Archive for the ‘personal injury attorney’ Category

Short Trial Experience

In the event that you have never attended a short trial, you may be interested in reading this Blog. Two auto Insurance company adjusters attended this trial and stayed from beginning to end, and the ADR Commissioner also visited the courtroom.

One issue that came up during the trial was what I was allowed to comment on concerning my client’s medical records in closing arguments. The judge ruled that I could not comment on what the results of my client’s positive orthopedic tests for meant, because no explanation of what a positive result on those tests was stated in his records. For example, on the initial exam had a positive Soto-Hall test, which would indicate that cervical nerve root compression was present. And, he had a positive Kemps bilaterally, which would indicate facet joint involvement. The judge determined that, if I were allowed to make those comments, that I would allow me to render an expert opinion. I argued to the judge that it doesn’t make sense that, if something is in evidence, that I can’t comment on what it means. In the event that my comments are erroneous, then defense counsel can make an objection, or he can tell the jury that I am wrong, and that positive test result indicates something else. The Short Trial Judge did allow me to comment on the difference between sprains and strains, because this would be within the common knowledge of most people.

I was also not allowed to comment on purpose of therapies utilized on my client. For example, I was not allowed to comment that chiropractic manipulation is used was to correct structural misalignment and reduce scar tissue formation to help to promote prevent chronic conditions from occurring. I was not allowed to comment that the purpose of heat and cold were to bring blood flow to the injured tissues to promote healing, or that the purpose of ultrasound was to relax muscles and thus reduce pain. I could not comment that the purpose of electrical stimulation was to reduce muscle spasm and thus reduce pain. I was not permitted to comment on any of this at trial because these explanations did not appear in my client’s medical records.

If medical providers would add this information to their records, this would be of tremendous help to attorneys who do short trials, because the damages claimed in these cases do not justify the expense of calling medical experts.

One big problem in the case was the one provider would not cooperate in signing a Declaration like another provider did. We sent a declaration to this provider’ office three times. We had multiple calls to that facility that fell upon deaf ears. His bill for one visit was $1,330.00 was the subject of a huge amount of comment by the defense during the trial. Since I had no declaration from this provider, I am sure that the jury severely discounted his bill. This made a low impact case even more difficult. Hopefully, the physicians that I use in the future will understand the importance of including a statement that their charges are reasonable and customary, and their treatment was medically necessary as a result of the patient’s accident-related injuries. Perhaps if any personal injury providers are reading this blog you can modify your record keeping procedures on your auto injury patients. We all need to work together to coordinate our efforts in combat against the insurance companies on low-impact auto accident cases.

Another issue came up during this trial was that my client was sent to a pharmacy that provided medications on a lien. One of the plaintiff’s prescribed medications was Voltaren Gel 1% (Diclofenac Sodium) (five tubes at 10 grams per tube) and another was Naproxen, which the defense argued was simply over the counter Ibuprofen. Needless to say, the charges for these prescriptions were high, because they were provided on a lien. While we were waiting for the during jury deliberations one of he topic of conversation that came up in the courtroom was, what is a reasonable and customary charge for medical services these days? Prices for medical services are all over the board. The conclusion is that nobody knows for sure, yet the legal system leaves that determination to the trier of fact.

On this case, I had to respond to written discovery, attend my client’s deposition, write an arbitration brief, participate in an arbitration hearing and, go through all the preparation that is associated with a short trial. We were in the courthouse for eight hours, and I had generate all of the post-trial motions. This preceding list does not include the preparation time involved with all of these legal matters as well as the time involved with pre-litigation matters.

I completed this short trial on June 9, 2017. The jury verdict was $3,645.00 for medical specials and $1,700 for pain and suffering. The total was $5,345.00. My client’s medical specials were $6,080.00. This was a low impact case. We had no offers pre-litigation. On post-trial motions I was granted costs, which included the short trial judges fee, prejudgment interest, and attorney’s fees were granted for less than one-third of the amount of the jury verdict. As I previously mentioned, we were in the courthouse for eight hours. I had sufficient time on this short trial, so that if I were billing for at a rate of $100.00 per hour (a very low rate these days), that I would be entitled to a maximum award of attorney’s fees of $3,000.00. I really thought that I deserved a maximum attorney fee of $3,000.00, however he short trial saw it differently, and he decided that my time was worth a lot less.

