Bicycle Accidents in San Francisco - Running into an Open Car Door is Usually Not the Cyclist's Fault
A recent verdict in a medical malpractice case against Kaiser coming out of Los Angeles (Rahm v Southern California Permanente Medical Group, BC 441742) is an example of how failure to diagnose a serious or fatal condition promptly can delaying MRI can have devastating effects on a person's health and life.
In Rahm, Plaintiff started experiencing back pain when she was 16. It became worse a few months later and she went to seek treatment from a chiropractor. The chiropractor became concerned about the case of plaintiff's pain and referred her to Kaiser for further evaluation. Conservative treatment was begun but no MRI was ordered.
At one point, plaintiff 's mother laid out the history of plaintiff's conservative care and begged the doctor to order MRI. The doctor ordered MRI, which wasp performed about 4 months after Plaintiff's initial treatment with Kaiser. The MRI revealed that the cause of Plaintiff's pain was a large, aggressive malignant tumor in her pelvis known as pelvic osteosarcoma. Thereafter, Ms. Rahm had to undergo radical surgery to amputate her right leg, remove half of her pelvis, and fuse her spine.
At trial the plaintiff argued that the Kaiser physician refused to give plaintiff an MRI from March 12, 2009 until it was performed on July 2, 2009, which would have revealed plaintiff's cancer much sooner and could have spared plaintiff from losing her leg, requiring a less extensive surgery and less future care. It was also noted that plaintiff and her mother requested MRI on numerous occasions during those months, but those requests were denied, and the medical records didn't even reflect those requests.
The Defendants argued that neither plaintiff nor her mother asked for an MRI before June 2009 and that plaintiff and her mother were the ones who caused the delay in plaintiff's care because they went to acupuncture, yoga, pilates, all outside Kaiser, instead of attending physical therapy at Kaiser in April/May 2009.
Ultimately, after a very lengthy and contentious litigation, plaintiff prevailed getting an aware of over $5m in lost earnings and over $20m in future medical care.
One could only wonder if the reason for not ordering MRI at Kaiser timely in this case, assuming we take the plaintiff's version of events as true, is the same reason that we see over and over - an attempt by a large healthcare provider to save on a pricy test (usually over $1,500) whenever possible.
My answer to this question is unequivocal - absolutely. The reason for this is that you can't lose by having the x-rays or your neck and back done after the accident. If there is any risk that you suffered a serious injury to your back or neck, but you don't yet feel all the symptoms as it often happens with these kinds of injuries, getting x-rays done will allow you to find out about any disc protrusions, bulges, or herniations. That in turn will allow you to get treatment for those issues sooner and also be able to negotiate a higher settlement with the insurance company or do better in court, if your injury claim goes that far.
If the x-rays taken do not reveal any serious injuries and they confirm that you only have soft tissue injuries (i.e. contusions), then you will have piece of mind knowing that you didn't suffer any serious injuries that would require extensive treatment or surgery in the future.
One common mistake that people who are involved in accidents make is not getting x-rays done as soon as possible, because they hope that their neck or back pain will just go away. However, months or even a year or more later when they are still in pain, equal or worse to the pain they felt shortly after the accident, they finally decide to get x-rays done. If the x-rays or MRI reveal bulging or herniated discs or other serious back/neck injury, the insurance company will have a legitimate argument that during all those many months between the accident and the date when those x-rays were taken a lot of things could have happened to you that caused or aggravated the injury shown on the x-ray image. After all, if the injury was caused by the accident and it is as bad as you claim it to be, why didn't you get your x-rays done back then, on the day of the accident or shortly after. It is particularly hard to explain why you didn't get x-rays done, if you reported to the emergency room right after the accident, where getting x-rays is usually a standard procedure.
Although the above arguments by the insurance companies and their lawyers are not always effective, especially if there is no evidence of subsequent injuries, it still gives them yet another weapon to argue that you shouldn't be compensated as much as you claim you should.
On October 27, 2013, at about 1:00 am, Mr. Luth, a 58 year old gentleman was driving on I-5 heading South in Yolo County. He lost control of his vehicle for unknown reason, struck the east bridge railing. Shortly after Mr. Luth's vehicle crashed into the bridge barrier rail, a second vehicle side-swiped Mr. Ruth's vehicle. That driver said he could not see Mr. Luth's car because the headlights were broken. Mr. Luth's vehicle was then side-swipe two (!) more times until he was found lying unresponsive by an officer of West Sacramento Police Department. It was the third collision that ultimately killed Mr. Luth.
Mr. Luth was covered by a policy of underinsured motorist coverage. The deceased sister was the actual claimant and she completed all the necessary steps to seek recovery from her brother's insurance company for the wrongful death of her brother, pursuant to the UM policy purchased by Mr. Luth before his death.
At the UM Arbitration, Plaintiff argued that she was entitled, pursuant to jury instruction CACI 3921 to each of the following: loss of financial support, loss of gifts or benefits, funeral and burial expenses, loss of love, loss of companionship, loss of comfort, loss of assistance, loss of protection, loss of affection, loss of moral support, and loss of guidance. Funeral expenses totaled over $24,000.00. The UM policy limit was $500,000/per accident. Plaintiff demanded the policy limits, while the defendants' attorneys asked the Arbitrator to award $200,000.00. The case was then tried before Nicholas Lowe as Binding Arbitration leading to the above award.
Burn injuries present unique medical and legal problems that require an approach that's different from the more common injuries, such as car accidents, and slip-and-fall injuries.
Here are five useful tips to make sure that you preserve you legal claim to compensation after you suffer a burn injury when being exposed to or using a common device, such as pressure cooker, iron, etc:
1. Take pictures of your burns right after the incident, and then continue taking photos of the burned area every month or so, so that later you can show not only how bad the injury was but also how long it took to heal. If relevant, also take pictures of the device that caused your burn injury and the scene of the incident.
