a reasonable degree of medical certainty what future medical expenses will result from the original injury and the reasonable cost of those medical services. In the event that those medical services are projected over a lengthy period, then the cost of the future medical expenses must be reduced to present value.

The foundational requirements for admitting medical bills into evidence are not uniform. Some jurisdictions are more liberal than others and provide for the use of affidavits instead of live expert testimony.  The case law on reasonable and necessary medical expenses is not consistent, especially when it comes to collateral source issues.  There are very few cases that give a detailed explanation and discussion of the foundational requirements for the admission of medical bills into evidence.

Fitness Facility Releases – Do They Prevent Recovery In a Personal Injury Case?

Know what you are signing when you sign a release regarding personal injuries.

A few months ago I saw the staff members of my gym receiving CPR instruction. Recently, I noticed a defibrillator (AED) on the wall of my gym that wasn’t there previously. I did some research and determined that there has been litigation concerning this issue.

When you join a fitness facility, you will most likely be required to sign a Release. There are generally two types of Releases.

  1. A Release for past injury and damages is the type of document that will be signed at the end of a personal injury case. The injured party accepts some consideration (usually money) to settle his claim. The Release language prevents the injured party from bringing another claim or action against the person or entity that allegedly caused the injury, no matter what happens in the future. These types of Releases are generally upheld by the courts.
  2. A Release for prospective injury concerns an injury that may occur in the future. These types of Releases may or may not be upheld by the courts, depending on the specific circumstances surrounding the release. Notwithstanding, their validity Releases are a deterrent to litigation, and they invariably contain clauses which state that, if a lawsuit is filed, the prevailing party will be entitled to Attorneys’ fees and costs incurred in the litigation.

In one defibrillator case, the fitness facility intentionally did not require that employees be trained in the use of CPR to assist a member that may experience a heart attack. Furthermore, they did not train their employees on the use of a defibrillator, despite the fact that between 20-40 members each year experience heart attacks while at their facilities. The underlying policy was established to avoid potential liability for improperly or negligently performed medical assistance and to save the expense of certifying their staff on first aid procedures and to save the costs of the cost of the first aid equipment. The cost of a defibrillator is between $1,100 .00 and $2,000.00.

Obviously, this hands off position saved the facility a lot of money. In one case the member that suffered a heart attack while on the facility suffered severe and irreversible brain damage, was able to recover from the facility (no Release was signed In this case).

Since the installation of AED’s, lives have been saved. Fitness facilities are aware that published standards by the American Heart Association and American College of Sports Medicine recommend the use and availability AEDs in health clubs.

In another case against a fitness facility a woman, who had signed a Release was
was injured when she fell over a dumbbell that had been left off the rack in the weight lifting area. The court ruled that the Release was valid and enforceable and that it covered the incident resulting in the member’s injury, because the member’s injury arose out of the “use” of the facility.

In order for a release to be effective, it must be easy to read and must be readily noticed within the membership contract. The general rule is that if must be in larger type than the rest of the contract and that it must be in bold face type. It should not be hidden in a contract. A lay person, with normal vision should be able to easily find and notice the Release language in the contract. The waiver of legal rights cannot be hidden in fine print. The language cannot be ambiguous. If there are ambiguities in the Release language, the ambiguities will be construed against the party that drafted it. The staff employee signing up the member should explain the Release language of the contract.

Whether the release is clear and unambiguous is a question of law. This means that the judge rather than the jury determines this issue. If the Release absolves the fitness facility from “negligence”, every act of negligence of the fitness facility need not be spelled out in the contract, because it is virtually impossible to list all possible cause of accidents.

The main issue involved with Release cases is whether the particular risk of injury is inherent in the member’s general use of the fitness facility, as opposed to the maintenance of the facility. Releases are generally upheld if the injury occurs out of the member’s use of the facility
(the member drops a weight on their foot). There is a better chance of prevailing, regardless of the Release, if the member is injured by a negligent maintenance of the facility.

Releases are based on the legal theory of Assumption of Risk. Assumption of Risk means that inherent risk of injury is known to the injured party, and that he voluntarily proceeds to engage in the activity in light of the know risk.

In 1986 I had a case in before the Nevada Supreme count known as the “Flyaway” case. Renaud v. 200 Convention Center Ltd. dba Flyaway, 102 Nev. 500, 728 P.2d 445 (1986). This case also involved a Release for prospective injury. At that time there were very few published cases on this issue. The “Flyaway” facility involved a free-fall simulator. The Court stated that the Release language was based upon the legal theory of Assumption of Risk. A risk is voluntarily assumed by a person, if it is know to him; he fully appreciates the danger, and there is actual knowledge of the danger assumed. This Court stated that the knowledge of the risk in this case was a question of fact (something for jury to decide in a jury trial). The jury should consider factors such as the nature and extent of potential injuries, and the haste or lack thereof with which the release was obtained, and the understanding and expectations of the parties at the time of signing. ( Flyaway did not disclose that risk of injury associated with the use of this novel recreational facility was actually quite high).

After the Flyaway case was decided, this decision lead to the settlement of many pending Flyway cases filed in our state and federal court.

Therefore, a fitness, recreational or sports facility Release is not always a bar to recovery for an injured party.


SEO Powered by Platinum SEO from Techblissonline

Switch to our mobile site