Category: Elder Abuse

How Lawsuits Can Help Solve Problems

One of the great things about living in America, is we have something called “the rule of law.”

So, just what is that?

Well, in the U.S., instead of having a king sitting on a throne, we believe “the law is king.” That means that we believe we are ruled by laws, not other men and women. “The rule of law.” It’s precious stuff, friends.

So, what does any of that have to do with lawsuits.

Well, it turns out, that people just living their daily lives, are going to have problems that come up in dealing with other people.

There’s two ways to solve problems having to do with money, property or your person, what we call “civil” problems.

One is something called “self help.” In other words, if your neighbor built a high fence and you don’t like it, self help is taking a saw and cutting it down without permission.

Only we learned a long time ago that self help causes all kinds of problems. If you don’t believe me, try cutting down your neighbor’s fence and report back to me what happens. No, just kidding. Don’t do that. Self-help isn’t really all that helpful.

The other way to solve civil problems is something called a civil justice system.

When someone wants to solve a problem using the civil justice system, they file papers asking for some kind of relief. That’s basically what a lawsuit is. Pretty simple, huh?

Now, there is plenty of debate these days about whether there are too many lawsuits, or too few, and all that kind of stuff that I know you hear about all the time.

But, the truth is, when you have a civil problem, it become real important to you that someone can help you solve that problem in the fairest, least expensive and quickest way.

Now, I’m not here to give you legal advice and there are differences in how courts work in each state and in the federal system. Still, spend a little time with me and I think I can tell you some things that you didn’t know before and, hopefully, will help you with whatever problem you need to fix.

 

Bill Daniels is a trial lawyer and shareholder with the law firm of DANIELS LAW in Sherman Oaks, CA.  A graduate of Loyola Law School of Los Angeles, he is a former member of the Consumer Attorneys Association of Los Angeles Board of Governors, a founding member of Loyola’s Civil Justice Program and a past president of the Encino Lawyers Association.  Since 2007, he has been named a Southern California “Super Lawyer” by Los Angeles Magazine.  Mr. Daniels focuses his practice on serious personal injury, insurance and employment. For information, visit our website at www.daniels.legal or contact us through e-mail: Info@danielslaw.com.

 

Defective Product Litigation and Injury Lawsuits

On the surface, product liability would seem to be a pretty cut and dry area of the law and being a litigation attorney may not seem super exciting. I mean it all seems like common sense. Some manufacturer or seller creates or distributes a product, a consumer purchases it and is injured, or perhaps even dies as a result of using it and naturally the manufacturer is automatically responsible for said injury and attempts to make things right. However, this area of law has many pitfalls that await consumers who have been harmed and for the inexperienced personal injury attorneys who try these cases.

Filing a Product Liability Lawsuit

According to some estimates, injuries, deaths and property damage from defective and recalled products cost the public more than $500 billion each year. Recently, a man in San Jose was awarded a $9.8 million judgment in a product liability case involving a surgical stapler that caused him grave bodily harm. Thus, product liability cases, unfortunately, are not an insignificant part of the legal system. In this case, without the proper legal counsel as to the circumstances, criteria and time limits involved in filing suit in a personal injury claim for product liability,it could have ended even more tragically for this person. Knowing when to file a case is one of the first steps to succeeding in personal injury cases involving product liability. In the state of California, for example, an action must be brought within two years from the time when the injury occurred. Here are some other things to know when filing a personal injury claim involving a defective product:

Establishing liability in personal injury cases involving a defective product

There are four legal means for establishing liability in personal injury cases involving a defective product:

  • Negligence: This is when expected, reasonable care is not taken and an obligation to do so exists. Negligence can occur when defective partsor improper assembly result in some injury.
  • Breach of Warranty: This is when a seller fails to uphold a claim or promise regarding their product.
  • False Advertising: This is when a consumer is misled into believing that a product is safer than it actually is.
  • Strict Liability: This is when the manufacturer or seller of a defective product is responsible for all injuries occurring from the use of the product. This also means that everyone involved in the making of a consumer product is potentially liable for any personal injury that results from using the product.

