San Luis Obispo Personal Injury Lawyer - Miscellaneous

New California Laws for Drivers - No Smoking

Nigel Whitehead — Thu, 14 Aug 2008 12:49:35 GMT

Every year there are new state laws passed. A few new laws this year affect drivers. I have previously blogged about the new "hands-free" law for use of a cellular phone while driving. But, did you know that it is also now illegal to smoke in your car if you have a minor passenger? As of January 2008 Health & Safety Code Article 2.5 was added to Part 15 of Division 104 of the code making it a citable offense to smoke in your car while you have a passenger under the age of 18. This infraction carries a $100 fine and applies to cigars, cigarettes and pipes.

It appears from the legislative history of the bill that this law was motivated not by driving safety concerns but by second-hand smoke dangers to children. California is the most aggressive state in the county in passing laws restricting smoking.

I was pleased when smoking in most public building was prohibited. I was pleased to see airlines adopt a no smoking policy. I think it a bad idea to smoke at all, and especially around kids. But I must confess I get a little uneasy when the government starts restricting the use of a legal product in a private place. Why not ban smoking around children anywhere? Why not ban smoking all together? As a person with a family recently diagnosed with lung cancer I'm all for it. But as a lawyer I think the government may have stepped a little too far into some people's personal liberties.

Your thoughts?

Originally posted at InjuryBoard by Nigel Whitehead

Are There Really More Personal Injury Lawsuits?

Nigel Whitehead — Tue, 12 Aug 2008 14:58:26 GMT

It seems as if almost daily we are told that the proliferation of personal injury lawsuits will be the ruin of Western civilization as we know it. This propaganda is generated by a host of pro-business interest groups such as the Chamber of Commerce. A simple search of "Tort Reform" on www.cuil.com (An interesting alternative to Google) will produce over 137,000 results.

But are there really more personal injury lawsuits? Every year the Judicial Council of California produces a statistical report concerning the State Supreme Court, Courts of Appeal, and the Superior Courts of each County. The truth is that all personal injury filings are down over the last 10 years. In fact, motor vehicle lawsuits are way down. In 1997 there were 43,947 motor vehicle lawsuits filed in California's Superior Courts. In the most recent 2007 report that number has dropped to 31,389.

Were there really that many fewer injury accidents. Of course not. In the last 10 years did the insurance companies start settling claims fairly without a lawsuit being filed. (If you have ever been injured in an accident you know the answer is no.)

The answer is that the propaganda machine has made people reticent to file many injury lawsuits. That doesn't mean there were not hurt. It simply means they are not being fairly compensated.

If you have ever wondered why big corporations would fund propaganda campaigns to distort the truth one need only look at the record profits being reported by the largest corporations.

Originally posted at InjuryBoard by Nigel Whitehead

Blue Shield Settlement in Wrongful Recision Case

Nigel Whitehead — Mon, 11 Aug 2008 14:10:18 GMT

Blue Shield has settled wrongful recision claims against it by the Department of Managed Health Care. The DMHC alleged that Blue Shield wrongfully engaged in "post-claims underwriting". When some health plan members submitted claims Blue Shield attempted to find a reason to cancel their insurance in order to avoid paying the claims. Such practices are prohibited by California law.

The settlement involves a $3,000,000 administrative fine and presents those people whose coverage was wrongfully canceled certain remedies, including the right to purchase new insurance and reimbursement for unpaid medical expenses. The settlement is complicated and could affect your legal rights. We encourage anyone interested in the settlement to fully investigate their options and to seek legal counsel if needed. A copy of the press release can be found here.

Originally posted at InjuryBoard by Nigel Whitehead

Los Angeles School Officials Fired over Failed Molestation Investigation

Nigel Whitehead — Wed, 07 May 2008 11:21:56 GMT

Yesterday I wrote about the tragic case in Los Angeles where Steve Rooney, an Assistant Principal was arrested on charges of molesting a student. It had been reported that Rooney had been previously accused of molesting other students and of pointing a gun at a student's father. Instead of taking Rooney away from students while the investigation and criminal charges were resolved, Los Angeles Unified School District officials simply transferred Rooney to another school, where he molested two more students.

