Personal Injury Lawsuit

If you’ve picked up a newspaper recently, you’ll be fully aware of the case involving the death of the young boy who was living in north London and is known in court and in the media as ‘Baby P’. The mother of the 17-month-old boy, who cannot be named for legal reasons due to age and privacy reasons (hence ‘Baby P’), has been convicted of causing or allowing his death by a jury at the Old Bailey. Two men - one of whom was the mother’s boyfriend - have also been convicted of causing or allowing his death.

This comes on the back of the case of Garcia v East Lancashire Hospitals NHS Trust in which a baby damaged at birth attempted to claim damages against the East Lancashire Hospitals NHS Trust. In Garcia v East Lancashire Hospitals NHS Trust the court looked at what was the cause of the damage to the child and determined there was no negligence by the NHS trust concerned. Difficult cases such as this will rest on the medical evidence concerned.

Garcia v East Lancashire Hospitals NHS Trust helped bring attention to personal injury claims in regards to babies. There are a wide range of reasons as to why someone might make a personal injury claim, but few are as traumatic as when a baby dies or is injured at birth.

Although the case of the 17-month-old boy known as ‘Baby P’ was not a personal injury one, it did highlight that social services had not done as much for the child as it could have. Likewise, in Garcia v East Lancashire Hospitals NHS Trust, attention was brought upon the idea that the hospital could have done more for the child, although in that particular case it was cleared of any wrongdoing. A damaged child will cost the parents considerable amounts of money to raise and where the hospital has been negligent a claim can be brought to help aid these costs. Although in the Garcia case, the connection between the action of the hospital and the damage was not found and the court determined that even if the child had been induced and the birth been earlier, the injury, which was a stroke, would still have occurred. In other cases a valid claim can be made as it is important that those responsible are called to account. The same applies if you are injured at work through the fault of an employer or in an accident whilst driving a car.

Many personal injury cases can be handled on a no-win, no-fee basis if you prefer and once liability is established the question of damages needs to be determined. There are many ways in which someone can suffer personal injury. It could be the result of a road traffic incident, accident at work or in a public place, or other accidental injury, and if you have suffered personal injury through the fault of others, you may be eligible for compensation. Even if you are not sure whether or not you have a valid claim, the best law firms will offer all initial consultations free of charge and without obligation. This will help clarify the options available and can put your mind at ease.

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Orange County Auto Accident Lawyers are in shock that the California Supreme Court has severely limited the protection afforded to Good Samaritans in California. Despite a recent ruling by that court, it is both sad and heartwarming to see that good deeds are still being attempted, even at the risk of life in Orange County.

Only days before the Supreme Court decision, a Good Samaritan female nursing student was trying to help a disabled driver, and both were walking on the I-5 Santa Ana freeway in Orange County when another driver crashed into the back of a car and shoved it into the two females. One of the female Good Samaritans, the 20-year-old nursing student was killed. The other female, a 16-year-old she was helping, was seriously injured.

Now, unfortunately, as a result of a new court ruling in California, if a Good Samaritan in trying to assist another does some additional harm to the person they are helping, they can be sued by a lawyer on behalf of the victim they tried to help anywhere in California.

If you need assistance with a personal injury or wrongful death matter or would like more information on this subject, we invite you to call us at any of the numbers easily found on our website at http://www.SebastianGibsonLaw.com

The new ruling comes by way of the highest court in California, the California Supreme Court, which means that the only way this interpretation of the law can be changed is by a subsequent ruling by the same court, which is unlikely, or by the State Legislature, which, even though it has its share of lawyers, right now can’t even agree on a budget.

The Court’s 4-3 ruling on December 18, 2008 comes as a result of an auto accident that occurred on Halloween night in 2004. A women was a passenger in a car that ran into a light pole at 45 mph. Her friend, who was in the car behind her, pulled the first woman by her arm from the wreckage in the belief that the car was about to explode and then allegedly dropped her. Unfortunately, the woman’s injuries left her a paraplegic and she sued her friend who pulled her out of the non-exploding car in the belief that the Good Samaritan’s rescue efforts caused her paralysis.

The Supreme Court was forced to interpret the California Good Samaritan law which is in the section of the state code dealing with emergency medical care and which states, “No person who in good faith, and not for compensation, renders emergency care at the scene of an emergency shall be liable for any civil damages resulting from any act or omission.”

