Auto Accident Information
IN THE BELOW, WE MAY NOT BE TOTALLY CURRENT. WE MAKE EVERY EFFORT TO DO SO, BUT THE LAW AND OTHER INFORMATION IS SO FAST CHANGING THAT WE CANNOT GUARANTEE THE ACCURACY OF EVERYTHING BELOW.
WE ARE NOT CURRENTLY DOING AUTO ACCIDENT CASES. THE BELOW IS FOR INFORMATIONAL AND SELF HELP PURPOSES.
Why the law office of David Blaisdell can best serve your legal needs resulting from your accident.
David Blaisdell graduated from California State University, Los Angeles with a bachelor’s degree in June 1971. He graduated from Southwestern University School of Law in December 1974 with the degree of Juris Doctor. He was admitted to the California State Bar and has practiced law since 1975. He has been a member of the United States Central District Court Bar since 1976 and the Bar of the Supreme Court of the United States of America since 1980. Our office has been in Moreno Valley since 1987. He is married with two children. His hobbies are walking exercise, reading and living. Below are some of the highlights of this office.
Free First Consultation: Our office features a free first consultation on any personal injury case we are competent to represent a client in. At this first free consultation many questions are answered and a “working plan” for the case is developed.
Fee System: Like most offices we have a contingency fee system where the client’s attorney fee is paid out of the settlement. Because we don’t take frivolous cases or spend money for full page ads in the yellow pages or TV, radio or newspaper ads we can charge much more reasonable contingency fees. Usually, if the case is settled within one year of the accident our office receives 25% and the client 75% of the net proceeds. If it goes over one year our office receives 33% and the client 67% of the net proceeds. Note the wording of “net proceeds”. The net proceeds is the money left after the health care costs, doctor bills, court filing fees, prescriptions and other costs are paid.
As an example. If the fee is 25% to attorney and 75% to client and the case was settled within one year for $16,000. The total medical bills and other costs are $4,000. Then the net proceeds would be $12,000. The bills of $4,000 would be paid, then the attorney would receive $3,000 and the client $9,000. Other offices frequently will have the law office receive the percentage without the subtraction of the costs. As an example the other law offices might take the first $4,000 (25% of gross settlement) and leave the costs of $4,000 to be paid by the client. This would leave the client with $12,000 minus the costs of $4,000 which equals only $8,000 for the client.
Personal Injury Law Systems Management: Various documents and information can be brought up on the computer and integrated into various pleadings for your case. Computer technology is utilized heavily by this office to speed services and automate the system. Informational flyers are given to clients to help them understand the case and supply the correct information to our office to prepare pleadings and needed documents.
All phone calls are returned within 24 hours usually by the attorney and not a secretary.
Information On Personal Injury
This is information that may be of help to a client or potential client in a personal injury case. It will outline what happens in a general way.
Things happen very fast after the attorney is retained. Photos of the scene of the accident and, if possible, the vehicle involved. A copy of the police accident report, if there was one and other documents and information is gathered. At the same time the client should be seeking medical or chiropractic attention for his or her injuries. Possible witnesses will be contacted. Letters to the parties involved and the insurance companies will be written. We may write the Department of Motor Vehicles. Notification will be sent to the health providers on representation.
The issues of property damage to the vehicle may have already been settled. Otherwise estimates for repairs should be obtained. Photos of the car. Accessories on the car like air conditioning, power brakes, etc. should be listed for figuring value on Kelly’s Blue Book analysis. Mileage on the car should also be recorded.
After the above preliminaries are finished we must wait for the health of the client to improve. The health of the client is of greatest importance. There will be a waiting time after much of the preliminary evidence is gathered for the client’s injuries to stabilize or heal. This may take a few months or a longer time. Only after the client has, at least stabilized, will a settlement demand letter be written.
The Settlement Demand Letter is a letter usually to the adjuster for the responsible insurance company. It states the facts of the accident, discusses liability issues, lists the damages and expenses and makes a demand for a certain amount of money for settlement. The amount will be discussed with the client before the letter is sent. The letter will discuss two elements in a personal injury case. One is liability. This is basically the question of who is at fault. California used the principle of comparative negligence, under which a party is responsible for his or her share of negligence and the harm the negligence causes. This principle comes into effect when both parties may be somewhat at fault. The other issue discussed in the letter is damages. No only the costs of the medical bills but the past, present and future pain and suffering, lost wages for the future and well as present and other issues will be discussed. The injury to the body and the fact than another injury in the future may occur to the same area will also be discussed.
If a fair settlement cannot be reached a complaint will be filed in court. The complaint is usually filed one year after the date of the personal injury. Once filed and served the defending parties insurance will usually start “discovery” to find out how badly injured you are. Discovery can be interrogatories, depositions, medical examinations and other procedures to find out the exact damages from the defense point of view.
It must be kept in mind that the other side may file what is called a “cross complaint” claiming that you are at fault and asking for money from you. The cross complaint may alleged both property damage and personal injuries. Usually this does not happen but it could. Please be aware of it.
If reasonable settlement still cannot be made the case will usually be assigned to arbitration. This is conducted by an Arbitrator. The arbitration involves an informal trial with witnesses testifying. The Arbitrator then makes his award. The award can be less or more than the settlement offers made by the insurance company. Of importance is that fact that we cannot tell the arbitrator what the settlement offer was and then say we should get more. We will obviously argue for as much as possible. The insurance company will usually ask for less than what their settlement offer was. The insurance company will basically argue for as little as possible. The settlement discussions and figures cannot be made known to the arbitrator. He or she will make their award from the evidence presented to them. The award of the arbitrator could be far higher than the offers the insurance company made previously or far lower than the demand amount we made for settlement. There is risk involved for both sides. We could come out with an award of less than what the insurance company offered in the first place.
If either side is not satisfied with the award the case will proceed to trial. At this point it can become very expensive. Fees for jurors must be posted, the actual doctors may be called to testify and the procedures are far more formal. Frequently the jury trial may be continued a number of times. In actual fact cases are usually settled or go to arbitration. Only a few cases ever go to a jury trial. In addition to not knowing the settlement amounts and offers made the jury will not know what the award of the arbitrator was. However if the jury verdict is lower than the arbitration award then plaintiff must pay court costs. If the verdict is higher then the insurance company must pay court costs. Obviously the case can be appealed. An appeal involves more time and expense.
There is another aspect to procedures before an actual trial. Either party may serve an offer to compromise under C.C.P. 998 upon the other party. This is similar to the above rules on arbitration but are in addition to those rules. If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment, the plaintiff shall not recover his or her costs and shall pay the defendant’s costs from the time of the offer. If an offer is made by a plaintiff is not accepted and the defendant fails to obtain a more favorable judgment, the court may require the defendant to pay a reasonable sum to cover costs of the services of expert witnesses in addition to plaintiff costs. The whole purpose of the C.C.P. 998 offer of compromise is to encourage the parties to settle and not go to court.