Today, the Los Angeles Times is reporting that two school officials, Local District Supts. Carol Truscott and Scott Braxton, have been "assigned" to the central office pending further investigation. In perhaps the first good thing to come out of this tragedy, Los Angeles Unified School District Senior Deputy Supt. Ramon C Cortines, stepped up and said "There is evidence they did not do what is expected. In cases involving sexual misconduct we have a responsibility to continue the investigation until we feel that the employee is cleared to be in contact with student." Such an acceptance of responsibility is rare. Cortines has said what all parents know: When we turn our children over to the school we expect them to take care of our kids. When that doesn't happen horrible things can happen.

Teacher/pupil sexual misconduct inflicts emotional scars that may not surface for years. But when they do, they are serious and pervasive. What can you do? Talk to your kids about boundaries. Tell them how to distinguish between a good touch and bad touch. Tell them it OK to tell someone if a teacher makes them feel "funny". The vast majority of our teachers are dedicated professionals who love our kids. The ones who are not, however, can inflict irreparable harm. Several web-sites are dedicated to helping stop educator sexual abuse.

Please, become informed and talk to your kids.

Originally posted at InjuryBoard by Nigel Whitehead

Suing Los Angeles School District for Molestation by Teacher

Nigel Whitehead — Tue, 06 May 2008 11:25:44 GMT

The number of teacher/pupil sexual misconduct incidents is staggering. The United States Department of Education commissioned a study that found that nearly 10% of all students in the United States are likely to become victims of teacher/pupil sexual misconduct at some time during their enrollement in school. The problem is pervasive and widely under reported by students due to shame, fear and feelings of guilt. The problem is magnified when a school district learns of a teacher's sexual misconduct and, instead of firing the teacher, transfers him or her to another school.

This is what is reported by the Los Angeles Times to have recently happened in Los Angeles. According to the Times, Los Angeles Unified School District officials knew that Assistant Principal Steve Thomas Rooney has been accused of sexual misconduct with a student. Rooney had also been arrested for pointing a gun at a student's father. Instead of placing him on leave until the matter was thoroughly investigated, district officials transferred him to another school, where, tragically, he again molested two students.

I understand that Rooney, like any citizen, has rights and is presumed innocent. But nothing in the Constitution would have prevented the school district from placing Rooney on leave until the matter was investigated. Place him on paid leave if you like, but, surely we should error on the side of caution when it comes to protecting our children from pedophiles.

I have been involved in several civil lawsuits against school districts based on educator sexual misconduct. The law in California makes it very difficult to prevail against a school district. Getting a judgment against the offender is often easy, but since he or she is usually in jail collection of a judgment is nearly impossible. To fairly compensate the injured child it is critical that liability against the school district be investigated in detail.

In a case such as the Rooney matter, the school district would have had a duty to take reasonable steps to protect it's students. It would appear from the reports that the district failed miserably.

Originally posted at InjuryBoard by Nigel Whitehead

Amazing Display of Sportsmanship

Nigel Whitehead — Mon, 05 May 2008 13:06:21 GMT

This isn't a legal story, but sometimes a story is just too good to ignore.

Saturday, Western Oregon University senior softball player, Sara Tucholsky, hit a home run in a game against Central Washington. No big deal, right? Except Tucholsky is a 5'2'' self described "line-drive" hitter who had never hit a home-run. Not in Little League, high school or through nearly four seasons in college.

As she rounded first base she felt something pop in her right knee. She felt pain so intense that she couldn't stand. She crawled to back to first base, where she fell face down, holding onto the base. Knowing her player was injured the Western Oregon coach asked if she could use a substitute runner, or assist her player around the bases. The umpire informed the coach that both options were against the rules.

And that's when sportsmanship of the highest order made its appearance in the game. Two players from the opposing team lifted Tucholsky and began carrying her around the bases. After they put her down on home plate Tucholsky's team mates took over and helped her to the bench. Tests revealed that Tucholsky had torn her ACL. You can see the amazing video here: http://sports.espn.go.com/broadband/video/videopage?videoId=3380875

When asked why they had helped the opposing team score a run, Central Washington player Mallory Holtman simply said "It was the right thing to do."; and, "Because she deserved it."