Interpreting that law, the California Supreme Court held that the state’s Good Samaritan law only protects you from being sued if you render medical care at the scene of an emergency. If on the other hand you are just rendering aid or help in a non-medical way, such as pulling someone out of a burning car, you can now be sued. That doesn’t mean you will be found liable. That’s for a judge or jury to decide. But the fact that you can be sued, means that without insurance to protect you, you will undoubtedly need an attorney or lawyer to represent you, you will need to pay that lawyer his or her attorney’s fees and costs to defend you, which in a typical personal injury case can cost tens of thousands of dollars.

Worse yet, if by chance your actions as a Good Samaritan cause significant injury and a judge or jury of your peers decides that you really botched it when you took the actions that you took, perhaps in a mistaken belief that you were doing a good deed, a court of law could find you responsible for hundreds of thousands of dollars or millions of dollars if the resulting injuries are severe.

Whether or not any of these situations were covered by the Good Samaritan Law in California to begin with, it is possible that these situations could also now put you into hot water and into court as a possible defendant in a personal injury lawsuit:

1. Donations of bad food - Have you ever given old canned food to a food drive and failed to look at the dates on the cans? What if the food in those cans were beyond the expiration date and causes food poisoning? You might be held responsible in such a case, Good Samaritan Law, notwithstanding. Beer that is past it’s expiration date probably won’t be a problem for you but if someone serves it to a minor who drinks it and gets into a car accident, the server may face a lawsuit.

2. Donations of organs - Say you are still alive and donate an organ that fails after it is given to a sick patient or you give an organ upon your death that does no more good to the person it is given to than it did for you? Sounds like the deed of a Good Samaritan. And if you drank too much wine while you were alive and your shot liver is given to someone else upon your death, your estate may regret all that wine you drank while you were alive if the liver recipient doesn’t do well with your alcohol soaked liver. Still, we hope this is not the case.

3. Jumping into a swimming pool to save a drowning person - If, in pulling that person to the side or lifting them out of the pool you cause them injury, you can clearly be sued under this new ruling. And, if you proceed to give the person artificial respiration, but botch that as well, or if you botch it so badly, a jury or judge decides that you weren’t even rendering medical emergency treatment, a vindictive jury may hold you responsible for causing the swimmer’s death or additional injuries, such as brain damage.

4. What if you’ve been watching too many movies and you knock a person down or jump onto them to protect them from being shot by a bank robber running away and in so doing break their neck? Guess what? You may have just won yourself another lawsuit.

5. And if you swerve to avoid hitting a dog and hit another car instead? I hate to tell you, but in this situation, courts and insurance companies will almost always find you to be at fault, in the belief that a dog’s life has little value (this is not my opinion) and if you cause injury to another human just to save the life of an animal, you take the fall.

6. If you help someone out of a burning airplane, push them out the door into the chute and they take a header onto the tarmac, guess what? Some lawyer may slap you with a lawsuit.

7. If you see someone choking on a piece of meat in a restaurant and rush to perform the Heimlich maneuver, don’t bruise their ribs getting the person to cough up that piece of food. Otherwise, you guessed it. An attorney’s lawsuit may be served on you with your next meal.

8. Then there are those unfortunate EMS helicopter pilots. There has been a rash nationwide of EMS helicopters crashing as they transport accident victims from the scenes of their auto accidents to nearby hospitals. Since the pilot is not rendering medical treatment, it’s likely that they can be sued and can be found at fault if a judge or jury finds them responsible for some negligence in their piloting of their helicopter.

9. Is it safe to open the door for someone? Not if you open the door into their face and cause them an injury. People can still be kind to each other. They just have to be more careful now.

10. And finally, when you help another person put on a coat or pull out a chair for someone to sit down, those days of playing pranks on friends by hiding the coat sleeve or pulling the chair out a little too far are gone. They never really were Good Samaritan deeds, but now they absolutely and positively are not.

Can a person be sued for not coming to another’s aid? Apparently not, according to the California Supreme Court decision. But a person who does come to the aid of another has a “duty to exercise due care.”

If you do pull someone from a burning car, here are some facetious do’s and don’ts:

1) First, do not yank the car accident victim’s arm out of their socket when pulling someone from a burning car. Instead, first put on gloves, put on a fire retardant suit, and then with the flames licking at your suit, gently apply a neck brace, back brace, full body brace and with full medical precautions, gently lift the person from the burning wreckage. In the event, you see gas seeping from the gas tank and flames getting closer to the gas, move faster.