This letter has been an overview only. Your actual case may proceed differently. If you have any questions please call this office.
How Much Do You Know About Personal Injury Law? A Quiz
The below is based on California personal injury law. There are many misunderstandings and this helps for a better understanding. Just answer true or false to the below.
1. The tax rate for personal injury proceeds is higher than for regular income.  True  False
2. If you were partly at fault in an accident you will not be able to recover anything.  True  False
3. If your spouse is injured and not yourself, there is nothing you can recover.  True  False
4. In a personal injury case if you wait over one year after the accident before filing in court you are barred under the statute of limitations.  True  False
5. You can sue a governmental agency just like anyone else.
6. A personal injury civil case cannot be work related.  True  False
7. Only a United States citizen can sue in California courts.
8. You can only sue where the accident took place.  True  False
Answers: The answer to all is false.
1. Personal injury proceeds are not taxed. Lost wages, pure emotional distress not caused by personal injury, interest and punitive damages would be, but not the personal injury proceeds. See Internal Revenue Code104(a). The burden is on the taxpayer to find the exclusion.
2. California has the "comparative negligence" concept. Fault can be apportioned and cut down on the verdict or award.
3. The uninjured spouse can sue for "Loss of Consortium".
4. Usually it is one year but various factors can toll or extend the statute and extend the time to file.
5. To sue a governmental agency there are specific claim requirements that must be made before filing a complaint in court.
6. There can be both a workers compensation case and a "third party case" against another party in civil court.
7. You do not have to be a United States citizen to sue in a California court.
8. You can also sue where the defendant lives.
In personal injury cases often people don’t realize how to take a photograph for court.
· You don’t need an expensive fancy camera with lots of bells and whistles. Just a small inexpensive camera is fine.
· It is best to use a camera with negative film. Usually a VCR is not necessary and cumbersome. Just use a simple 35 millimeter camera with negative type film. It is best to have manual wind so if the battery goes dead you can still advance the film and take photos in the daylight.
· It is handy to keep one in your car at all times. Sometimes you can use the camera for evidence photos. Usually it will be used when with a friend, relative, children or whatever and you realize it would be nice to have a photo. Your camera is at home. Having a small inexpensive camera in a cigar box under the seat in your car is handy at times like this. Obviously you would use it for evidence photos also.
· Take a photo of the object like a car or the place of an accident or slip and fall from a distance before doing close up shots. Two or three hundred yards may be appropriate. Please keep in mind that the viewer of the photo should have a "feel" for the surroundings. Take other shots gradually coming closer to the object or place of the accident. Do photos on the line of approach and exit from the scene.
· In taking a close up shot of the place of a slip or fall should be done. However often there is no way to tell how large things are. To give it scale you might put a dollar bill next to it so the viewer can see how large or small the objects in the photo are. Take photos from several different angles.
· If the object being photographed is very small put a quarter or other coin next to the object to show the size.
· To show direction you might put the coin or dollar bill on the side that faces north or towards some large permanent object.
· Take notes when taking the photos that may be used later to help explain things. It should be a photo log or journal.
· Don’t just take one or two photos. Usually an entire roll since the photos will be developed As Soon As Possible to see how they came out.
· Don't throw out bad photos. The other side may think you are hiding something.
· If an auto accident take lots of photos. Photo the entire vehicle, even where there is no damage. Photo the vehicle As Soon As Possible since is may soon disappear.
· Do not rearrange things for the photo. Just take photos as they are when you take the photo.
· You might take a quick panoramic shot of people in the area. You can use it later to find possible witnesses.
· In case of an auto accident, if you can't take measurements, at least photo the skid marks. Skid marks disappear from the road very fast. Take them now. Skid marks are almost inviolate. The theory of what happened in the accident has to fit the skid marks. Obviously take measurements if you have a measuring tape.
· If you have no measuring device make note of non-moveable objects to the side of the road. As an example if the skid mark started about 3 feet past the stop sign and ended about 2 feet before the start of the storm drain on the right side of the street. Photo the skid marks from the side to show the storm drain or stop sign, etc. Also photograph the skid marks from a distance to show if they were straight with the road or curved, etc.
· Do get at least one close up shot of the skid marks to show the tire tread.
· Use a flash. Even in the daylight. Use both flash and regular.
The Most Important Thing In A Photo Is That The Photo Accurately Shows What Was At The Scene.
Often a personal injury case can last many months. Once you have healed and are in a situation to settle the case, various information is necessary. In the settlement letter we write once we are ready to settle we attach various documents. These are necessary to show the other side. They need the following information. Some of it may not apply to you or you are not able to obtain. Still do the best you can.
* Get photos of the scene of the accident, damages to your vehicle and any visible damages to you. Do not shoot just one or two photos. Take several. Try to get a photo of the license plate number of the vehicle. Get several photos of the scene of the accident as soon as possible. Remember that in photos of you it is not important that you look like a model from a beauty magazine. The object in photos is to show your injury.
* Keep any information you have as to the names, phone numbers and addresses of adverse parties who may have been involved in the accident and their insurance carriers. Get the legal and registered owner of the other auto. Write down the license plate number as well as the make, color and model of the other car.
* Get the names, addresses and phone numbers of any passengers in the other car.
* Get the name and badge number of the law officer who comes to the accident scene. Ask the officer where and when you can get a copy of the accident report.
* Make a simple drawing or diagram of the accident. Draw the positions of both cars before, during and after the accident. If there are skid marks on the road, pace them off. If possible get photos of the skid marks. Draw the skid makes on the diagram, noting the distance they cover.
* Make notes on weather and road conditions. If the accident happened after dark, say whether street lights were on. Estimate your speed and the other driver’s. Be sure to note the exact time and place the accident happened.
* Get names, phone numbers and addresses of witnesses who may have observed the accident.
* Get a copy of the police accident report if a report was made.
* Get all physical evidence of the accident capable of being transported (for example, torn clothing, instruments or equipment from the car, etc.)
* Get a copy of you insurance policy on the automobile and any health insurance policy you may have.
* Keep track of all doctors and health treatment providers that you may see. Get a copy of their card when you go to their office.
* Get copies of any medical reports or medical bills. This includes physical therapy.
* Keep copies of your work pay stubs both before and after the date of the accident. Keep track of any sick pay you may have had to forfeit. Get any and all documentation as to lost earnings. A statement from your employer on the employers letterhead would be a help.