Obviously, manufacturers and sellers never mean to harm consumers with the products they create or distribute. However, intent is irrelevant when you suffer an injury and are required to pay hospital bills or when a loved one is struck down through no fault of his or her own. How can you be made whole after you are harmed by faulty—even deadly—products? We are Daniels Law, a Hollywood law firm that specializes in all areas of personal injury including the very complicated area of product liability. We are familiar with all aspects of product liability and can inform you as to your time limits to file and the types of product defects (design, manufacturing errors and false advertising) there are. We know that the cost to life and limb in these cases can be inestimable.

Bill Daniels is a trial lawyer and shareholder with the law firm of DANIELS LAW in Sherman Oaks, CA.  A graduate of Loyola Law School of Los Angeles, he is a former member of the Consumer Attorneys Association of Los Angeles Board of Governors, a founding member of Loyola’s Civil Justice Program and a past president of the Encino Lawyers Association.  Since 2007, he has been named a Southern California “Super Lawyer” by Los Angeles Magazine.  Mr. Daniels focuses his practice on serious personal injury, insurance and employment. For information, visit our website at www.daniels.legal or contact us through e-mail: Info@danielslaw.com.

Elder abuse is something more than medical negligence

Personal injury law includes work in the elder abuse area and it’s important to understand that, in California, the remedies for elder abuse are much stronger than we are allowed for medical malpractice.

In general, California law is restrictive when it comes to medical malpractice. Under the MICRA statutes, general damages (meaning pain and suffering) are limited to no more than $250,000 no matter how horrible the injury.

Attorney fee caps also limit the amount you can pay a lawyer under a contingent fee contract, which means that unless you are able to pay by the hour, your choices for representation are limited, if you are able to find a lawyer willing to take your case at all.

The California legislature provided some relief from these restrictions in the case of elder abuse, but with some caveats.

Our Supreme Court explained in Delaney v. Baker (1999) 20 Cal.4th 23, that where a doctor, hospital or nursing home are reckless in their care of an elder (defined as someone 65 years of age or older or a dependant adult), then the MICRA limits do not apply.  Discussing the meaning of Welfare & Institutions Code section 15600 et seq., the court said:

“In order to obtain the remedies available in section 15657, a plaintiff must demonstrate by clear and convincing evidence that defendant is guilty of something more than negligence; he or she must show reckless, oppressive, fraudulent, or malicious conduct. The latter three categories involve “intentional,” “willful,” or “conscious” wrongdoing of a “despicable” or “injurious” nature. (Civ. Code, § 3294, subd. (c); see also College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 721 [34 Cal.Rptr.2d 898, 882 P.2d 894].) (4 ) “Recklessness” refers to a subjective state of culpability greater than simple negligence, which has been described as a “deliberate disregard” of the “high degree of probability” that an injury will occur (BAJI No. 12.77 [defining “recklessness” in the context of intentional infliction of emotional distress action]); see also Rest.2d Torts, § 500.) Recklessness, unlike negligence, involves more than “inadvertence, incompetence, unskillfulness, or a failure to take precautions” but rather rises to the level of a “conscious choice of a course of action … with knowledge of *32 the serious danger to others involved in it.” (Rest.2d Torts, § 500, com. (g), p. 590.)”

I mention this because MICRA limits have definitely closed the courthouse door to many claims in California.  But where there are facts suggesting elder abuse, it’s worthwhile to consult a knowledgeable attorney to find out if there is a remedy under the law.