I just wanted to write about something that made me feel good. Helping someone, just because it's the right thing to do. Don't you wish real life always worked that way?

Originally posted at InjuryBoard by Nigel Whitehead

California Doctors and Hospitals Join Blue Cross Rescission - Cancellation Class Actions

Ray Mattison — Sat, 03 May 2008 19:31:19 GMT

The 35,000 member California Medical Association and the 450 hospitals of the California Hospital Association have joined the pending consumer class actions against Blue Cross complaining about the rescission (cancellation) of over 6000 customers by Blue Cross of California and it's subsidiary, Blue Cross Life and Health. "We believe that Blue Cross has failed to pay claims worth hundreds of millions of dollars based on its illegal practices," said Daron Tooch, one of the lead attorneys in this case.

Earlier this year Governor Schwarzenegger joined in the criticism of the rescission - cancellation practices of Blue Cross and other Health Plans, the subject of pending class actions in Los Angeles.

Blue Cross and other California health insurers are accused of doing little investigation (known as "underwriting" in insurane parlance) when the consumer applies for health coverage. Because they have a two year period in which they can rescind coverage if there is fraud in the application, the companies are accused of waiting until someone runs up large bills or becomes very ill and then doing an in depth scrutiny of the patient's medical history looking for reasons to deny coverage. According to the Los Angeles Times an investigation by the Department of Managed care found that "Blue Cross of California 'routinely' violated state law when it canceled individual health insurance coverage after policyholders got pregnant or sick, making no attempt to determine whether they did anything to merit such 'harsh' treatment".

A recent legal victory by Raudel and Maria Rodriguez could spell more trouble for Blue Cross. According to their attorney, Robert S. Gianelli of the Los Angeles firm of Gianelli & Morris, Rodriguez and the other victims of Blue Cross' rescission - cancellation will now be able to present their case to a jury rather than being forced to binding arbitration. According to Gianelli and even the pro business Wall Street Journal, binding arbitration is not only shielded from the public eye, but is generally considered to be an expensive yet unfavorable forum for consumers. Along with the CMA's suit, the Rodriguez class action and others against the Blue Cross companies have been joined together in Los Angeles.

In association with San Luis Obispo attorneys Raymond E. Mattison and Don A. Ernst, current President of the Consumer Attorneys of California, Gianelli has brought a similar class action against Blue Cross Life on behalf of a San Luis Obispo County single mother whose health insurance was cancelled leaving her with unpaid medical expenses. A San Luis Obispo Judge recently certified a class action against Blue Shield brought by a young mother whose health coverage was cancelled after her son was born with a heart defect requiring expensive surgery. Blue Shield is also under investigation by the Deparment of Managed Care.

Originally posted at InjuryBoard by Ray Mattison

Man Sentenced for Molesting 15 year-old Girl

Nigel Whitehead — Tue, 29 Apr 2008 11:41:14 GMT

A San Luis Obispo man was sentenced to 7 years in prison for molesting a 15 year-old girl.

Perhaps it is just because I have represented several victims of abuse in civil suits against their attackers, but it certainly seems that there has been an increase in the reports of this type of perverted behavior. It also seems as if the perpetrator never receives enough jail time. I am involved in one civil case where the defendant was sentenced to less than a year in county jail for a three year molestation of his niece.

We have taken on several of these cases by bringing a civil case against the perpetrator. Finding liability is the easy part. Finding a way to get our clients compensated is the hard part. We have been able to plead some of our cases to trigger insurance coverage. We also seek punitive damages to be sure that the civil judgment cannot be discharged in bankruptcy. Many times, we end up with a large judgment, only a portion of which will ever be collected. My experience is, however, that holding these perverts responsible has as much value to these girls as collecting a judgment will ever have.

These cases are sad, emotional, difficult, and tremendously rewarding.

Originally posted at InjuryBoard by Nigel Whitehead

Governor Schwarznegger joins opponents of Blue Cross Blue Shield rescission practices.

