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UnknownOne of the most pernicious clauses which nursing homes put into their admission agreements are arbitration provisions.  The arbitration agreement takes away the rights of the nursing home resident or her family to have a judge or jury decide any legal claim against the nursing home.  This would include claims for elder abuse, neglect, and negligence which cause personal injury or even death. Instead, a private arbitrator must hear the claim. Medicare has recognized the unfairness of these agreements and has instituted new regulations to prohibit nursing homes from compelling residents to sign arbitration agreements.

The new regulation, 42 CFR§ 483.70(n), provides:  “We are requiring that facilities must not enter into an agreement for binding arbitration with a resident or their representative until after a dispute arises between the parties.  Thus, we are prohibiting the use of pre-dispute binding arbitration agreements.

In the past, nursing homes would typically have arbitration agreements signed by the resident or a family member before the person was admitted to the facility. In California, it has been the law that residents could not be required to sign such agreements as a prerequisite to admission.  California Health & Safety Code§ 1599.81, Title 22 California Code of Regulations § 73518, however, many unsuspecting people signed such agreements anyway because of the way they were presented to them by the nursing home administrator.  Often, these agreements were sold as an economical and quick way to resolve disputes with the nursing home should problems arising.  In reality, the agreements were taking away people’s constitutional right to a jury trial, and people did not realize the drawbacks of the arbitration process until it was too late. Finally, this practice will be stopped.

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cell phoneAs I drive down the road, I frequently see drivers texting—even on the freeway.  If the driver gets in a car accident because he is texting we know that the driver is legally liable for the accident.  But what is the role of the phone manufacturer?  Should the phone manufacturer be held liable for accidents caused by texting drivers, when they have the technology to prevent such conduct?  That is the question being raised in a Texas lawsuit.

According to the products liability  lawsuit, Ashley Kubiak was speeding down a Texas highway while texting.  She then drove her Dodge Ram truck into a SUV, killing two people and paralyzing a child.  The families of the victims have filed a wrongful death lawsuit against Apple claiming that the phone manufacturer has a legal duty to prevent texting while driving and it possesses the technology to do so.

Apple received a patent in 2014 for a lock out mechanism for its phones. The patent application recognized the ever growing problem of people driving and texting.  According to the patent, the invention can disable all distracting features of the phone, such as texting while someone is operating a motor vehicle.

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920x920A friend of mine posted a story on Facebook about a tragic accident that occurred in the Russian River area.  The post caught my attention because my friend who has a summer home near there is personally aware of several other similar accidents on that same turn. So why isn’t the State of California doing something about this dangerous section of road?

The accident involved a mother who was driving her car down Highway 1. She had her two young children in the car with her.  She was traveling at approximately 35 m.p.h. when her car began to slide on the wet roadway along a curve.  She tried to correct her car but she ended up going down an embankment and into the river, forty feet below.  Sadly, her two children drown in the accident.

The State of California is legally responsible to keep our roadways in a safe condition.  If the roadway is dangerous and causes injury or death, the State may be liable for personal injuries or wrongful death if certain conditions are established.  To establish liability, it must first  be shown that the public road was dangerous.

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UnknownThe New York Times published a disturbing tale of the automotive industry and how once again, corporate profits were placed above public safety.  According to the article, the auto industry knew 20 years ago of the safety risks inherent in the Takata airbag.  Yet, not only was nothing done about it, facts were concealed to hide the danger of these airbags.  The result—at least 14 people have been killed and more than 100 injured by faulty airbag inflaters made by Takata.

According to the Times piece, in the 1990’s, Takata, a Japanese supplier, designed a cheaper automotive airbag which it was pitching to General Motors.  General Motors at that time purchased its airbags from a Swedish company, Autoliv. It asked Autoliv to match the price of the competitors product. However, Autoliv did a study of the cheaper Takata airbags and found that it contained a dangerous compound in its inflater.

That compound, ammonium nitrate ,would produce explosive results.  When testing the product it would literally destroy the inflater fixture and turn it into shrapnel, according to a former Autoliv chemist.

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UnknownWhen asked the question whether there are more or less personal injury cases tried now as compared to ten years ago, most people will answer that there are more.  Insurance companies, large corporations, and some politicians have intentionally misled  the public that there is a litigation explosion in our country. Nothing could be further from the truth.

A recent New York Times article reported that numerous law journals have reported a decline in both civil and criminal jury trials nationwide. The Bureau of Justice Statistics has been tracking the number of civil trials in state courts since 1992. Their surveys show that the number of civil trials has declined by over 50% between 1992 and 2005.  Those numbers have continued to decline.

What are some of the reasons for this decline in jury trials?  Many cases are referred to arbitration.  If you look at most of the agreements you sign with credit card companies these days, the contracts frequently contain arbitration clauses.  This means that if you have a dispute with the credit card company, you cannot sue them in state or federal court. You must have your claim heard before a private arbitrator.  The courts favor these arbitration clauses and regularly enforce them, forcing clients to give up their right to a jury trial.