 

Bill Daniels is a trial lawyer and shareholder with the law firm of DANIELS LAW in Sherman Oaks, CA.  A graduate of Loyola Law School of Los Angeles, he is a former member of the Consumer Attorneys Association of Los Angeles Board of Governors, a founding member of Loyola’s Civil Justice Program and a past president of the Encino Lawyers Association.  Since 2007, he has been named a Southern California “Super Lawyer” by Los Angeles Magazine.  Mr. Daniels focuses his practice on serious personal injury, insurance and employment. For information, visit our website at www.daniels.legal or contact us through e-mail: Info@danielslaw.com.

Elder Abuse Is A Crime

  • The United States Census Bureau projected in 2000 that California’s elderly population will have doubled by 2025 to 6.4 million – a larger growth rate than any other state.
  • The California State Department of Finance claims that the number of California residents age 85 and older – those who are most likely to need nursing homes — will nearly double by the year 2030, when the bulk of baby boomers will come of age.
  • In 2005, the Office of Statewide Health Planning and Development reported that one-fifth of California’s nursing facilities did not meet state-mandated requirements for staffing levels.
  • In 2006, Centers for Medicare and Medicaid Services reported that twice as many of California’s 115,000 plus residents are placed in physical restraints as are nationally.
  • From 2001 to 2005, the California Department of Health Care Services, found that two-thirds of all reported deficiencies caused or could have caused significant harm to one of more residents in nursing homes. More than half of all complaints in nursing homes are related to poor quality of care. Eighteen percent of substantiated complaints were related to mistreatment or abuse.

By learning to recognize signs of abuse and reporting suspected cases, you can make a difference in the lives of elderly and dependent Californians. Click here for the Citizen’s Guide to Preventing & Reporting Elder Abuse

 

Statistics from State of California Department of Justice, Office of the Attorney General

Bill Daniels is a trial lawyer and shareholder with the law firm of DANIELS LAW in Sherman Oaks, CA.  A graduate of Loyola Law School of Los Angeles, he is a former member of the Consumer Attorneys Association of Los Angeles Board of Governors, a founding member of Loyola’s Civil Justice Program and a past president of the Encino Lawyers Association.  Since 2007, he has been named a Southern California “Super Lawyer” by Los Angeles Magazine.  Mr. Daniels focuses his practice on serious personal injury, insurance and employment. For information, visit our website at www.daniels.legal or contact us through e-mail: Info@danielslaw.com.

California Elder Abuse Statute is available online

The Bureau of Medi-Cal Fraud and Elder Abuse relies upon many different laws in its criminal and civil prosecutions involving both Medi-Cal fraud and elder abuse.

Click here to visit the State of California DOJ, Office of the Attorney General for links to download the Statutes.

Bill Daniels is a trial lawyer and shareholder with the law firm of DANIELS LAW in Sherman Oaks, CA.  A graduate of Loyola Law School of Los Angeles, he is a former member of the Consumer Attorneys Association of Los Angeles Board of Governors, a founding member of Loyola’s Civil Justice Program and a past president of the Encino Lawyers Association.  Since 2007, he has been named a Southern California “Super Lawyer” by Los Angeles Magazine.  Mr. Daniels focuses his practice on serious personal injury, insurance and employment. For information, visit our website at www.daniels.legal or contact us through e-mail: Info@danielslaw.com.

Stealing elderly parents’ identities a hidden, common crime

Evidence of widespread prevalence of elder identity theft represents a new wrinkle in society’s battle against this digital age crime.

Security firm ID Analytics looked at billions of credit applications and other related data recently to find people using the same Social Security number and last name, but different first names, with an eye toward determining the prevalence of child ID theft. More than 2 million elderly adults are sharing an SSN with their adult children.

Read more on : msnbc.msn.com

Bill Daniels is a trial lawyer and shareholder with the law firm of DANIELS LAW in Sherman Oaks, CA.  A graduate of Loyola Law School of Los Angeles, he is a former member of the Consumer Attorneys Association of Los Angeles Board of Governors, a founding member of Loyola’s Civil Justice Program and a past president of the Encino Lawyers Association.  Since 2007, he has been named a Southern California “Super Lawyer” by Los Angeles Magazine.  Mr. Daniels focuses his practice on serious personal injury, insurance and employment. For information, visit our website at www.daniels.legal or contact us through e-mail: Info@danielslaw.com.

