California’s "financial responsibility" law requires that all motorists carry a minimum level of liability insurance in case they cause an accident. That includes an accident that hurts a cyclist. The problem is that the minimum coverage ($15,000) is enough to Cyclist (Richard Masoner)cover minor injuries only. If any hospital stay is involved, the minimum coverage is unlikely to be enough. The majority of accidents involving a bicycle and a car send the cyclist to the hospital. Cyclists are thus placed at particular financial risk by "underinsured" motorists. 

If the cyclist owns a car, he can protect himself by purchasing "Uninsured/Underinsured" coverage.  The benefits of this coverage applies whether the driver who caused the accident is uninsured, or insured but carries an inadequate amount to cover the injuries. The coverage will apply even though the cyclist was on his bicycle and not in his car.  Thus, in the appropriate case, the cyclist’s UM/UIM coverage will step in and compensate the injured cyclist, up to the amount of the cyclist’s coverage limits.

For the cyclist to take advantage of the UM/UIM coverage, the cyclist may not accept a settlement from the driver without first obtaining his insurer’s permission. If the cyclist does accept a settlement, the UM/UIM may refuse to pay the cyclist’s claim.

Spinal cord injuries can result from a spectrum of causes: compression of the space around a disk, fractures of a vertebra (cervical, thoracic or lumbar), or a disk "blown" or crushed by a fall. The spinal cord can be injured or severed by a gunshot or by a knife wound. But the leading cause of spinal cord injuries is, by far, motor vehicle accidents (MVAs).

 Often, the MVA victim is concerned about whether a pre-existing condition will make a difference in his case. Generally, it will.

The person whose negligence causes an MVA is responsible only for the harm that results from that particular accident. That means that, if the victim had a pre-existing injury, the victim is entitled to compensation only for the extent to which the accident made the victim’s condition worse.

Sometimes the victim had no pain from his pre-existing condition, but the condition made him more susceptible to being injured. Then the "eggshell plaintiff" rule applies. The rule provides that it is no defense that a pre-existing neck or back condition made the victim more susceptible to injury. The wrongdoer who caused the MVA must fully compensate the victim. It makes no difference that another victim without the pre-existing condition might not have suffered any injury at all. The "eggshell plaintiff" is entitled to be fully compensated for the injuries he suffered in the accident, even if the careless driver had no way of knowing the victim’s condition was so fragile.

The victim’s pre-existing condition plays an important part in the evaluation of spinal cord injury cases. Sometimes, sorting out what injuries were pre-existing from those that were not can be exceedingly difficult. Because of that, the cases are best handled by attorneys experienced in analyzing medical evidence and in presenting that evidence to a jury.

 

Some accidents result in permanent injuries that will require ongoing care for the rest of the victim’s life.  The victim is entitled to be compensated for the cost of the future care now.  That’s because once the lawsuit is resolved, he cannot return to the wrongdoer and ask for additional compensation.  The cost of the victim’s future care is part of compensatory damages.

To prove what sum of money, paid today, will adequately cover the expenses the victim is likely to incur in the future, the victim’s attorney must enlist the help of several experts:

  1. The victim’s current doctor or other medical expert to testify about the victim’s injuries.  The doctor will testify about the victim’s current medical condition and the medical services he needs including therapy, equipment, transportation, and so on;
  2.  A doctor or nurse case manager specializing in physical rehabilitation medicine to review current medical records and interview the victim and current caregivers.  When this expert is done with her work, she will create a "life care plan" which will itemize the medical services that the victim will need for the duration of his life; and
  3. An economist to calculate the total costs of the future medical care set forth in the life care plan.  In determining the sum that needs to be paid to the victim today to ensure that his medical needs are met into the future, the economist will account for the inflation rate of medical goods and services, and reasonable rates of return on invested funds.

To properly gather the evidence and to work effectively with qualified experts, the victim’s attorneys must have a keen understanding of their client’s injuries.  Without that understanding, there can be no assurance that amounts awarded the victim for future care will be adequate.   

Many people with TBI have problems with basic cognitive skills: learning, remembering, thinking. It’s more than a mere loss of "intelligence." TBI victims may find it hard to pay attention or concentrate, and they might have trouble learning new material. A TBI can also cause the victim to think more slowly, or to get easily confused. Sometimes these skills are described as “executive functions” because they require a higher level of thinking, such as planning, understanding abstract ideas and conceptualization. People with TBI may become impulsive, or develop unusual habits. Things that were once easy — like talking and listening — may become difficult or impossible.
 