2) Once you remove the auto accident victim from the burning car, do not drop them on the sidewalk. Instead, gently place them on a warm blanket (not the wet grass where they might catch a cold).

3) Immediately, if not sooner, start applying bandages to every part of their body, thus qualifying your actions as emergency medical care. If you can do this while gently lifting them from the burning car, even better.

4) Request bystanders to take pictures with their cell phones of you applying bandages to the personal injury victim and acting like a doctor, even if you don’t have a medical license. If by chance you are not a doctor or paramedic, quickly go online, take a crash medical course to become a paramedic, and be sure you pass the test. Then print out your license for all to see.

5) Call only the finest medical personnel in the state to the scene of the accident in case your 911 call results in medical malpractice being performed by a newly licensed paramedic and your call is determined not to be an act of administering medical care in an emergency. Obviously, you will want to get onto the internet with your phone or computer and research the local medical professionals. If you can’t get onto the internet to research who would be the best emergency personnel to call to the scene, make the 911 call anonymously.

6) If the car that you thought was going to explode just doesn’t seem to want to explode, and you were a little rough in pulling the auto accident victim from their car, you may want to call a tow truck driver to push the car further away as this may prevent other injuries and help your situation. Just be sure to first ensure that any resulting explosion doesn’t hurt any bystanders or the victim you yanked from the car.

7) Keep administering medical care to the vehicle accident victim until medical personnel arrive. Since you’ve administered medical care, even if you are not a doctor, the car or truck or motorcycle accident victim is potentially now your patient, and there are rules about abandoning patients.

In the event the auto or motorcycle accident victim you’ve saved is delirious, you may also want to provide psychiatric counseling to them, which could conceivably also be considered medical treatment.

9) If weather conditions are bad or it is nighttime, and an EMS helicopter arrives at the scene instead of an ambulance, in view of the rash of EMS helicopter accidents in the U.S. you may want to suggest to the accident victim that he or she walks to the hospital as it may be safer. However, keep applying bandages throughout the walk and again, do not abandon your patient.

10) Proceed only to the hospital in your area with the best mortality rate. After walking ten or fifteen miles after a horrific car accident, because you stupidly declined medical treatment at the scene, you do not want to walk your patient into a hospital with a high medical malpractice rate or one with a higher fatality rate for car accident victims than ninety percent of the other hospitals in the state.

The California Supreme Court decision is rewriting the rules of liability in auto and car accidents, in motorcycle and truck crashes and in personal injury situations in general in the golden state and may make people think twice before acting as a Good Samaritan.

If you’ve had a personal injury accident in San Diego, Orange County, Palm Springs, Rancho Cucamonga, Santa Barbara, Yorba Linda, Tustin, Lake Forest, Fountain Valley, Rancho Santa Margarita, Newport Beach, Anaheim, Irvine, Huntington Beach, Corona del Mar, Laguna Beach, Santa Ana, Orange, Fullerton, Costa Mesa, or anywhere in Southern California, we have the knowledge and resources to be your California Personal Injury Lawyer and your Southern CA Personal Injury Attorney. Be sure to hire a California law firm with auto, motorcycle, truck, bicycle, pedestrian, car, bus, train, boat and airplane accident experience, wrongful death experience and insurance law expertise who can ensure you are properly represented and get the compensation you deserve.

If you have a personal injury legal matter, a dog bite or if you’ve lost a loved one in a wrongful death accident, call the Law Offices of R. Sebastian Gibson, or visit our website at http://www.SebastianGibsonLaw.com and learn how we can assist you.

PUTTING CIVILITY BACK INTO LITIGATION

Our system of civil justice is an excellent one. However, as is often the case, the system is no better than those who run it. A well-designed automobile will not run very well if shoddy parts are used.

System Abuses

In our civil justice system, regrettably, many attorneys choose to abuse the system by filing frivolous motions and objections, being uncooperative, and requiring things to be done the hard way, rather than the easy way. Most attorneys are not seeking justice, they are seeking victory. Sanctions are difficult to obtain and thus, those who adhere to these “delay and abuse” tactics can benefit and prosper. Similarly, a gruff offensive attorney (close your eyes and see if you can imagine such) invites a lack of courtesy in return, which then creates a rapid downward spiral of behavior. Often times this anger and bitterness can cause a litigator to lose sight of the task at hand.