As USA grays, elder abuse risk and need for shelters grow‏

They’re weak, physically or mentally disabled or both, and often at the mercy of people they depend on the most: relatives and caretakers.

They’re the nation’s fast-growing elderly population, and many are prime targets for abuse — physical, financial, sexual or emotional.

Concern among the elderly and their advocates is mounting as the number of seniors soars and more of them live longer.

Read the rest of this article in USA Today.

By learning to recognize signs of abuse and reporting suspected cases, you can make a difference in the lives of elderly and dependent Californians.  Get your copy of A Citizens Guide to Preventing and Reporting Elder Abuse

Bill Daniels is a trial lawyer and shareholder with the law firm of DANIELS LAW in Sherman Oaks, CA.  A graduate of Loyola Law School of Los Angeles, he is a former member of the Consumer Attorneys Association of Los Angeles Board of Governors, a founding member of Loyola’s Civil Justice Program and a past president of the Encino Lawyers Association.  Since 2007, he has been named a Southern California “Super Lawyer” by Los Angeles Magazine.  Mr. Daniels focuses his practice on serious personal injury, insurance and employment. For information, visit our website at www.daniels.legal or contact us through e-mail: Info@danielslaw.com.

Preventable medical error may cost US $1.32 trillion per year

The Journal of Patient Safety reports in its September 2013 issue that premature deaths associated with preventable harm to patients is now estimated at around 440,000 per year.1  Serious harm, the journal reports, “seems to be 10 to 20 fold more common than lethal harm.”

So, let’s talk in terms Americans understand: Dollars.

Using a formula published in the Journal of Health Care Finance, death due to preventable medical errors has an economic impact averaging $75,000 to $100,000 per year for an average of ten years ($750,000-$1million).2

Using that measure, preventable medical error deaths now cost the US economy between $330-440 billion per year.

To give some perspective, Stephen Friedman, a senior White House official, left government in 2002 after irking his colleagues by publicly estimating that the Iraq war could end up costing up to $200 billion, total.3

The term “serious harm” is not defined in the Journal of Patient Safety article. But in a bulletin published by one state’s medicaid administrator, serious preventable events include such things as (1) surgery performed on the wrong body part; (2) surgery performed on the wrong patient; (3) wrong surgical procedure performed on a patient; (4) unintended retention of a foreign object in a patient after surgery or other procedure; (5) patient death or serious disability directly attributable to an intravascular air embolism that occurs while being cared for in a health care facility; (6) patient death or serious disability directly attributable to a hemolytic reaction due to the administration of ABO/HLA-incompatible blood or blood products; (7) hospital-acquired pressure ulcers (decubitus ulcers) – stage 3 and 4; (8) hospital-acquired catheter associated urinary tract infections; (9) hospital-acquired vascular catheter – associated infection; (10) hospital-acquired mediastinitis after coronary artery bypass surgery; (11) falls and trauma (hospital acquired) – fractures, dislocations, intracranial injuries, crushing injuries.4

If serious harm events occur 10 to 20 times more frequently than deaths and are valued at one-tenth as much for economic impact, then the annual economic cost from preventable medical error causing serious harm is $330-860 billion.

Using that measure, we are looking at an annual cost to the US economy from deaths and serious harm caused by preventable medical error of $660 billion to $1.32 trillion per year, or 3-8% of the estimated US 2013 GDP.

Again, for perspective, the total annual cost of US healthcare in 2011 was $2.7 trillion or 17.9% of GDP.5

1  A New, Evidence-based Estimate of Patient Harms Associated with Hospital Care, J. Patient Saf., vol. 9, no. 3, September 2013.