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UnknownI read an article in the New York Times this week which raised the interesting question about how reliable video tape evidence is in the courtroom.  As an Alameda personal injury lawyer, more and more of my cases involve video tape evidence of one type or another.  Frequently, in cases where someone has fallen in a grocery store, the falls are captured by video tape.  Often car accidents are filmed by roadside cameras or cameras located at nearby business establishments. The films can be problematic because the reality of what happened can be distorted by the camera angle and the speed at which the tape is played and reviewed.

The Times article points out the inherent dangers of playing back video tape in slow motion.  A study published in the Proceedings of the National Academy of Sciences, showed that decreasing the speed of the play back increased the possibility that someone’s action was intentional versus a spontaneous reaction. In legal jargon, a slowed down video tends to make the action appear to be more premeditated.

Focus groups were shown a video of an armed robbery and shooting at a grocery store. They were asked to assess whether the shooting was premeditated or not.  The video was shown in slow motion to half of the group and at regular speed to the other half.  Those who watched it in slow motion felt the shooter had more time to act, and hence more culpability, than those who watched the film at regular speed.

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Caitlyn Jenner in May speaks during the 27th Annual GLAAD Media Awards in New York. (Photo by Charles Sykes/Invision/AP, File)

Caitlyn Jenner (Photo by Charles Sykes/Invision/AP, File)

I read in the headlines today that Caitlyn Jenner has sued the paparazzi who were allegedly chasing him at the time of his fatal car crash in February, 2015.  So what is that all about? It’s called filing a cross-complaint- a legal tactic which has escalated since California’s adoption of Proposition 51 in 1986.

The accident occurred on the Pacific Coast Highway in Malibu, California. As frequently happens on this highway, traffic had come to a sudden stop. Ms. Jenner applied her brakes  but was unable to stop before rear ending the vehicle in front of her.  But rather than being a simple rear end accident, the car that Jenner struck then veered into oncoming traffic, causing a head on collision, killing the driver of the car that Jenner rear ended, Kim Howe.

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UnknownI was shocked to read two recent articles about medical care in the United States which are not getting very much media coverage.  The first article describes a study which found that “medical errors” are the third leading cause of death in the United States.  The other article described how a medical device company withheld  information about potentially deadly infections associated with its medical scopes.

The two leading causes of death in the United States are heart disease and cancer.  Third behind these two causes is “medical error.”  According to a study by Johns Hopkins University, over 251,454 people died of preventable medical error.  The numbers are shocking.  There are approximately 30,000 deaths caused by car accidents, and about 13,000 per year due to gun shots.  Thus, medical error is eight times more likely to kill you than being hit by a car, and almost twenty times more likely than you being shot by a gun.

Part of the problem is that hospitals are not being held accountable.  There is no requirement that they report deaths due to medical error and or negligence to the Center for Disease Control.  Therefore, we don’t know the real extent of the problem or the common causes of these medical errors. When someone dies in a plane crash, the NTSB is responsible for investigating the death and determining causes which are public records.  Instead, in the medical world, these deaths are cloaked in secrecy.  Commonly, hospitals will have a quality control committee which investigates patient deaths.  Unfortunately, in California, the findings of these committees are not available, even to the family whose loved one died. In California, if someone brings a lawsuit against a hospital for negligence or wrongful death as a result of the death of a family member, they are prohibited by law from obtaining the records of the very committee that investigated the death (California Civil Code Section 43.7).

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hit and runAs an Alameda personal injury lawyer, I receive a lot of calls from people have been injured by hit and run drivers.  The injured include pedestrians, bicyclists, and car drivers.  Recently, I researched the California Highway Patrol records pertaining to hit and run accidents.  The findings were shocking.

Between 2011 and 2013, the last three years for which the CHP has records, there were 2,049 hit and run accidents.  In 2013, over 10% of the accidents involving either death or injury, involved hit and run drivers.  In that same year, Alameda County had the second worst record out of fifty-eight California counties for hit and run accidents.

What many people do not know, is that if they are injured by a hit and run driver, their own automobile coverage may protect them.  This is true even if they are a pedestrian or a bike rider at the time of the accident.  By law, every automobile insurance policy in California must include uninsured motorist coverage, unless the insured in writing agrees to forego this coverage (Never waive your right to uninsured motorist coverage—the small cost savings isn’t worth the risk).

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Tampa Bay Ray’s Evan Langoria’s quick reflexes prevented what could have been a serious injury to a reporter during an on- field interview over the weekend. The interview was alongside the first baseline while it looks like batting practice was going on.   The batter shanked the ball to the right toward the interview. As the video shows, Langoria seemed to sense the ball’s approach and snatched it out of the air barehanded!  Very impressive!!

As an Alameda personal injury attorney, my first thought was ” Why were they interviewing on the field with their backs to the batter ?”  “Why was there no one protecting them from behind from foul balls?”  If you watch the bullpen during a game, you always see, someone with a glove standing behind the pitcher and catcher who are warming up to catch any balls that come their way.