Car Accidents

Sacramento Car Accident Victim Fights Reduced Damage Award, Part 7 of 8

December 17, 2009 | by Moseley Collins

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident/personal injury case and its proceedings.)

(More re Medi-Cal payment ruling challenge.)

However, in Olszewski v. Scripps Health (2003) 30 Cal.4th 798, 826-817, the Supreme Court expressed disapproval of restricting a tort victim’s medical specials to the amounts paid by Medi-Cal. The Court recognized that the tortfeasor escapes liability for the full amount of the medical expenses he or she wrongly caused. Such a result benefits the tortfeasor at the expense of the blameless provider and harms society as a whole. The Court urged the Legislature to remedy this inequity. Id. at 827. These policy reasons favor following the collateral source rule over the appellate courts’ disregard of that rule.

In Nishihama, supra, 93 Cal.App.4th 298, another appellate court extended the Hanif limitation beyond Medi-Cal to private insurance without distinguishing the collateral source rule. In Nishihama, the injured plaintiff’sought recovery of medical expenses which had been paid by her employer-obtained medical insurer (Blue Cross). That insurer in turn had negotiated for reduced rates (i.e. rates below what is ordinarily charged) at the facility where the plaintiff was treated. The jury awarded the plaintiff damages based on what the facility ordinarily charged. In the context of discussing whether the plaintiff could recover damages based on the hospital’s ordinary rates, the court first observed:

A plaintiff in a personal injury action is entitled to recover from the defendant tortfeasor, the reasonable value of medical services rendered to the plaintiff, including the amount paid by a collateral source, such as an insurer. As medical expenses fall into the category of economic damages, they represent actual pecuniary loss caused by the defendant’s wrong. Id. at 306.

Sacramento Auto Accident Victim Challenges Medi-Cal Payment Ruling, Part 6 of 8

December 15, 2009 | by Moseley Collins

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident/personal injury case and its proceedings.)

COURTS DISCUSSING LIEN RIGHTS HAVE IMPROPERLY ERODED THE COLLATERAL SOURCE RULE

While it appears uniform that under the collateral source rule a tortfeasor is not entitled to introduce evidence that the injured plaintiff has insurance for purposes of proving that the plaintiff has not been injured to the extent an insurer has already paid for those injuries, some appellate courts have either directly or indirectly ruled that the tortfeasor is able to introduce evidence of the amount the plaintiff’s insurer has paid in order to cap the amount of the plaintiff’s recovery. These courts have reasoned that if the insurer has a separate agreement with the health care provider to furnish medical care at a rate below what is normally charged, then that reduced rate becomes the plaintiff’s true damages for purposes of fixing his or her recovery.

The first reported case to take this path was Hanif, supra, 200 Cal.App.3d 1635. There, in the context of an action where the injured plaintiff’s medical care was paid for by Medi-Cal, the court initially explained:

Preliminarily, we note there is no question here that Medi-Cal’s payment for all injury-related medical care and services does not preclude plaintiff’s recovery from defendant, as special damages, of the amount paid. This follows from the collateral source rule.

Id. at 640.

However, without any further reference to the collateral source doctrine, the court proceeded to reason:

Huge Wage Loss At Center Of Sacramento Auto Accident Case, Part 5 of 8

December 12, 2009 | by Moseley Collins

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident/personal injury case and its proceedings.)

California’s Legislature has recognized the collateral source rule by carving very limited exceptions to that rule which are meaningful only if the rule itself exists. For example, Government Code § 985 sets forth a detailed procedure for when a public entity provides collateral services to an injured plaintiff. That section is applicable only where the public entity is a defendant. It allows the court, post-verdict, to consider giving the public entity credit for the collateral source payments, after taking evidence concerning the nature of the benefits and plaintiff’s reimbursements obligations.

The statute makes clear that “[a]ny collateral source payment paid or owed to or on behalf of a plaintiff’shall be inadmissible in any action for personal injuries or wrongful death where a public entity is a defendant.” The public entity can seek recovery of collateral benefits following a verdict which includes “damages for which payment from a collateral source listed below has already been paid or is obligated to be paid for services or benefits that were provided prior to the commencement of trial…” Id.