2 The Economics of Health Care Quality and Medical Errors, J. Health Care Finance, 2012 Fall; 39(1):39-50, Andel, Davidow, Hollander, Moreno.

3  Washington Post, Iraq, Afghan wars will cost $4 trillion to $6 trillion, Harvard study says (Mar. 28, 2013).

4  Guidance Regarding Serious Preventable Events – approved May 2008, https://www.bcbsal.org/providers/adverseEvents/AlaHAGuidelines.pdf

5 National Health Expenditures 2011 Highlights, http://www.cms.gov/Research-Statistics-Data-and-Systems/Statistics-Trends-and-Reports/NationalHealthExpendData/downloads/highlights.pdf

Bill Daniels is a trial lawyer and shareholder with the law firm of DANIELS LAW in Sherman Oaks, CA.  A graduate of Loyola Law School of Los Angeles, he is a former member of the Consumer Attorneys Association of Los Angeles Board of Governors, a founding member of Loyola’s Civil Justice Program and a past president of the Encino Lawyers Association.  Since 2007, he has been named a Southern California “Super Lawyer” by Los Angeles Magazine.  Mr. Daniels focuses his practice on serious personal injury, insurance and employment. For information, visit our website at www.daniels.legal or contact us through e-mail: Info@danielslaw.com.

Some Thoughts on “No Recovery — No Fee”

I was in Fresno County on a case and picked up The Selma Enterprise to read during breakfast. Fine little paper!

Anyhow, a column titled “You and the Law” caught my eye and I thought, “Wow, this is good stuff!”

The columnist is Bakersfield attorney Dennis Beaver (661/323-7911 or Lagombeaver1@gmail.com) who it turns out writes a regular column.

Mr. Beaver graciously gave me permission to reprint his column, so here you go:

____________________________

But the Phone Book Ad Said, ‘No Recovery Fee’!

By David Beaver, Esq.

It is impossible to turn on TV, open the phone book to the attorneys section or surf the Web and not find ads for personal injury lawyers, which generally all sound pretty much the same and stress, “No recovery, no fee.”

Sounds like a great way of hiring a lawyer, doesn’t it? The ads want you to think, “The lawyer who takes my case puts in all the time and gets paid only if we get paid. For me, it’s a no-brainer, a free ride, I can’t lose. Sure, I’ll sign!”

So you phone the “800” number flashed on your screen and wind up hiring the “No recovery, no fee” lawyer, who then loses your case after years of litigation. Are you on the hook for anything?

Well, you could easily get a letter from the attorney which reads, “I am sorry that we lost your case. Now we need to talk about how you are going to pay us for …”

“Pay us? What part of the no-fee stuff means that I have to pay anything at all?” you might be thinking. And, in fact, one of the most frequent complaints to state bar associations from unhappy clients deals precisely with the meaning of the words “no fee” and the resulting confusion. So, what does “no fee” really mean?

No fee does not mean free

Ron Jones specializes in business and real estate law in Hanford and sees the public confusion as a result of two factors.

“When most people think of hiring a lawyer — let’s say, in a divorce or contract dispute — they usually are concerned with the amount that lawyer will bill for time spent on the case. If it is a personal injury matter, fees are often on a percentage basis — for example, one-fourth to sometimes half of the amounts recovered, plus costs.

“There is generally more to most cases than just the lawyer’s time,” Jones points out. “The written retainer agreement lawyer and client sign must set out clearly what out-of-pocket expenses incurred the client will be expected to pay. There is a difference between attorney fees — what a lawyer charges for time, document preparation and advice — and costs, which are other expenses incurred for the client’s benefit.”