We all need to get up in the morning and make our beds. This means that little things, like a short trial can make a big contribution to the life of an injured low-impact auto accident victim. It can also make some minor positive impact overall in the bizarre insurance world of low-impact-auto-injury-accidents. This trial won’t produce a make a large ripple effect within insurance industry, just because the adjusters that sat through it, and reported back to their supervisors on the outcome. They probably reported that they won this battle by using up my time. However, this trial did nothing to reduce my motivation and spirit to continue on in the battlefield of low impact auto accident cases.

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?

Low Property Damage Motor Vehicle Accidents- Why Are People Injured In These Accidents?

Anybody that tells you that people cannot be  injured in low property damage-bumper kiss type accidents is presenting a generic and biased point of view.

Human logic has a tendency to equate the severity of auto accident property damage to the  severity of injury potential produced by these accidents. This is a common misunderstanding of intuitive reasoning.

Most jurors have this bias, however they still tell us during voir dire that they can be fair and impartial jurors.

Just about everyone that has been driving long enough has rear-ended someone. It isn’t a pleasant experience to have a claim brought against you for a minor property damage car accident for which you were at fault. Personal integrity is often compromised when the person who caused the accident fails to take responsibility for their negligence. They take the position that,  Yes, I rear ended him but he didn’t get hurt.

Logically, you can’t say that neck and back injuries that develop within 24 hours after a low property damage accident have no causal connection to the accident that preceded them.

Insurance companies take the advantage of this intuitive misunderstanding in defending these cases. They use biomechanical experts, who make a good living expressing opinions that low property damage equates to no injury potential despite their lack of medical training.

If that proposition is true, then there should be a direct correlation between the accident-related  property damage and the severity of injuries sustained by the occupants of a vehicle. However, some people walk away unscathed from a motor vehicle accident where their vehicle is totaled while others are injured in accidents with low property damage.  So there is no direct correlation between property damage and injury potential.

Some people do walk away from minor property damage rear-end car accidents without injury. In my experience, however, many are legitimately injured, and some never recover from their injuries.

Do we fully understand the connection between low property damage accidents and the musculoskeletal injuries that follow them? The answer to that is, no.  However, today we know more about how people are hurt in these accidents than we did in the past.

Whiplash injuries commonly referred to as Cervical Acceleration De-acceleration trauma (CAD trauma) cause unusual spinal movement. Sudden acceleration of the occupant’s body is followed by sudden de-acceleration of the body (whiplash).  If the rear of a vehicle is not hit straight on, there can be oblique forces of rotation further complicating the biomechanical sequence of a whiplash body movements  which increases injury potential.

Torso overspeed means that energy released  form a compressed seat back during a rear-end collision can occur at the same time as forward movement of the body, which occurs during de-acceleration phase of a rear-end accident.  This recoil of the seat back adds energy to the forward movement of the body during de-acceleration and contributes to the potential to injure the lower back.  Older  governmental standards for stiffer seat backs have contributed to this injury potential sequence.

Vascoelasticity is a property of human tissue’s reaction to  forces and loads. Under  loading the tissue becomes stiffer and more brittle.   Since acceleration and de-acceleration loading and unloading, including path reversals, occur in one-third of a second, this makes  normal muscles, cartilages, tendons and ligaments more prone to injury when exposed to whiplash body movements. The most vulnerable tissues to vascoelasticity injuries are the discs, facet joints and supportive ligaments of the spine.

The problem with crash testing is that these tests cannot be done at increasing incremental speeds until an actual spinal  injury occurs.  This would increase energy imposed upon the volunteers to the point where they would actually be injured.  This approach would be highly unethical and would violate  human rights and result in legal consequences to the researchers. Cadavers and crash test dummies can’t provide us with 100% accurate crash test results. Therefore, due to these research limitations and the complexity of head and torso movement during a rear end collision, the threshold collision changes of velocity that produce spinal injury at this juncture have not be accurately determined.

The most accurate way for jurors to determine the injury potential of a low property damage rear end motor vehicle accident is to compare the plaintiff’s physical condition before the accident  to the plaintiff’s physical condition that develops after the accident. If there is no evidence of any other trauma in the interim between the accident and the appearance of spinal symptoms, then this lends credence to the proposition that the low property damage accident was the cause of the injuries claimed by the plaintiff.

Therefore, contrary to popular belief, and contrary to what intuitive logic suggests, low speed rear end impacts often do result in cervical, thoracic and lumbar spine injuries.

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.

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