* Keep a diary or journal as to changes in your life style because of the accident.
* Please send this office any written statements you may have previously made.
* Keep all repair costs and repair estimates on any property that was involved.
* Keep track of all your “out of pocket expenses” such as towing charges, car rental costs, costs of prescription medicines, etc.
Damages Considered In Personal Injury Cases
The below is a list of the possible damages in a personal injury case. It may be helpful to read this over to give you a “feel” as to the factors the court looks at. If you have any questions please call this office.
1. Compensatory Damages
· Reasonable value of necessary medical expenses incurred prior to trial.
· Reasonable value of necessary medical expenses which are reasonably certain to be incurred in the future; present cash value.
· Loss of earnings and/or impairment of earning capacity.
· Loss or impairment of future earning capacity.
· Pain and suffering, past and future.
· Emotional distress, past and future.
· Loss of consortium. (loss of affection and help from spouse).
· Property damages
· Miscellaneous (examples would be nursing care, necessary household services, etc.).
2. Wrongful Death Action
· Money that decedent would have earned and used to support, maintain and care for his family.
· Loss of advice, counsel, instructions and services in home.
· Reasonable compensation for loss of love, companionship, comfort, affection, society, solace, moral support, loss of enjoyment of sexual relations.
· Funeral and burial expenses.
The Do’s And Don’ts Of A Traffic Accident
Here are some practical tips on what to do when a traffic accidents take place. It will help you avoid costly legal and insurance hassles.
1. Stop No matter how minor the accident, stop immediately. If possible move the cars to the side of the road. Police can usually reconstruct the accident. When someone has been injured, don’t move them or the car.
There are exceptions. For example, you are rear ended at night in an unsafe area. It may be wise to keep going and notify the police as soon as possible. In some cases people have been robbed or assaulted when they got out of their cars.
2. Zip Loose Lips Watch what you say after an accident. Even an innocent: “I’m sorry” could later be construed as an admission of fault. Be sure not to accuse the other driver of causing the accident. Since you don’t know how a stranger will react, you could make a bad situation worse.
Remember that it is not up to you to decide who is at fault. Even if you think you caused the accident, you may be wrong.
3. Give Information. If you are involved in an accident, you should provide your name, address and car registration number to: any person injured in the accident; the owner, driver or passenger in any car damaged in the accident; the police officer on the scene. If you don’t own the car, produce the name and address of the owner.
Give this information even if there are no apparent injuries or damages and even if you didn’t cause the accident. Provide the name of your insurance company as well. However, don’t discuss the amount of your coverage. That might inspire the other person to exaggerate his injuries.
What should you do if you hit a parked car and the owner is not around? Leave a note with your name and other identifying information in a secure place on the car, and then contact the police.
4. Get Information You should obtain the from the others involved in the accident the same information that you provided them. If the other driver refuses to cooperate, get the license number and the make and model of the car to help police track down the owner. Even if the other driver does fully cooperate you should still write down the license plate number of his car, the color and type car also. For your own notes you might write a description of the person or persons involved. There physical description, etc.
5. Call The Police If it is a serious accident in which someone is injured the police must be called immediately. But what if the accident seems minor? Say another car taps you in the rear. If both drivers agree that there is no damage or injury, you each can go your merry way. But that is the exception. Experts agree that exchanging information is always a good idea.
Normally you should call the police to substantiate what occurred. In most cities police officers will come to the scene, even for minor accidents. If they won’t then you and the other driver should go to the nearest police station to file a report. Ask to have an office check both cars.
If you feel you are not at fault, be wary of accepting the other driver’s suggestion that you leave the police out of it and arrange a private settlement. When you submit your $500 car repair estimate several weeks later, the other driver may deny having been anywhere near the accident. If the police weren’t at the scene, you may not have a legal leg to stand on.
Even if you are not at fault, it is a good idea to involve the police. An office will note the extent of the other driver’s damages in his or her report, limiting your liability. Without police presence, the other drive can inflate damages.
6. Identify Witnesses Get the names and addresses of any witnesses, in case there’s a future legal battle. Ask bystanders or other motorists who stop whether they saw the accident. If the answer yes, get the identifying information. Note the names and badge numbers of all police officers o the scene.
7. Go To The Hospital If there is a chance that you’ve been injured, go to a hospital emergency room or to you doctor. The longer you wait, the more you may jeopardize your health and the more complicated your claim may become.
8. File A Report Every driver involved in an automobile accident in which death or physical injuries to a person occur must report it to the DMV (Department of Motor Vehicles). Even if property damage seems only minor it is wise to file a DMV report.
9. Determine How To Pay Talk to your insurance agent as soon as possible after an accident. He or she can help you decide if you should file an insurance claim or pay out of your own pocket.
10. Avoid A Quick Settlement If the other driver is at fault and there is any chance you’ve been injured, don’t rush to accept a settlement from that persons insurance company. You may not know the extent of your injuries for some time. When you definitely have not been injured and your receive a fair offer to cover the damage to your car, you can accept it but make sure the check says for “property damage only” or words to that effect.
A final note is that it is wise to keep a camera in your auto at all times. It does not have to be an expensive camera. A cheapie is fine. Under the drivers seat in a cigar box would be a good place. Bring out the camera immediately in case of any accident and take photos. The camera is handy anyway for photos of friends, family reunions or other times that you forgot to bring a camera. It is a help to have a measuring tape, tablet and pencil to record and write down information if possible.
1. Insurance companies do not pay money willingly. The insurance company can be expected to thoroughly investigate the facts of the accident, the claim for medical treatment, and any past injuries or claims. The insurance company will obtain copies of all past medical records.
Please take photos of the scene of the accident, damages done to you and damages done to your vehicle in the accident. Please get a copy of your auto insurance policy, if you have a copy. If you have health insurance or an HMO try to get a copy of your health insurance policy.
2. The insurance company may hire a private investigator to take movies of any physical activity that you may engage in. The insurance company may even lay a trap for you, such as attempting to hire you to do physical activity, causing a flat tire, or placing something in the yard that will need to be lifted, etc.
3. The insurance company may hire a private investigator who may carry a concealed tape recorder in talking to you or to your friends. You should not discuss your case with anyone, including friends.
4. It will help your case to tell me about any PRIOR INJURY or PRIOR PAIN to any part of your body. Many good cases are lost by the injured person’s concealing or forgetting a previous injury.
5. You should be sure to furnish me with the names and addresses of all doctors who have treated you. Particular attention should be given to all doctors in the local area, where it will be easy for the defense to obtain full copies of the medical records. I do not expect you to remember everything in your medical history; therefore, it is advisable to have copies made of all medical records of the family doctor, etc., so that you may review your own previous complaints to refresh your memory.
