Category: Traumatic Brain Injury

Mental Health Care Providers are in Short Supply

I’ve spent more than my fair share of time working with clients who suffered a traumatic brain injury.  I help shepherd them through the courts, but there isn’t much I can do in the way of providing mental health support, other than trying to be there for them to the extent I can.

That’s probably why a nice op-ed piece in the Wall St. Journal by a young Harvard Medical School student caught my eye.  The author is Nathaniel P. Morris, who wrote about “Why I’m Becoming a Psychiatrist.”  The fact that such an article is even noteworthy speaks volumes about where we are as a society regarding mental health.

head-injury-smMr. Morris cites some interesting facts.  He writes that the National Alliance on Mental Illness reports that some 44 million Americans suffer from some form of mental illness.  Suicide is the 10th leading cause of death in the U.S., killing more than 42,000/year.  “Depression and anxiety are among the top contributors to disability.”

According the Department of Health and Human Services, Morris adds, the US needs at least 2,800 more psychiatrists to address a current shortage.

What I see is that people who suffer from any form of mental disability are treated as second class citizens in our health care system.  It really is time to get out of the dark ages and recognize that the brain is an organ, just like a heart or liver, and it can become ill.  We need to eliminate the stigma mental health issues have and get serious about creating effective solutions to deal with a very real problem.

I remember vividly one former client with traumatic brain injury who was not able to recover what we had hoped (very difficult case and situation) and who last I knew, was left drifting around in society without support through absolutely no fault of his own.

That haunts me.  People like Mr. Morris give me hope.

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.

One text could be your last. April is Distracted Driving Awareness Month

National Safety Council estimates that at least 1.6 million crashes each year involve drivers using cell phones and texting.

Distracted driving is the number one killer of American teens. Alcohol-related accidents among teens have dropped, but teenage traffic fatalities have remained unchanged because distracted driving is on the rise. ( Children’s Hospital of Philadelphia/State Farm Insurance Study and NHTSA Study)

In California, all drivers are banned from texting while driving, however, accident research still indicates that drivers are ignoring this law assuming they can “multi-task.”  Sending or receiving a text takes a driver’s eyes from the road for an average of 4.6 seconds, the equivalent-at 55 mph-of driving the length of an entire football field, blind. (VTTI).

Injuries in auto accidents can vary from small scratches, to life long life-changing injuries (i.e.: head injuries, spinal cord injuries, loss of libs, etc.) to loss of your life or the life of someone you love. I posted how it how it cost one young lady her life. This teen proved in the last minutes of her life she knew right from wrong — but still committed a fatal mistake. She wrote in her final missive, “I can’t discuss this now. Driving and facebooking is not safe! Haha.”

A text message can wait, your life cannot.

Be aware. Drive safe.

 

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.

New rules on parity in mental health and substance use disorder take effect January 13, 2014

As part of Affordable Care Act (ACA) changes to health care, the Department of Health and Human Services (DHHS) has just issued their new rules regarding mental health and substance use parity in health plans.

The 206 page document is titled: Final Rules under the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA); Technical Amendment to External Review for Multi-State Plan Program.

Without wading too deeply into governmental alphabet soup, the short strokes are that the ACA calls for the same parity in mental health and substance use disorder for non-ERISA health insurance policies as have been in place for ERISA (read, employer provided) policies since 2008.

The new rules take effect January 13, 2014 (See, e.g., 26 CFR § 54.9812.)

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.

 

Unreasonable failure to pay a judgment creditor

Unreasonable failure to pay a judgment creditor

The critical question thus left pregnant but unresolved by Murphy, supra, 17 Cal.3d 937, 132 Cal.Rptr. 424, 553 P.2d 584, is whether an unreasonable, bad faith refusal to pay a judgment creditor claimant the entire amount of the judgment, after it becomes final, implicates some recognizable duty of good faith by the insurer under its policy, which was intended to benefit such a third party beneficiary. We believe so.

Although the policy in this case does not appear in the record, it may safely be inferred that it included “the usual promise to pay ‘on behalf of the insured … all sums which the insured shall become legally obligated to pay as damages because of bodily injury or property damage….’ ” (Zahn v. Canadian Indem. Co. (1976) 57 Cal.App.3d 509, 511, 129 Cal.Rptr. 286.) There can be no doubt that, pursuant to this express policy **266 undertaking, the implied covenant of good faith and fair dealing imposes a duty not to withhold in bad faith payment of damages which the insured has become obligated by judgment to pay. Certainly with respect to the insured, “The duty to so act is immanent in the contract whether the company is attending to the claims of third persons against the insured or the claims of the insured itself. Accordingly, when the insurer unreasonably and in bad faith withholds payment of the claim of its insured, it is subject to liability in tort.” (Gruenberg v. Aetna Ins. Co., supra, 9 Cal.3d at p. 575, 108 Cal.Rptr. 480, 510 P.2d 1032.)

Moreover, unlike the duty to settle that was at issue in Murphy, supra, 17 Cal.3d 937, 132 Cal.Rptr. 424, 553 P.2d 584, the duty not to withhold in bad faith payment of adjudicated claims runs not only in favor of the insured but also in favor of a judgment creditor such as plaintiff here. Section 11580 operates as part of a larger body of California law that seeks to assure that accident victims will be securely compensated through automobile policies. (See Barrera, supra, 71 Cal.2d at p. 672, 79 Cal.Rptr. 106, 456 P.2d 674.) “The public policy expressed in the Financial Responsibility and related laws requires that we construe statutes applicable to automobile liability insurance policies, as well as contractual provisions in those policies, in light of its purpose to protect those who may be injured by the use of automobiles.” (Ibid.) Accordingly, the insurer’s policy duty to pay adjudicated liabilities is in place as much to protect adjudicated injured parties from uncompensated loss as to protect the insured from personal financial disaster.