Ray Mattison — Sat, 26 Apr 2008 09:00:00 GMT

Blue Cross of California, BC Life, HealthNet, and other large California health care coverage providers have been accused of improperly dropping (rescinding) thousands of health insurance customers using an illegal practice called "post claims underwriting". They do little or no investigation when they issue the policy, but if you run up big bills they scour your medical records to find reasons to rescind your coverage based on alleged "misrepresentations" in a confusing and complicated application. The charge is that they loan you an umbrella and want it back as soon as it starts raining!

Now California's Governor has joined proponents of regulatory action and class action lawsuits in condemning this practice. According to the Sacramento Bee, Schwartznegger said it is "outrageous that innocent patients have to live in fear of losing their health care coverage. I look forward to working with my partners in the Legislature to ensure this egregious practice is stopped."

Earlier this week the California Court of Appeals rejected an effort by Blue Cross and BC Life, a Blue Cross subsidiary, to force a class action lawsuit complaining about the rescissions to private arbitration, rather than having the case tried by a jury. The class action attorney involved in that case, Robert Gianelli of the Los Angeles firm of Gianelli and Morris, maintains that binding arbitration has proven to be an unfavorable forum for to consumers in most cases, and that it is private, expensive, and creates no legal precedent. In that case, Blue Cross dropped Gianelli's clients, Raudel and Maria Rodriguez, after they incurred over $100,000 in medical bills.

A State investigation found that Blue Cross did little investigation of applicants for coverage but, they had a dedicated and computerized unit of the company devoted to finding reasons to rescind their coverage based on their medical history.

Our firm has brought a similar class action against BC Life, one of the Bue Cross companies, on behalf of a San Luis Obispo woman who was left with medical bills when her health coverage was dropped.

Yahoo news has an excellent menu of articles on this controversy.

Originally posted at InjuryBoard by Ray Mattison

Blue Cross Must Face Juries in Health Plan Cancellation Cases

Ray Mattison — Thu, 24 Apr 2008 20:52:29 GMT

In an opinion handed down on April 23d, The California Court of Appeals rejected the attempt of Blue Cross of California and Blue Cross Life to force consumers whose health coverage was canceled (legally referred to as "rescinded") to binding arbitration rather than the jury trial to which they would otherwise be entitled. A copy of the opinion in Rodriguez v. Blue Cross of California can be found at the Court of Appeals website. The Blue Cross health coverage of Raudel and Maria Rodriguez was rescinded unilaterally by Blue Cross after Raudel incurred over $100,000 in medical bills. The Court of Appeals agreed with the trial court's ruling that Blue Cross of California and BC Life & Health Insurance Company, a Blue Cross subsidiary, violated provisions in the Health and Safety Code requiring a clear and specific warning be given to the consumer before he or she can be forced to give up their right to a jury trial in a claim against the company. Represented by Robert Gianelli of the Los Angeles firm of Gianelli & Morris, Rodriguez filed a class action alleging that the companies had engaged in a practice of unfairly and illegally canceling health insurance coverage once the companies discovered that the customer had incurred large medical expenses, a prohibited practice known as "post claims underwriting". The Rodriguez case is one of the class actions against Blue Cross and BC Life which have been joined together in Los Angeles. It is believed that more than 6000 consumers have been victims of this practice, according to Gianelli. Judge Peter Lichtman is currently conducting settlement proceedings in these cases. "This is an important victory for my clients and all of those who have been victims of this practice. Consumer advocates uniformly believe, as I do, that forcing consumers into binding arbitration - which deprives a citizen of their day in court - is unfair and limits both their rights and the right of the public to know. Now, Blue Cross will be forced to explain their conduct in a public courtroom before a jury of citizens." Recently, a San Luis Obispo Judge granted class action status to a similar group of consumers accusing Blue Shield of California of engaging in the same cancelation practices. If the Blue Cross actions are not resolved, the customers will be entitled to have a jury hear their claims, as well as the defenses of Blue Cross, rather than a single arbitrator who would hear the case in private at the expense of the consumer. Binding arbitration rulings do not create legal precedent, generally cannot be appealed to a higher court, and can cost $100,000 or more in fees - half of which must be paid by the consumer.

Originally posted at InjuryBoard by Ray Mattison