2. If you have residual scarring that's likely to be visible for years or forever, see a plastic surgeon and have him assess the need and the cost of any possible procedure to remove the scarring.
3. Keep a diary of all the ways in which your burn injury affected your life - from physical pain and difficulty sleeping to being self conscious about the marks on your body.
4. Do not throw away the device that caused your injury or any manuals/paperwork that came with it. This is particularly important in burn cases involving kitchen appliances, irons, etc.
5. If there are any witnesses to your burn injury, makes sure you get their contact information, so that you or your lawyer can later contact them and secure their statement about the events they witnessed. Witness statements are particularly important in cases where the defendants disputes that the incident even took place, let alone any responsibility for the burn injuries suffered.
A landlord must conduct reasonable, periodic inspections of rental property whenever the landlord has the legal right of possessions. Before giving possession of leased property to a tenant, a landlord must conduct a reasonable inspection of the property for unsafe conditions and must take reasonable precautions to prevent injury due to the conditions that were or reasonable should have been discovered in the process. The inspection must include common areas under the landlord's control.
After a tenant moves in and/or takes possession, a landlord must take reasonable precautions to prevent injury due to any unsafe condition in an area of the premises under the landlord's control if the landlord knows or reasonable should have known about it. (CACI 1006).
To make a premises liability injury claim due to unsafe conditions on the rented property, the tenant-claimant must show that the landlord was negligent in the use or maintenance of the property if (1) a condition on the property created an unreasonable risk of harm; (2) the landlord knew or, through the exercise of reasonable care, should have known about it; and (3) the landlord failed to repair the condition, protect against harm from the condition, or give adequate warning of the condition. (CACI 1003).
To establish a landlord's negligence and impose liability for injuries suffered due to the defective condition of the premises, the owner must have either actual or constructive knowledge of the dangerous condition or have been able by the exercise of ordinary care to discover the condition, which if known to him, he should realize as involving an unreasonable risk to those on his premises. The owner's negligence in such cases is founded upon his failure to exercise ordinary care in remedying the defect after he has discovered it. Louie v Hagstrom's Food Stores, Inc. (1947).
One kind of injury cases in which claimants and their attorney miss on a significant elements of recovery is potential punitive damages in a premises liability case. Imagine a situation, where a claimant trips and falls on a condition a property that has been existing for a while, and as to which the land owner has been alerted several times in the past. The owner failed to take any action to fix the condition for one reason of the other, which lead to the subject injury.
Under the law, punitive damages are available in premises liability cases, where the client can show that the defendant-owner performs or fails to perform an act that he know or should know will probably cause harm. Nolin v. National Conveniences Stores, Inc. (1979) In Nolin, the court found that the defendant's inattention to slip-and-fall danger "reflected defendant's overriding concern for a minimum expenses operation, regardless of the risks involved". Likewise, in Stoiber v Honeychuck (1980), the court concluded that the plaintiff was able to support her punitive damages allegations where she alleged that the defendant had actual knowledge of defective conditions in the premises, including leaking sewage, deteriorated flooring, failing ceiling, leaking roof, broken windows, and other unsafe and dangerous conditions.
It is often worth conducting at least a minimal investigation in a slip and fall / trip and fall cases where a claim for punitive damages can be made. The first step should be finding out whether prior similar complaints or notice of the condition were given to the land owner or their agents, and what, if anything, they have done to remedy those issues.
One of the common types of car-bicycle accidents in San Francisco occurs when the driver of a car opens his door without making sure that there are no upcoming bicycles coming his way, causing the coming bicyclist run into the door of his car and either be violently thrown back from the bike or fly forward. In many such cases, the bicyclist suffers serious injuries, including arm/leg fractures, knee injuries, and various back injuries, including bulging or protruding discs and contusions. Many such injuries take months or longer to heal, and often the deeper pain never goes away, despite lengthy chiropractic treatment and many sessions of physical therapy, among other kinds of treatment.
Generally, the driver of the car in this case would be liable for the injuries caused to the bicyclist. However, the insurance companies sometimes like to argue that the bicyclist was in part or in whole responsible for the collision, and therefore should not be compensated or should be compensated only partially for the injuries suffered. They make the same two arguments over and over: (1) the bicyclist was going too fast and therefore didn't have the opportunity to stop when he saw the car door open; and (2) the bicyclist should not have been going that close to the right to avoid the risk of running into a car door. An experienced injury lawyer will know how to deal with these arguments and how to prove that the driver is at fault for the accident, and not the bicyclist.
If one of your treating doctors has recommended a surgery, it is very important that at the very least you seek an opinion of one other reputable doctor about whether you need the surgery, the risks involved, and the potential benefits. Unfortunately, there are quite a few doctors out there who are motivate to perform surgeries for financial reasons and not because a patient really needs the procedure. Every surgery involves certain risks of complications and subsequent problems, so you want to make sure that whatever surgery you get after suffering an injury is truly necessary and is likely to benefit you rather than put you at risk without it being absolutely necessary.
To make the most out of the second opinion you are getting from a doctor, request a full set of medical records from your first doctor, including any x-rays and MRI reports and preferably images (on a CD) or films and show all the materials to that subsequent doctor. The more information the second doctor has, who has never treated or evaluated you before, the more likely he is to give you the best and the most complete advice.
Even if you don't have health insurance or your health insurance doesn't cover getting this kind of second opinion, it would be well worth paying the second doctor for a couple of hours of his work in order to determine whether you truly need that surgery. This is especially true if you are considering having a serious surgery, such as back, shoulder, or knee surgery, which may involve serious risks and side effects.
Contact us for a free, no-obligation consultation to discuss your injury claim at (415) 295-4730