6. Insurance companies keep a record of any and all claims against any insurance company. The insurance company is sure to find out if you have ever made a previous claim.
7. Tell your local doctor all of your complaints. The doctor’s records can only be as complete as what you have told the doctor.
8. Keep track of all prescriptions and medicines taken, preferable saving all bottles or containers of medication.
9. Keep a diary of all your complaints. This will help you remember many months later. Also note in the diary how the accident has changed your life style. Mention if the accident caused you to tire more easily, not be able to perform your job or housework or whatever properly.
10. It may be necessary some day to have friends, neighbors or co-workers testify regarding your disability and pain and suffering. Therefore, start thinking about the witnesses you may need in the future.
12. Keep our office advised of any vacation times when you may not be available. An emergency telephone number and an alternative way of reaching you must be in my file at all times.
13. Some of the necessary costs of your injury claim include expenses of the police report, investigation services, filing fees, copying of medical records and medical reports that the doctors submit, medical care, depositions, jury fees, transcripts (if required) and witness fees.
14. If you have other insurance and need help our office will submit your claims, particularly medical payment claims.
15. It sometimes takes many months to settle a claim. In fact, it is dangerous to settle certain types of claims too soon because it often takes a long time for serious injuries to become evident. The amount asked for in the complaint or other pleadings is a figure that will be adjusted up or down depending upon the future development of your case.
TWENTY TORT DAMAGE THEMES OUTLINE
A plaintiff seeking damages must have a positive approach. His job is to impel the court or jury to action. He must move them. They must be made to feel that something positive has to be done to right a wrong.
This requires and active, rather than a passive approach. It means finding and developing one of the themes that lace through most cases. In fact, it is the only way to assure adequate justice for real but hard to measure items of damage sustained by injured persons, such as pain and suffering.
1. MOST PEOPLE HAVE AN UNCONSCIOUS, OR EVEN CONSCIOUS, AVERSION TO TALES OF TROUBLE AND MISERY. It is uncomfortable for them to have to be confronted with unpleasant things. Consequently, the parading and repetition of your client’s ills may count against you. Since there is a tradition in our society to wearing our hearts on our sleeves, it is much better if others describe your client’s troubles. Thus the client can remain silent, or at least understate his difficulties.
2. AGGRAVATION CASES are best treated, where possible, as situations of the catastrophe of healthy people into invalidism.
Good health does not mean perfect health. Emotionally, none of us are free from problems and stresses. However, so long as we are able to compensate, we are regarded as well adjusted and in good mental health. This does not mean the absence of problems, but that we are able to balance them out.
When our eyesight deteriorates, we obtain glasses. That is adjusting! At twenty we may have tried to run the hundred yard dash in ten seconds flat, but by the time we are fifty, we have long since given up trying to sprint altogether. Have you ever watched a fathers vs. sons ballgame? If so, you will know what I mean.
In other words, we have adjusted physically. Our bodies may be full of imperfections, full of the products of the normal growing and aging process, but we are in balance and we are within normal limits.
Comes a blow, an injury from which we do not bounce back and we may be thrown out of kilter. Then, like the one horse shay, from being well persons we suddenly become sickly ones, from useful, gainfully employed ones, we become disabled. This is not mere “aggravation”. This is the disturbance of the whole balance that makes for a useful, viable human being. This is “catastrophe” of invalidism, the change of an asymptomatic person into one beset by symptoms.
If the situation is treated in terms of aggravation and without this insight, it has its own built in limitations! For the very term “aggravation” connotes a base underlying abnormality. It suggests that all that is involved is merely the difference between a previous degree of illness and an increase in that illness or jut its increases or prolongation for some additional time. It does not give full understanding of the full extent of the damage to the injured. That is the catastrophe of the injury.
3. EXPOSURE TO INJURY MAY DESENSITIZE PEOPLE. We quickly become accustomed to things and come to take them for granted. Thus, even the paraplegic or the amputee may be unremarkable to us if we find ourselves continually in his presence. This may numb us to the handicaps, and make us forget much of the tragedy which he has to live continuously.
It may therefore be better to keep the court attendance of such a client to a minimum. Let the human imagination have some play. It may bring fuller comprehension.
4. In the same way, while you are entitled to a broad right to the USE OF DEMONSTRATIVE EVIDENCE (our only and most accurate means of communication is not always just through the impact of words on our ears, but by the use of all our senses), it is not always advantages to employ it. Use it to accent the testimony or make the testimony clearer.
5. In substantial injury cases where the COMPUTATION OF DAMAGES may run to large amounts, caution is often necessary to prevent an impression of overreaching. This is particularly true when your jurors are people unaccustomed to dealing with large sums. It is best to acknowledge that the amount involved is large, and place emphasis on the fact that the size of the loss is a measure of the extensiveness of the wrong done rather than of the amount sought. This can make all the difference in the world.
6. It must be made clear that the plaintiff is not there because he or she is self seeking, accident prone or litigation conscious (as the defendant would love to project him). HE IS THERE BECAUSE THE DEFENDANT COMPELLED HIM TO BE A PLAINTIFF BY DOING INJURY TO HIM. Since the plaintiff is a reluctant suitor, is he not entitled to the benefit of the doubt in the weighting of the uncertain factors involved?
7. When a human being suffers an injury the IMMEDIATE IMPACT MAY BE IN A LOCAL AREA OF HIS BODY BUT ITS EFFECT MAY BE ON THE ENTIRE PERSON. For instance, an infected finger causes pain that courses through the entire nervous system, it may cause sleeplessness, irritability, influence the entire personality, produce inability to do work that does not involve the hands at all, etc. To prove, then, only the acute finger condition by itself would be to grossly understate the situation.
8. A plaintiff makes a mistake when he cast his case in terms of sympathy. PLAINTIFF IS BETTER OFF TO MAKE HIS APPEAL FROM THE HEAD RATHER THAN THE HEART.
The average juror sees himself as clothed in the robes of a dispenser of justice. He wants to do his civic duty and to “do the right thing”. He wants an appeal to logic. A plaintiff then should not rely all on sympathy. The logic type arguments should be made.
9. THE RETURN TO WORK BY THE INJURED WAGE EARNER is often perceived as a sign that the worst injury aspect of a case are over. The person may have to do it because of money. If he returns part time there is still plain and suffering. It continues and that is why he is only able to work part time.
10. MOST PEOPLE DO THE EQUIVALENT OF TWO JOBS. When they are through with the regular employment, they help their wives with housework chores, guide their children in educational and recreational activities, run errands in their cars, do the family bookkeeping, take on the duties of a handyman or work on money saving hobbies like fixing the home up.