A potential solution to the problem of having to deal with our obnoxious “hide and seek” colleagues is alternative dispute resolution (ADR) procedures. Unfortunately, unless ordered by the court, many of these “delay and abuse” individuals do not desire to participate in ADR because it is contrary to their philosophical approach to litigation. However, for those who prefer a more civil approach to civil litigation, and those who follow court orders to participate in such, ADR can be extremely beneficial for the lawyers, clients, and judges.

Mediation

There are two types of ADR: mediation and arbitration. Mediation is simply a meeting in which both parties and counsel appear before a mediator who serves as a facilitator to try to resolve the dispute. Typically, at a mediation, there is a meeting between all the parties and counsel during which a brief overview of the case is presented and where some mediators will request the parties to state the strengths and weaknesses of their case. The group then breaks into separate groups, each consisting of party and counsel. The mediator then goes back and forth between the groups with dollar figures he has extracted from the various sides. Typically, the parties agree that the negotiations are confidential and that nothing said can be used as an admission in the litigation. The advantages of such a forum are significant.

In a smaller case, it is frequently not cost effective for either side to proceed with protracted litigation. Thus, a settlement will be a “win-win” situation in which both sides benefit, as much of the costs and delays of litigation are significantly reduced. Another significant advantage is that it gives the parties (or the insurance adjustor) and their attorneys to meet. Thus, the individuals involved become people and not simply claim numbers and files. Both sides have an opportunity to size up the credibility and presentation of the parties (and counsel) and an informal exchange of some information is usually obtained. This informal discovery can be extremely beneficial to both sides in evaluating the case. It also can reduce the cost of pre-trial discovery (exchange of information). Additionally, it is harder for some attorneys (and their clients) to pull off their offensive tactics in person. Many of us who would hang up on a phone solicitor would be less reluctant to slam our front door in the solicitor’s face.

Even if the case does not settle, the monetary gap usually narrows and the mediation may have been a catalyst to a resolution down the road. Also, learning that a case cannot be settled will save time during the litigation as the parties will focus on preparing for trial and not conducting settlement negotiations.

Binding Arbitration

Another type of ADR is binding arbitration. In Missouri, in a contract setting, it is important to remember that a “consent to arbitration” provision in a contract is not binding unless it is in 10-point capital letters, and contains the following language: THIS CONTRACT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES. See Section 435.460 RSMo. within the Missouri Uniformed Arbitration Act.

Again, binding arbitration can be an expeditious way to resolve a dispute. In a personal injury setting, it can be extremely beneficial on smaller cases. It also is appropriate in a complex case that a jury might struggle with understanding, or in a contract case in which “jury appeal” will not affect the amount of the judgment. Obviously, it is helpful for those who are petrified to be in front of a jury, but if one is of that bent, they probably should not be handling litigation.

Obviously, the arbitrator(s) wields tremendous power as his or her decision is binding and can only be set aside by the courts in extreme circumstances such as: 1) the award was procured by corruption, fraud, or other undue means; 2) there was evident partiality by an appointed arbitrator or corruption or misconduct which prejudiced the rights of any party; 3) the arbitrators exceeded their powers; or 4) the arbitrator refused to postpone the hearing upon sufficient cause being shown therefore, or refused to hear evidence material to the controversy. See Section 435.405 RSMo. for a listing of reasons for which an arbitration award can be vacated.

Selection or Mediator or Arbitrator

In both types of ADR, the selection of the mediator or arbitrator (a “neutral”) is critically important. It is advisable to check out the arbitrator’s background, track record, and connections with the other side. If the other side has used this individual repeatedly as an arbitrator they probably have been happy with his or her decisions and that may be cause for concern. A mediator should be someone who will carry weight with the clients and other side and will not simply be a messenger or number carrier. A retired judge or a highly respected litigator can be an excellent choice when someone involved needs some sense talked into them. Someone who is persuasive is usually more effective, in my view. Typically, the fees are shared equally but obviously this needs to be addressed at the outset and confirmed in writing.

ADR, just as the name implies, is an alternative way to resolve a dispute. In appropriate circumstances and with the appropriate parties, it can be an excellent and civil way to resolve a civil dispute and avoid some of the pitfalls of a system that is run by people.

December 18, 2008