To this end, once having secured a final judgment for damages, the plaintiff becomes a third party beneficiary of the policy, entitled to recover on the judgment on the policy. At that point the insurer’s duty to pay runs contractually to the plaintiff as well as the insured. And the plaintiff having also become a beneficiary of the covenant of good faith (Murphy, supra, 17 Cal.3d at pp. 943–944, 132 Cal.Rptr. 424, 553 P.2d 584), the duty to exercise good faith in not withholding adjudicated damages necessarily is owing to the plaintiff also.

Farmers argues that this conclusion ignores and conflicts with section 11580, in that the statute in terms provides the judgment creditor only a right of action against the insurer, not a right to payment without suit. In support, Farmers cites Billington v. Interinsurance Exchange (1969) 71 Cal.2d 728, 79 Cal.Rptr. 326, 456 P.2d 982 (Billington), in which the Supreme Court noted that “under our existing direct action statute [§ 11580] an injured party is compelled to bring two lawsuits if he seeks to collect a judgment from the insurer which issued a liability policy.” (Id. at pp. 744–745, 79 Cal.Rptr. 326, 456 P.2d 982.)

The quoted, descriptive statement was made in response to an argument that allowing insurers to assert the defense of the insured’s noncooperation would unfairly require a creditor to bring two suits. Farmers’s broader argument that the rights of the class enabled by section 11580 extend no further than its bare terms is fallacious, for several reasons.

13 First, section 11580 cannot be read to create merely a judicial remedy, without an underlying right; and it is clear from the history of the *1859 statute that its purpose and effect was to create a right in the insurance contract. (See Malmgren v. Southwestern A. Ins. Co. (1927) 201 Cal. 29, 33, 255 P. 512 [Malmgren].) Indeed, as a matter of public policy, duties beyond those specifically set forth in section 11580 have been imposed on insurers for the benefit of statutory creditors. (Barrera, supra, 71 Cal.2d at pp. 668–678, 79 Cal.Rptr. 106, 456 P.2d 674.)

Second, judgment creditors granted a right of action by the statute have been repeatedly and definitively held to be third party beneficiaries of the policy. (Murphy, supra, 17 Cal.3d at p. 943, 132 Cal.Rptr. 424, 553 P.2d 584.) And, as explained in Murphy, these beneficiaries are entitled to performance, without suit, of implied covenants and duties imposed to secure their benefits, just as they are not entitled to invoke duties unnecessary, or in addition, to their receiving “all intended benefit.” (Id. at p. 944, 132 Cal.Rptr. 424, 553 P.2d 584.)

Finally, contrary to Farmers’s insinuation, a right of action for breach of the implied covenant of good faith need not be sought or found in the statute, because the actionable duty has always been implied by law from and into the contract itself. Although particular legislation might possibly supersede or “repeal” the implied covenant, it is nowise the necessary source of it. Presently, section 11580 has been authoritatively construed as recognizing, not excluding, the covenant of good faith as part of the parties’ relationship. (Murphy, supra, 17 Cal.3d at p. 943, 132 Cal.Rptr. 424, 553 P.2d 584; see fn. 7, ante.)

Hand v. Farmers Ins. Exchange (1994) 23 Cal.App.4th 1847, 1857-59 [29 Cal.Rptr.2d 258, 265-67]

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.

Long-Term Study of Head Injuries Among Athletes Kicks Off With NCAA Grant

Recognizing Traumatic Brain Injury
Recognizing Traumatic Brain Injury

A grant from the NCAA will kick off a groundbreaking, long-term study of concussion and other head injuries among athletes. The National Sport Concussion Outcomes Study Consortium, will be led by experts at University of Michigan, UCLA, and the University of North Carolina at Chapel Hill. The  Consortium will study the effects of head injuries in contact and noncontact sports in both genders through the course of a college career.

Jeff Kutcher, a clinical associate professor of neurology at Michigan who is one of the study’s lead investigators, believes it could become a watershed moment in the study of concussions. “There has been considerable attention paid to concussion recently, by the media and others, spurred by reports of National Football League players, hockey players — people who have had a long history of contact — having a very particular kind of dementing illness,” says Kutcher.  “But that story is only beginning to be told. We need to do the appropriate research to figure out the scope of the problem.”

It’s Brain Injury Awareness month. Protect your brain, it’s the only one you have.

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.

 

NFL to Refs: Be aware of head injuries

The NFL will instruct game officials to be more alert to concussion symptoms this week in the wake of the head trauma and subsequent seizure suffered by San Diego Chargers guard Kris Dielman on Oct. 23.

“We are taking the step on officials to make them alert to obvious concussion symptoms,” Greg Aiello, the NFL’s vice president of public relations, said. “We’re not trying to train the officials to be doctors, but we’re asking them to treat it like other injuries that may make it necessary to stop the game and get them medical attention, either on the field or by getting them off the field.”

Read more on ESPN.com

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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.