Because the brain regulates our emotional and psychological lives, a TBI can alter a victim’s sense of mental wellness. The TBI might cause a personality change, or introduce mental problems. A person with TBI may have mood swings, depression, irritability, aggression, or disinhibition. 

To assess the extent of the victim’s deficit, a neuropsychological evaluation may be recommended. The person conducting the evaluation interviews the victims and then administers a series of tests. The majority of the tests are pencil and paper standardized tests, meaning that they are given in the same manner to all patients and scored in a similar manner time after time. The tests must be administered by a neuropsychologist or a trained, skilled test administrator. 

The test giver will rarely, however, give a test that was specifically designed for someone who suffered a TBI.  For that reason, the cognitive test scores – alone– seldom paint the full picture of the TBI victim’s deficits. 

When dealing with a TBI victim, the test administrator should personally observe and evaluate the victim’s behavior during the test.  The test administrator’s observations may corroborate the reports of close friends and family members that the victim’s behavior has changed as a result of the injury.  In fact, interviews of friends and family are critical sources information concerning the loss the TBI victim has suffered.  

Regardless, cognitive testing is not designed to evaluate all behavioral changes that may result from a TBI.   Cognitive test results cannot be relied on as a sole measure of the TBI victim’s loss.
 

To win a lawsuit, the victim must prove that defendant was negligent —  that is, that he did not exercise "due care."  That can be difficult.  But it can also be easy, such as when the doctrine of negligence per se comes into play.

When the doctrine of negligence per se applies, defendant’s conduct will presumed to have been negligent with no need for plaintiff to present any further proof.  A defendant’s conduct is negligent per se if:

  1. The conduct violated a statute, ordinance, or regulation;
  2. The violation caused the injury;
  3. The statute, ordinance, or regulation was designed to prevent the type of injury that occurred; and
  4. The person suffering the injury was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted.

The doctrine of negligence per se may apply when a victim is injured on a construction site (or even a home remodeling project). For example, if the wrongdoer has violated an OSHA regulation, that may be enough to prove the wrongdoer was negligent.  The victim must still show that the violation caused his injury, that the regulation was designed to prevent his type of injury, and that he was of the class of persons for whose protection the statute was adopted.  But he need not prove, as he would need to in most cases, that the wrongdoer did not exercise due care.

If a jury determines that a defendant violated a regulation, the defendant can be found negligent per se even if the governmental agency did not charge him with a violation. Therefore, an attorney investigating a client’s case must conduct his own research and investigation into whether the defendant may have violated any applicable statute, ordinance or regulation. 
 

Scientists have found the stem cells that produce all the different cells of the skin. The discovery offers a promising development for wound repair or skin transplants.  Stem cells are original cells that have the potential to regenerate tissue over a lifetime. The skin has three different types of cells — hair follicles, inter follicular epidermis, and moisturizing sebaceous glands.

Scientists had previously thought that stem cells in each of these three skin populations were capable of producing only their own cell type. Scientists are already able to grow new skin in laboratories using a badly burned patient’s existing skin cells, but the new skin is often thin, brittle, dry and does not have hair — making it look unusual. The Science journal recently published a study by a team of Dutch and Swedish researchers who found in mice that the "mother" of all skin stem cells – the stem cells that produce all the different cells of the skin actually live in hair follicles. The advantage offered by the "mother" stem cell — Lrg6 — would be that skin can be grown from its original basis — allowing it to be "real new skin" with moisture from sebaceous glands and the ability to grow hair. Not just the superficial epidermis layer of skin.

One of the scientists, Hans Clevers, of the Royal Netherlands Academy of Arts and Sciences in Utrecht, told Reuters,

the promise is that these cells are probably going to be much better than anything we have had to date at making new skin.

It may take researchers 2 to 3 years to learn how to isolate the Lrg6 cells in human skin but the results should be far superior to current methods.

We anticipate that experts retained by defendants in burn cases will seek to use the new research to minimize the lasting nature of the injuries that the burn victim has suffered.