Likewise, the Legislature also created a statutory exception to the rule for medical malpractice defendants when it enacted it as an aspect of MICRA (Civil Code § 3333.1, et. seq.). As with the public entity exception, the Legislature crafted a compromise procedure for the evidentiary handling of the exception, and accompanied the change with fundamental changes in the structure of attorney’s fees and general damages in medical malpractice cases. Specifically, the MICRA statutes provide the plaintiff an opportunity to introduce a host of relevant and admissible evidence as to the reasonable value of the medical services provided, including not simply the billed charges, but also evidence of the premiums paid to secure health insurance benefits and other evidence of the reasonable value of those services.

Sacramento Man Challenges Damages Ruling In Car Accident Trial, Part 4 of 8

December 10, 2009 | by Moseley Collins

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident/personal injury case and its proceedings.)

THE COLLATERAL SOURCE RULE IS UNQUESTIONABLY THE CONTROLLING LAW IN CALIFORNIA

The collateral source doctrine has been the rule in California since at least 1925. Clark v. Burns Hamman Baths (1925) 71 Cal.App. 571, 575. The doctrine “expresses a policy judgment in favor of encouraging citizens to purchase and maintain insurance for personal injuries and for other eventualities.” Lund v. San Joaquin Valley Railroad (2003) 31 Cal.4th 1, 10. The California Supreme Court explained the rationale behind the rule: if the tortfeasor were allowed to mitigate damages with payments from plaintiff’s insurance, plaintiff would be in a position inferior to that of having bought no insurance, because his payment of premiums would have earned no benefit. The defendant should not be able to avoid payment of full compensation for the injury inflicted merely because the victim has had the foresight to provide himself with insurance. Id. at 10.

The Court elaborated on the related rule prohibiting the introduction of collateral source evidence, citing to Hrnjak, supra, 4 Cal.3d 725. In Hrnjak, the trial court allowed the defendant in a personal injury action to introduce evidence that the plaintiff had received insurance benefits, asserting the evidence was relevant to the plaintiff’s motives in seeking medical help and his credibility as a witness. Id. at p. 728. The Supreme Court held that this ruling was an abuse of discretion under Evidence Code § 352 because [e]ven with cautionary instructions, there is substantial danger that the jurors will take the evidence into account in assessing the damages to be awarded to an injured plaintiff.

Court Reduced Sacramento Man’s Car Accident Award After Trial, Part 3 of 8

December 7, 2009 | by Moseley Collins

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident/personal injury case and its proceedings.)

RECENT CASE AUTHORITY CONFIRMS THAT THE TOTAL AMOUNT OF A PLAINTIFF’S MEDICAL BILLS ARE ADMISSIBLE

In Olsen, supra, WL 2486789, plaintiff was injured by defendant’s motorized wheelchair and incurred over $62,000 in medical expenses. The court granted plaintiff’s motion to present the full amount that her providers billed her for treatment and denied defendant’s motion to introduce the amount actually paid. After trial, the court reduced the jury’s verdict to the amount actually paid on plaintiff’s behalf.

The appellate court held that this reduction was in error because there was insufficient evidence of what amount was paid, “written off” and remained to be owed. However, the court further held that the full amount of plaintiff’s medical charges was properly presented to the jury, citing Nishihama’s explanation that the usual rates billed was a stronger indicator of the extent of a plaintiff’s injuries than the specially negotiated rates obtained by an insurance company.

In Greer, supra, 141 Cal.App.4th at 1152-1153, the plaintiff was seriously injured in an automobile accident. His medical bills were $216,000. Plaintiff’s employer paid plaintiff’s health care providers $132,000, satisfying plaintiff’s entire medical tab. Prior to trial, defendant moved in limine to exclude evidence of medical expenses that exceeded the amount paid on plaintiff’s behalf to his medical providers.

Auto Accident Leaves Sacramento Man With Huge Damages, Part 2 of 8

December 5, 2009 | by Moseley Collins

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident/personal injury case and its proceedings.)

Second, Nishihama violates the California Supreme Court decisions of Hrnjak v. Graymar, Inc. (1971) 4 Cal.3d 725, 729, 734 and Helfend v. So. Calif. Rapid Transit Dist. (1970) 2 Cal.3d 1, 4 which have unequivocally confirmed the application of the collateral source rule in California. To rule otherwise would ignore the historical importance of the collateral source doctrine and the principle of stare decisis. Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 ( Under doctrine of stare decisis, all tribunals exercising inferior jurisdiction are required to follow decisions of courts exercising superior jurisdiction; decisions of Supreme Court are binding upon and must be followed by all California state courts… Courts exercising inferior jurisdiction must accept the law declared by courts of superior jurisdiction. It is not their function to attempt to overrule decisions of a higher court .).