11. SOME PEOPLE ENJOY THEIR JOB VERY MUCH. The job is more than just money coming in. It is a hobby and way of life. By not working it hurts their personal life also.
People who do not enjoy their jobs may have a HOBBY OR RECREATION THAT MAKES THE JOB TOLERABLE. When they lose their job they may also not be able to take part in the recreation that makes the job tolerable.
12. In most personal injury cases, even where the injury itself has become stabilized, INCREASING TROUBLE MAY BE EXPECTED IN THE FUTURE, because of the injury. This is because the natural vitality which permits us to overcome the attrition of existing illness or injury becomes less effective as we get older.
13. A CAREFUL CHOICE OF LANGUAGE can help your case. This is especially true on cross examination. Cross examination is your rightful opportunity to “testify”. That is to put things in your words. You should choose them wisely.
14. JURIES WILL RESPOND MORE GENEROUSLY TO NEED RATHER THAN REWARD. The justice of compensating an amputee who has been victimized by another person’s carelessness will be obvious. But, if that is the basis on which you make your request for a verdict, it is not likely to be nearly as large as when there is a showing of the immense sums that will be required to help with the handicap.
15. THERE IS A GREAT DISTINCTION BETWEEN MEDICAL AND VOCATIONAL DISABILITY. The prevailing industrial hiring practices may eliminate the partially disabled man altogether. He become the last to be hired and the first fired. As the marginal employee, there may almost never be a job for him. Personnel will not put up with special needs for shorter or different hours. There may be frequent absences for medical treatment. The employee has limited flexibility. They are vulnerable to further injury. In spite of the Americans With Disabilities Act personnel will find reasons not to hire the disabled person.
16. In most personal injury cases, THE LARGE DOLLAR AMOUNT OF DAMAGES WILL BE THAT ASCRIBABLE TO PAIN AND SUFFERING. No matter how great its value, it cannot be measured by a precise mathematical approach.
Consequently, in the average sized case, it is a mistake to introduce bills for special damages in petty amounts. It set the mind thinking in such sums. The astute defendant’s lawyer, as a counter, will often ask a medical witness about a small bill where you do not.
17. HOSPITAL RECORDS CAN MAKE DULL READING. They also mean little when chock full of medical terms and symbols.
18. LOSS OF SERVICES ACTIONS should receive more attention. A spouse who has an injury has loss of consortium as well as having to help the other spouse more. Housework and child rearing become a task for only one parent.
The fact that most marriages find the groom older than the bride combines with the shorter life expectancy of the male to assure a likely period of widowhood.
19. INFLATION IS A FACTOR in that the awards in permanent disability cases made in terms of today’s value will ultimately turn out to be unjust. Also computers and automation give assurance that every wage earner will receive larger real wages by way of more dollars, even in the unlikely event that they remain stable. This positive opportunity is lost to the man who can no longer be gainfully employed. Expert testimony on inflation may be called for.
20. FRINGE EMPLOYMENT BENEFITS ARE A MAJOR FACTOR. Loss of a job due to injury also cuts off medical and dental plans, vacation pay and other benefits. Be sure to ask the client for employment benefit information.
DIRECT AND CROSS EXAMINATION OF AN ACCIDENT RECONSTRUCTION EXPERT
Counsel may want to call on an accident reconstruction expert to help prepare and litigate a wide range of cases, including slip and fall, products liability and transportation, construction industrial and electrical accidents cases. In the case of an automobile accident, for example, the accident reconstruction process may include analysis and expert testimony with respect to skid marks, stopping distances, friction to the road surface, visibility, speed and movement before, during and after impact, point and angle of impact and performance of brakes, the steering system, the throttle system, the automobile’s suspension, tires and wheels, the fuel system, passenger restraining systems and electrical systems.
There may be “human factors” experts that can provide evaluations of reaction times and of the effectiveness of cautions and warnings. An expert in the related field of biomechanics or bioengineering may be useful in providing analysis and explanations of the effect of forces and motions on the human body. In accident cases involving a machine or device whose operations is not generally understood, such as an airplane or a vehicle’s automatic transmission, counsel may also want to call upon an expert to explain how the machine or device operates.
We should consider using a accident reconstruction expert in every case arising out of an accident or product failure, especially when eyewitness testimony is unavailable or thought to be unreliable.
Timing in selecting an accident reconstruction expert may be critical to the expert’s effectiveness, and thus to the outcome of the case. The physical evidence remaining after an accident is often extremely important to reliable and persuasive accident reconstruction analysis. The longer we wait to retain an accident reconstruction expert, the more likely such evidence will be altered or destroyed. Also, delay in retaining an accident reconstruction expert may deprive the expert of the time necessary to develop and prepare to explain a proper and convincing analysis of an accident.
1. Check the obvious theory of the case
(a) For plaintiff counsel, determine the extent of plaintiff’s negligence, if any.
2 Determine what physical evidence remains from the accident
(a) where evidence is located
(b) who owns or has custody of the evidence
(c) determine chain of custody of evidence
3. Establish preliminary goals
(a) positions counsel would like the accident reconstruction expert to prove or disprove
4. Develop initial analysis of the situation based on information counsel has.
SELECTION OF AN ACCIDENT RECONSTRUCTION EXPERT
· When to use an accident reconstruction expert
· Locating an accident reconstruction expert
· Selecting an accident reconstruction expert
· Accident reconstruction by computer
PRETRIAL INVOLVEMENT OF THE ACCIDENT RECONSTRUCTION EXPERT
· Automobile accident reconstruction
· Aviation accident reconstruction
· Electrical accident reconstruction
· Photographs of accident site
· Preliminary conference with the accident reconstruction expert
· Trial preparation of the accident reconstruction expert
THE ACCIDENT RECONSTRUCTION EXPERT’S PRETRIAL REPORT
· General information
· Information gathered by the accident reconstruction expert
· Calculations prepared by the accident reconstruction expert
· Demonstrative evidence prepared by the accident reconstruction expert
· Contents of the pretrial report
ADMISSIBILITY OF EVIDENCE
· Admissibility generally
· Auto accident evidence
· Aviation accident evidence
· Human factors evidence
· Demonstrative evidence
· Computer generated evidence
DIRECT EXAMINATION OF ACCIDENT RECONSTRUCTION EXPERT
· Direct examination generally
· Identification of the accident reconstruction expert
· Profession or occupation and licenses
· Associations and affiliations
· Published scholarly works
RE: PREPARATION FOR TESTIMONY
· Bias of accident reconstruction expert
· Sources of knowledge about facts
· Written statements and reports
· Writings read or reviewed
· Consultation with others
· Physical evidence examined or inspected
· Tests of experiments conducted
· Exhibits and demonstrative evidence
· Governmental agencies involved
RE: OPINION TESTIMONY
· Definitions and terminology
· Hypothetical questions and examples
· Automobile accident
· Aviation accident
CROSS EXAMINATION OF THE ACCIDENT RECONSTRUCTION EXPERT
· Identification of the accident reconstruction expert
· Profession or occupation and licenses
· Associations and affiliations
· Scholarly or professional articles published or not published
· Other experts acknowledged to qualify as experts
· Alternative schools of professional thought
· Bias - past experience as an expert witness
· Bias - relationship to parties and counsel
· Bias - fees
RE: PREPARATION OF TESTIMONY
· Introduction to facts
· Pretrial reports and written statements
· Sources of knowledge about facts
· Preparation for testimony - writings, records and documents read or reviewed or not read or reviewed
· Physical evidence inspected or examined or not inspected or examined
· Tests and experiments done and not done
· Consultation with others
· Treatises, books and articles consulted or not consulted
RE: BASIS FOR OPINION
· Attacking documents, records, exhibits and demonstrative evidence
· Aviation accident.