Some example of costs

Costs can include any and all of the following, and again, we are not talking attorney time, rather, the out-of-pocket expenses which clients can be responsible for:

• Postage and shipping costs

• Photocopy and binding expense

• Travel expense, including mileage, train and airplane

• Lodging and meal expense

• Deposition and court reporter charges

• Video conferencing/long-distance telephone charges

• Expert witness fees, such as forensic accountants in divorce cases

• Private investigators

• Computerized research if the law firm is charged by the provider

• Possibly secretarial and paralegal time

• Court filing fees.

“Who pays what, under what circumstances and when, should be clearly set out in writing,” Jones observes. He describes three basic types of retainer agreements:

1) The client pays attorney fees and all related costs and expenses, such as hiring a private investigator, an accident reconstruction expert, accountant, etc.

2) The law firm covers everything and the client reimburses the law firm out of the recovery, only if there is one.

3) The client pays no attorney fees unless the case is successful, but does pay the out-of-pocket costs.

“Fee agreements where the lawyer covers all expenses related to the case are typical in personal injury cases where it is likely there is going to be a recovery. You will not normally find this in cases which have a limited chance of success or which have a low dollar value,” he notes.

“It is important for the public to understand that law is a business with a bottom line. Reasonable lawyers try to not accept cases which appear as doubtful or which have a minimal chance for success. With most personal injury cases — where the lawyer is paid a contingent fee — an experienced attorney who is good at selecting cases will only take those which will likely provide a desirable result.”

How not to be surprised

“Always read the retainer (fee agreement) very carefully,” Jones stresses. “If you do not understand the fee agreement, but are inclined to hire the lawyer, it is a good idea to take that retainer to another attorney and pay for a consultation in which it can be clearly explained to you. Also, it’s a good idea to set out in writing, that before your lawyer incurs any costs which might exceed, say, $1,000, that your approval is required.”

“Finally,” the Hanford lawyer underscores, “when you do not have a working history with that attorney and fees are expected to exceed $1,000, California law requires a written, signed agreement.”

Dennis Beaver practices law in Bakersfield and welcomes comments and questions from readers, which may be faxed to him at 661-323-7911 or emailed to him at lagombeaver1@hotmail.com.

 

Bill Daniels is a trial lawyer and shareholder with the law firm of DANIELS LAW in Sherman Oaks, CA.  A graduate of Loyola Law School of Los Angeles, he is a former member of the Consumer Attorneys Association of Los Angeles Board of Governors, a founding member of Loyola’s Civil Justice Program and a past president of the Encino Lawyers Association.  Since 2007, he has been named a Southern California “Super Lawyer” by Los Angeles Magazine.  Mr. Daniels focuses his practice on serious personal injury, insurance and employment. For information, visit our website at www.daniels.legal or contact us through e-mail: Info@danielslaw.com.

 

Norman v. Life Care Centers of America

In California, failure to follow state or federal regulations in providing elder care can trigger a negligence per se jury instruction. Meaning, at trial, the burden shifts to the nursing home to show why it wasn’t negligent.  Norman v. Life Care Centers of America, Inc. (2003) 107 Cal.App.4th 1233.

This is a powerful concept in elder abuse. Normally, the injured party has the burden of showing that the defendant was negligent for causing their harm.

What Norman doesn’t do is relieve the injured party from having to show that negligence caused injury and what the injuries were, what lawyers call “causation” and “damages.” Still, if you have an elder abuse case you are handling, or a senior in a nursing home where you suspect the care might be substandard, the regulations can help you focus your thoughts.

Bill Daniels is a trial lawyer and shareholder with the law firm of DANIELS LAW in Sherman Oaks, CA.  A graduate of Loyola Law School of Los Angeles, he is a former member of the Consumer Attorneys Association of Los Angeles Board of Governors, a founding member of Loyola’s Civil Justice Program and a past president of the Encino Lawyers Association.  Since 2007, he has been named a Southern California “Super Lawyer” by Los Angeles Magazine.  Mr. Daniels focuses his practice on serious personal injury, insurance and employment. For information, visit our website at www.daniels.legal or contact us through e-mail: Info@danielslaw.com.