Third, even defendant’s expert Lee Brown testified that although he intends to testify that the reasonableness of the bills is merely the adjusted amount accepted by the facilities, he has no way of knowing for sure what that amount is. Consequently, there is no basis to limit the introduction of the total amount billed to the Plaintiff.

Fourth, the prejudicial effect of introducing reduced medical bills to the jury would undermine Plaintiff’s claim for personal injury damages. If, for example, the jury is informed that Plaintiff’s medical bills are substantially less than the $278,000 which were charged by his health care providers, that fact may diminish Plaintiff’s general damages claim in the jury’s eyes and reduce his general damages award.

Sacramento Man Sues To Recover Damages After Auto Accident, Part 1 of 8

December 2, 2009 | by Moseley Collins

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident/personal injury case and its proceedings.)

PLAINTIFF’S TRIAL BRIEF REGARDING INTRODUCTION OF HIS MEDICAL BILLS
MEMORANDUM OF POINTS AND AUTHORITIES
SUMMARY OF FACTS AND ARGUMENT

This is an admitted liability case.

Plaintiff Billy White’s vehicle was rear-ended at high speed by defendant Thomas Smith’s vehicle as Mr. White was stopped at a lighted intersection in Sacramento. Plaintiff’ suffered a serious low back disc herniation at L5-S1, which eventually required a fusion surgery. He may need future revision procedures. Plaintiff’s medical bills exceed $278,000. His loss of earnings exceeds $600,000-$750,000.

Defendants want to restrict evidence of Plaintiff’s medical specials at trial to the contract rate the healthcare providers accepted from Plaintiff’s health insurance carrier pursuant to Hanif v. Housing Authority (1988) 200 Cal.App.3d 635 and Nishihama v. City and County of San Francisco (2001) 93 Cal.App.4th 298.

The motion should be denied for the following reasons:

First, recent judicial decisions affirmed the right of a plaintiff to introduce the full amount of her medical bills notwithstanding that they exceeded the amount paid by insurers to plaintiff’s medical providers. In Olsen v. Reid, 2008 WL 2486789, the court of appeal “squarely rejected” defendant’s argument that the jury should be barred from hearing evidence of the full measure of plaintiff’s medical damages. Similarly, in Greer v. Buzgheia (2006) 141 Cal.App.4th 1150, 1157, the court permitted Plaintiff to present the full amount that was billed to him, subject only to a possible post-verdict reduction.

Sacramento Jury Awards Car Accident Victim’s Wife Huge Sum For Loss Of Consortium, Part 14 of 14

November 30, 2009 | by Moseley Collins

The following blog entry is written from a defendant’s position after a jury trial verdict for plaintiff. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a personal injury case present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this auto accident/personal injury case and its proceedings.)

These above cases dramatically demonstrate the principle that–much as every case is of course different and must be independently decided–awards of non-ecomonic damages in the range of $5.4 million (roughly adjusted for inflation) are limited to truly catastrophic injuries. And while Mr. Ward presented evidence at trial of back, neck, and knee injuries that cause significant pain and require surgery, Mr. Ward has produced no evidence of an injury which leaves him paralyzed or otherwise deprived of control over his life as an individual. In short, his injuries from the automobile acident are not catastrophic, and the jury’s award of damages as if they were is not reasonable. Damages must be reduced substantially by this Court, or a new trial must be ordered. The same is true for plaintiff’s wife’s award.

The Jury’s $1.620 Million Loss of Consortium Damages Award to Ms. Ward Is Excessive

A wife’s loss of consortium is comprised of her own physical, psychological and emotional pain and anguish which results when her husband is negligently injured to the extent that he is no longer capable of providing the love, affection, companionship, comfort or sexual relations concomitant with a normal married life. [Citation.] While triggered by the spouse’s injury, a loss of consortium claim is separate and distinct, and not merely derivative or collateral to the spouse’s cause of action. (Gapusan v. Jay (1998) 66 Cal.App.4th 734, 742.)

The jury awarded a total of $1,620,000 to Ms. Ward for past and future loss of consortium. This amount is exactly 30% of the $5.4 million in non-economic damages awarded to Mr. Ward.