This is information and a checklist on bystander damages in PI cases. This is from 1995.
1. Bystander damages can be compelling serious and easily identified with a jury.
2. Do not let the adjuster convince you that bystander damages are a product of overzealous, unethical lawyers encouraging fake plaintiffs.
3. Bystander damages can stand on their own, but they can also be used as substantial leverage to produce a favorable settlement to the physical injury claim.
4. The law in this area is in process of substantial change. Make the adjuster aware of the recent cases and trends.
5. In the bystander area do not rely on past knowledge. Check for recent developments
6. If you bring a bystander claim know the elements of proof required by your jurisdiction. Judges will, as a rule, hold you to strict proof in this area. The insurance induced paranoia about “fraudulent cases” extends to a fair number of judges. If cut off in presentation, do not forget to make an offer of proof.
7. Focus on the initial shock with all witnesses and experts. It is key to causation an key to diffusing the ongoing innuendoes that the case is fake.
8. Be on the lookout for bystander statements made immediately following witnessing the accident, victim or both. Federal Rules of Evidence 803 (3)
9. Keep in mind that the plaintiff’s prior consistent statement can be used to rebut the proposition that the current condition is a recent fabrication in order to make a case. Federal Rules of Evidence 801 (d)(1)(B)
10. Be on the lookout for witness statements of the immediate condition of the bystander made contemporaneously after viewing the accident and/or victim. Federal Rules of Evidence 803 (2)
11. Even though the “physical manifestations” requirement is getting broader or completely eliminated, stress any physical manifestations whenever possible. They greatly buttress the distress aspect of the case and reduce the constant innuendoes that your case is a fake.
12. If you can satisfy the more mechanical elements of this cause of action (relationship of the parties, proximity to the accident, etc.) the key to this complaint is to demonstrate that the mental problems arise from the shock of viewing the accident or the victim or both. Gear your proof to this fact.
13. Use non-family corroborating witnesses whenever possible.
14. If in the final analysis your claim is weak, drop it.
15. Children tend to internalize, so their injury might not be very apparent. Early consultation with an expert is important.
16. When alleging emotional distress, use experts if possible .A psychologist might do if the stress does not amount to a mental disorder.
17. Try to visualize a bystander case as resulting from an assault to the nervous system based upon viewing certain events that happen to a defined class of persons.
18. Do not become completely wrapped up in a Dillon type analysis. It may be possible to avoid Dillon and proceed as a direct action plaintiff as opposed to a bystander, in which case many of the Dillon requirements do not apply. This seems particularly true in a doctor patient setting.
ORGANIZATIONAL TABLE FOR BYSTANDER CASES (NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS)
A. The required relationship of the parties
· Parent - injured child only (Dillon)
· Husband - wife, parent - child, child - child (or vice versa) (Ferriter)
· Daughter - Stepmother, Foster mother and child (Leong, Mobaldi)
· No defined relationship (James, Paugh)
B. Degree of proximity to the accident
· Plaintiff in the zone of danger (Grossman)
· Plaintiff is a bystander in close proximity to the accident (Dillon)
· Plaintiff is in general area of accident and saw victim at scene closely after the accident (Corso, Dziokonski)
· Plaintiff not in general accident area, did not witness the accident or view the victim at the accident or saw victim in hospital (Mobaldi, Gerriter, Paugh)
C. Proof of initial shock and emotional distress
· In varying degrees this is required by all jurisdictions. You should have facts which indicate that the emotional injury resulted from a contemporaneous assault upon the sensory system from observing the accident.
D. Proof of long term physical manifestation of emotional shock
· Many states require some objective symptoms of the mental injury. However, the requirements are becoming more and more remote.
· Abandoned objective-symptomatology requirement (James, Campbell, Sinn)
E. Degree of injury needed to victim
· Actual serious injury or death (Portee, Versland)
· Need and injury (Dillon)
· None - only need fear of an injury (Paugh)
F. Degree of injury needed to bystander
· In general, the degree of injury to the bystander goes to the damages and not to the cause of action. Serious emotional or physical injury required (Corso, Richey, Dziokonski, Lejeune)
G. Nature of event required to trigger bystander distress
· Need and accident (most cases)
· Need an act of negligence but not necessarily an accident (Ocha, Lejeune, Mobaldi; broad test) (Thing, Frame: restrictive test)
LOSS OF CONSORTIUM AND ENJOYMENT OF LIFE CHECKLIST
Injury to a person does not occur in a vacuum. For every injured person, there are others who will suffer loss as a result of the disability or personality change of the injured party. Loss of consortium and services damages, where allowed, are intended compensate family members for the havoc, lost expectations and unhappiness which is inflicted upon them as a result of a major injury to a member of the family unit.
Sexual dysfunction and loss of consortium caused by vehicle accident see Randolph v. Budget Rent A Car at 878 Fed Supp. 162.
These are not “parasitic” damages. A serious injury to a husband can turn a wife’s life into an endless cycle of drudgery, chores, abuse, pain and unfulfilled expectations. A child can grow up with a father who can never throw a ball, play a game or laugh. A husband may never be able to dance with his wife again.
CHECKLIST: LOSS OF ENJOYMENT OF LIFE
1. Break loss of enjoyment into two sections. The first deals with so called hedonistic damages and the second with the impairment caused by the injury.
2. Think in terms of the impact of the injury on the destruction of the previous life style of the plaintiff.
3. The loss of enjoyment must proximately relate to the injury. If you cannot relate it or it is to tangential, do not use it.