A child’s head injury can have devastating effects.  To reduce the risk of the injured child suffering a second and perhaps worse injury, medical professionals should use the term “mild traumatic brain injury” to describe the child’s head injury rather than “concussion.”

In a study to be published in the February issue of the journal Pediatrics, Carol DeMatteo, an associate clinical professor at McMaster University in the School of Rehabilitation Science, found that children whose injuries are labeled as "concussion" are allowed fewer days in the hospital and are sent back to school sooner than their counterparts with head injuries not diagnosed as "concussion."

Our study suggests that if a child is given a diagnosis of a concussion, the family is less likely to consider it an actual injury to the brain. These children may be sent back to school or allowed to return to activity sooner, and maybe before they should. This puts them at greater risk for a second injury, poor school performance and wondering what is wrong with them.

Professor DeMatteo said using the term "mild traumatic brain injury" instead of "concussion" will help people to better understand what they are dealing with so that they can make decisions accordingly.  

Proposition 213 became law in 1996.  That law says that an uninsured driver who is injured in an auto accident  may not recover certain damages due her, even though the accident was entirely the fault of the other driver.  The damages the innocent driver is prohibited from collecting are her non-economic damages, which include pain and suffering.

The insurance companies passed Prop 213 to save money and maximize profits at the expense of the driver who was not at fault in an accident. The only exception: an uninsured driver my collect damages for pain and suffering if the negligent driver who caused the accident is later convicted of drunk driving.

By its terms, Prop 213 applies to those uninsured drivers who were actually at the wheel when they were struck by another driver.  But courts have  applied this law broadly to keep compensation from drivers who weren’t even in their cars when the accident took place.  For example, courts have ruled that Prop 213 deprives uninsured drivers of the right to be compensated for the injuries even if they were outside their parked car when they were run down. 

Given the harsh results, it is important  that all drivers carry liability insurance on their cars and trucks.

A recent study shows for the first time that post-traumatic stress disorder (PTSD) can be objectively diagnosed using magnetoencephalography (MEG), a non-invasive measurement of magnetic fields in the brain. Researchers at the University of Minnesota and Minneapolis VA Medical Center published a study this month in the Journal of Neural Engineering identifying a biological marker in the brains of those exhibiting symptoms of PTSD.  Conventional brain scans such as an X-ray, CT scan, or MRI are unable to detect PTSD.

According to one of the rearchers, Dr. Apostolos Georgopoulos,

These findings document robust differences in brain function between the PTSD and control groups that can be used for differential diagnosis and which possess the potential for assessing and monitoring disease progression and effects of therapy.

In addition to diagnosing those with PTSD, the researchers also were able to judge the severity of  the patient’s suffering. 

Attorneys representing accident victims suffering from PTSD may be able to use these imaging techniques to support their clients’ claims for pain and suffering  against those responsible for causing their accidents.
 

As discussed here, damages awarded to a victim usually include the cost of medical services. Most victims who have private health insurance may have paid very little (ie. co-payment) compared to the amount the doctors or hospitals bill to the health insurer for the services. And, the health insurer also pays a lower rate than the amount that appears on the bill. For many years, attorneys representing the wrongdoer have asked the courts to award the victims the lowest amounts –the reduced sum paid by the health insurer.

Recently, the Court has ruled in favor of the victim and awarded the higher amount — what the doctor or hospital billed for the medical services. Put simply: the victim has paid a premium for the insurance and the wrongdoer should not receive a windfall for the victim’s thrift and foresight in securing insurance. The cost of medical services include "in-kind" benefits to the health insurance companies. The victim deserves the full benefit of his insurance.

The Court has found the following information helpful in allowing the victim to recover the full amount of medical expenses:

Written agreements between the victim and the medical service providers:

  • Registration Form
  • Financial Agreement
  • Conditions Admission
  • Insurance Verification
  • Amounts Collected
  • Amounts Due
  • Financial Counselor’s Notes
  • Bills from medical services providers
  • Agreements between the medical service providers and health insurance company to accept reduced payments as payment in full
  • Agreements between victim and health insurance company re payments and indemnity (benefits agreement, enrollment information, etc.)

The court may also expect the victim or a family member to present evidence of steps taken to keep track of injury-related medical bills. And a doctor will usually need to testify that the billing records were a fair and reasonable representation of the medical billings.