The loss of consortium award to Ms. Ward raises three immediate concerns. First, the jury clearly disregarded the independent nature of Ms. Ward’s claim, by simply giving her a percentage of what it gave to Mr. Ward for his pain and suffering. Second, the determination of Ms. Ward’s loss of consortium claim by way of a percentage of an entirely independent claim belonging to another person constitutes a clear violation of the rule against using mathematical formulas to arrive at a figure for damages. (See above.)

Plaintiff In Sacramento Car Accident Case Rendered Impotent, Part 11 of 14

November 23, 2009 | by Moseley Collins

The following blog entry is written from a defendant’s position after a jury trial verdict for plaintiff. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a personal injury case present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this auto accident/personal injury case and its proceedings.)

Damages awards upheld in other cases involving similar injuries further illustrate the true departure from reality reflected by the award to Mr. Ward. (See Westphal v. Wal-Mart Stores, Inc. (1998) 68 Cal.App.4th 1071, 1074-1077 [in upholding $150,000 in non-economic damages for slip-and-fall injury to legs and lower back of 55-year old woman, trial court remarked that the award was generous, where plaintiff suffered from ongoing, chronic, permanent pain from myofascial pain syndrome, which limited her mobility, caused her to be physically weak, and prevented her from working at her job]; Springmeyer v. Ford Motor Co. (1998) 60 Cal.App.4th 1541, 1546-1547 [where plaintiff’s arm was severed by fan, resulting in permanent loss of use of dominant hand after reattachment, chronic and severe pain, and inability to work, jury awarded non-economic damages of $2.5 million];
Damele v. Mack Trucks, Inc. (1990) 219 Cal.App.3d 29, 34-38 [where plaintiff suffered “massive crush injury” to his left chest and shoulder from being trapped between a 65,000-pund truck and its trailer, causing massive blood loss, kidney failure, crushing of shoulder blade, nerve damage in arm, shearing-off of ligaments and muscles in arm, collapsed lung, repeated operations, permanent loss of use of arm, and permanent pain in shoulder, jury awarded $568,000 in non-economic damages, upheld by reviewing court]; Honea v. Matson Navigation Co. (N.D. Cal. 1972) 336 F.Supp. 793, 795, 797-799 [where slip-and-fall resulted in fractured left hip, death of a piece of bone due to lack of blood supply, and possible permanent confinement to a wheelchair, court awarded $75,000 in non-economic damages, including pain and suffering];
Seffert v. Los Angeles Transit Lines, supra, 56 Cal.2d at pp. 504, 506, 508-509 [bus accident caused fractures of left heel and shin bones, severed nerves and arteries to left foot and persistent open ulcer; Court conceded that non-pecuniary damages award of $134,000 was high but upheld it, stating that it was intended to compensate for pain and suffering, past and future, humiliation as a result of being disfigured and permanently crippled, and constant anxiety and fear that the leg will have to be amputated ];

Sacramento Car Collision Victim Suffered Multiple Injuries, Part 10 of 14

November 21, 2009 | by Moseley Collins

The following blog entry is written from a defendant’s position after a jury trial verdict for plaintiff. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a personal injury case present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this auto accident/personal injury case and its proceedings.)

In Randolph v. Budget Rent-A-Car (C.D. Cal. 1995) 878 F.Supp.162 (reversed on other grounds in Randolph v. Budget Rent-A-Car (9th Cir. 1996) 97 F.3d 319), the court (following a court trial) determined plaintiff’s damages arising from an auto accident. (Id. at pp. 163-164.) The court described the plaintiff’s injuries as follows:

As a proximate result of the automobile accident John Randolph has suffered extensive orthopedic injuries. His left knee has a fractured tibial plateau and a tear of its anterior cruciate ligament; his pelvis was fractured resulting in the separation of his pubic rami; his pelvic region suffered a severe hematoma, resulting in a major rectus muscle injury; and the third and fourth metacarpal of his left hand were also fractured. In an effort to alleviate some of the pain John Randolph has been suffering, he must undergo two future surgeries. The first is to remove metal fragments from his left knee; the second is to replace the knee with an artificial knee implant. Further, it is quite possible that a second knee replacement operation will be needed if the first replacement does not work. (Id. at pp. 164-165.)

While the plaintiff in Randolph also suffered impotence as a result of his injuries, he was separately compensated for this by the court. (Id. at p. 166.) For his total past and future pain and suffering arising from the injuries described above, however, the court awarded him a total of $500,000. (Ibid.) The court explicitly based its determination on a survey of compensation for similar injuries in this and other jurisdictions. (Ibid.)