4. Use before and after analysis and corroborate as much as possible with non-interested parties (non-family members)
5. Do not let a loss of enjoyment claim get submerged in the general damages claim. It is a distinct element of damage, which is rooted in the right to the full unfettered use of the body for both daily life and pleasurable activities.
6. The loss of certain activities may have a greater impact on a jury than others. Some of this is cultural. Some of this can be prejudice. This does not mean you should drop these elements, but that you should tailor your presentation to deal with the problems they may present.
7. Loss of enjoyment is not an all or nothing proposition. Diminished ability is very sufficient to give rise to this damage element.
8. Do not let the plaintiff exaggerate a loss of enjoyment claim. A solid claim, somewhat downplayed, will speak for itself.
9. A good case can be severely compromised if the insurance investigator catches the plaintiff (or develops evidence from witnesses) that plaintiff is engaging in an activity which he claims is prevented by his disability.
10. Explain to the plaintiff that the diminished (as well as the total) ability to participate in an activity is a damage element.Ask the plaintiff, “Have you participated in the sport on any level, no matter how basic and not matter how little it represents or looks like what you were doing before?” Many plaintiffs view their considerably diminished ability to engage in an activity as being similar to not doing it at all. When asked, they may deny participation.
MEDICAL AND HOSPITAL RECORDS AND HOW TO READ A MEDICAL REPORT
This is a collection excerpts from several articles on medical and hospital records. I have only abbreviated the notes as to what the articles say. For more information the full documents themselves will be in the PI file boxes.
· A good medical dictionary is Taber’s Cyclopedic Medical Dictionary. It is an excellent resource. It provides through explanations of medical terms, generally in plain language and also provides helpful background information.
· Grays Anatomy is necessary because medical dictionaries are usually not competently or thoroughly illustrated.
· The Merck Manual lists nearly every disease known to man and summarizes key details of each condition. The disease, its cause, its treatment and the management of the patient with that disease are all discussed in only one or two pages.
· The Physician’s Desk Reference (PDR) helps in identifying medications and their side effects.
UNDERSTANDING HOSPITAL RECORDS
Hospital records may differ in form, but generally they contain essentially the same information. Records must be signed and authenticated by the members of the hospital staff.
Contents of a patient’s hospital record include an admission record and a clinical record.
The CLINICAL RECORD is a continuously maintained daily history of the care rendered to the patient during hospitalization. This is a source of information for all medical and nursing personnel who treat the patient, this record is kept at the nurses’ desk. Bedside records and graphic sheets, which are often kept in the patient’s room, are later added to the chart. As part of this record, physicians record their impressions and types of treatments. Nurses chart the patient’s daily progress.
PHYSICIAN ORDER SHEET is usually found in the front of a patient’s chart. Medications, diets or treatments ordered by a physician are listed there. A physician usually writes the order himself, but if it is entered by the nurse, she clearly marks the entry with the initials PO to indicate an order communicated by phone or VO to indicate a verbal order. Most hospitals require the physician to sign the order at his earliest opportunity.
PATIENT HISTORY SHEET. This usually includes information obtained from the patient himself concerning past ailments and the like.
NURSES NOTES are a chronological clinical picture of the nursing care rendered, beginning with the patient’s admission, when a nursing assessment is usually done.
The nurses notes indicate little more than whether the physician’s orders are being carried out and nursing is being provided, in addition to comments about the patient’s treatment and attitude. The nurses’ notes may also indicate the times the patient spent in other areas of the hospital, such as physical therapy and whether he has been receiving visitors.
PHYSICIAN’S PROGRESS NOTES are the physician’s own chronological log of the patient’s condition. Doctors do not always note every time that they visit the patient, so a gap in dates does not necessarily indicate that a physician neglected to check on the patient that day. Nevertheless, a long period of time between entries may indicate that the physician has not met the acceptable standard of care in the area.
GRAPHIC CHARTS include vital information such as pulse, temperature, respiration, and blood pressure, called the patient’s vital signs.
INCIDENT REPORTS are used to study the causes of accidents or incidents in the hospital is an important administrative tool.
UNDERSTANDING THE MEDICAL RECORDS. The attorney should begin by putting the record in chronological order. Related parts, such as nurses’ notes and progress notes, should be placed together.
A good way to begin examining the record is to review all the events occurring on a certain day.
CHANGING RECORDS IN MEDICAL RECORDS. Errors in a patient’s medical record should never be erased. If the wrong chart is marked or other error made, the proper procedure is to draw a line through the writing, mark “error” above it, and initial the record. The proper entry should then be made underneath the erroneous one. The original erroneous entry should remain legible, however, no matter how the correct entry is made.
WORKING WITH MEDICAL EXPERTS. There are three classes of physicians in personal injury cases, who may be arbitrarily classified as:
· Treating. The treating physician is usually the first medical expert in a personal injury case. He is the initial physician to manage the patient’s injuries after the traumatic event.
· Follow up physician. The follow up physician is usually a specialist.
· Reviewing physician. The reviewing physician examines the patient to form an opinion of the nature and extent of the person injury. He is not, and has never been, involved in the patient’s treatment. By definition a reviewing physician has a special expertise in a field applicable to the patient’s injury.
SOAP: Physicians often use a standard format called SOAP (Subjective, Objective, Assessment and Plan) charting when writing their progress notes. Using a SOAP approach, the physician can quickly and logically lay out his thought process and provide guidance for other caregivers.
MEDICAL RECORDS OF HOSPITALS
The design and arrangement of hospital records differ from one hospital to another.
ADMISSION NOTE. The admission note records the history and physical done by the admitting physician. It is supposed to be recorded, according to most hospital bylaws, within 24 hours of the patient’s admission to the hospital. This is not always the case. It is common knowledge that they are sometimes dictated together with the discharge summary long after the patient has left the hospital. It is important therefore to look at the date when the note was dictated and also the date on which it was transcribed by the medical records secretary.
Admission notes were formerly a handwritten scrawl and therefore usually valueless to attorneys; but to most hospitals not only have a dictation system, but require the doctors use them. This means that there are at least legible. The admission history and physical should contain the following:
1. List of complaints: This should, strictly speaking, include not only the ones that are active and currently under investigation or treatment but even those that are inactive or under good control. This is sometimes call the problem list.
2. A narrative of the events: that lead up to the admission, covering at least the major problems. This would include the details of the patient’s problem, when it first began, the course of the complaint, etc.
3. Past medical history: this should note any surgeries or serious medical problems in the past. Current as well as past medications are usually included here, and they provide important clues as to the patient’s past and present illnesses.
4. Family history: If relevant this should be included, mentioning perhaps heart disease, diabetes, hypertension, cancer, etc.
5. Social history: Would include such things as the patient’s marital history, occupation, and hobbies. Social class may be entered here as measured on a scale of I through V. This is not snobbery but important epidemiological data. All of these things, including social class, can make certain diseases more likely than others.
6. Personal history: is usually included which records such personal matters as the patient’s use of tobacco and alcohol
7. Allergy list: This should be printed on the outside of the chart, and is usually prominently displayed in the case of penicillin allergy or allergy to iodine. The latter is important because iodine is a component of most of the contrast dyes used in making x-ray pictures.
8. List of systematic questions (S/Q): This is sometimes knows as the review of systems (R/S). The patient is questioned about each system in the body in turn, the digestive system, joints n muscles, heart, chest, etc. If this is done systematically and thoroughly, diagnosis is usually more accurate, and the possibility of overlooking a major problem is minimized.
9. Physical exam of patient: This may be done in a number of ways. Different doctors do it different ways. The record of the physical examination should at least contain the patient’s blood pressure and heart rate, the auscultation of the chest, the palpation of the abdomen and the presence of any masses in the breast or elsewhere.
10. List of provisional diagnoses: This should represent the opinion of the doctor at the time of admission. Of course, if it is dictated at the same time as the discharge summary, it involves a greater degree of hindsight.
Histories can be difficult to read because of the number of eponyms (terms derived from someone’s name (such as McBurney’s point) and acronyms (such as perla meaning pupils are equal, react to light and accommodate).
ORDER SHEET. This comes in many types. The simplest being those where there is a vertical line dividing the page in two and where comments and assessments are made on a daily or alternate day basis down one side and the orders written on the other. The advantage of such a system is that the orders and the assessments are side by side and each explains the other. In some hospitals orders and progress notes are mixed together on the same page, in which case it can be difficult to distinguish comment and assessment from orders. Both of these are now rather uncommon. Usually nowadays the order sheet and the progress report are separate parts of the chart, and you must jump back and forth between the two to relate them. This makes life harder for doctors who are temporarily caring for other doctors’ patients and who need to quickly assess what has been done for them and why. It is also more difficult for lawyers.
PROGRESS NOTES OF DOCTORS. Doctors progress notes, like the orders, are written, and there is the problem of legibility. In most hospitals, it is mandatory to have at least some progress notes on the patient’s condition every second day.
In teaching hospitals, where junior medical staff abound, handwritten progress notes are numerous and (as a rule) lengthy. In these hospitals, an admission note (five pages long) maybe written by a medical student, followed by two pages from the junior admitting interns, one page from the resident, a paragraph from the chief resident, and a single line (“concur substantially with the above, will follow”) from the consulting physician. Every time a consultation from another service is called for, a similar routine is called into play. The medical student, an intern on the service, a resident and the consultant may all show up in turn and all write in the chart.
One way or another there can be a wealth of material found in the progress notes, and much of the art of the lawyer working with medical records is facility in reading them.
NURSES NOTES. Nurses notes should not be despised by the lawyer. They generally have at least one merit - the handwriting is legible.
Risk management courses for nurses dwell a great deal on medical records and encourage nurses to be very factual and honest in their notes about such things but to avoid comment. This may well be the most rewarding part of the chart for he lawyer. Nurses are usually meticulous and are trained and required to record what they see and what they hear. It is the duty of the attending physician to review the nursing notes at least daily. This not only informs the doctor about the patient’s condition but is necessary in order to keep nursing care under review.
Unfortunately, the nurses notes are frequently destroyed when the hospital records are sent to be microfilmed.
LAB SLIPS AND REPORTS. The lab slips and reports from the various diagnostic facilities in the hospital usually come at the back of the chart.
DISCHARGE SUMMARIES. The final important items is the discharge summary. Many of the problems mentioned in connection with the admission history and physical hold true for the discharge summary. It may be dictated sometime after the patient’s discharge, and most hospitals have the rule that unless discharge summaries are completed by the end of the current month, the doctor can no longer admit elective (non-emergency) patients into the hospital.
The date of dictation of both admission history and physical and discharge summary are therefore, as has been previously stated, important.
Nevertheless, the discharge summary, even a bad or a fraudulent one, is the logical place to start reading a bulky medical chart because it provides rapid acquaintance with the gist of the matter, a review of the entire hospital admission through the eyes of a treating physician. It is a lot easier to supplement and correct the story told in the discharge summary than to dive into a large inchoate mass of notes and reports in a desperate endeavor to find out what was going on. The discharge summary also has the merit that it is normally dictated and transcribed so that there is no problem reading the writing.
The discharge summary should include the initial complaints; the initial findings; the provisional diagnosis; the diagnostic tests; the course in hospital, including a report on any surgical procedures; and the final diagnosis and discharge plan. A really good discharge summary should ideally make the reading of the whole chart unnecessary. Yet even if one were fortunate enough to meet with a discharge summary of this quality, the lawyer must still study the rest of the record because legal and medical purposes differ.
EMERGENCY ROOM RECORDS. They are very similar to hospital records except:
1. The chart is for immediate use and therefore is normally handwritten.
2. The ER history and physical, because of the pressures of time ,must usually be more cursory than the full exam that is expected on a hospital admission.
3. The plan of treatment is much less within the control for the ER doctor than is the case when an attending physician treats a patient.
4. Finally, the instructions to the patient, important in all medical plans, are supremely important in the ER situation. The ER doctor may not be back to the hospital again for a week or more.
HORIZONTAL REVIEW OF MEDICAL RECORDS
From a personal injury and disability point of view, treatment or change in treatment may not be necessarily indicated, but many clues and points of evidence may be extracted with this methodology. For example:
1. Increased pain with ultrasound physical therapy might be indicative of nerve compression not previously suspected
2. Increased pain with traction indicates ligament separation
3. The color of fluid aspirated from an injured knee joint may establish a ligament, cartilage or vascular damage.
4. the incidental finding of narrowing of intervertebral spaces remove from the injury site may indicate a susceptibility to disc disease ,the presence of arthritis or symptoms to be expected at a later date.
5. Adverse or allergic responses to medication used primarily for the treatment of the primary trauma cause additional injury
6. The type of antibiotic used indicate severity and sometimes the origin of the infection.
7. The length of treatment is an indication of a tendency towards chronicity.
GLOSSARY CONCERNING MEDICAL RECORDS
aa Each eye
AAL. Anterior axillary line
a.c. Before meals
ad-lib. As desired by patient
A.P. Anterior-posterior regarding x-rays
B.E. Barium enema
B.I.D. Two times a day
B.P. Blood pressure
B.S. Breath sounds or bowel sounds
C.B.C. Complete blood count
C.C. Chief complaint
cc. Cubic centimeters
C.N. Cranial nerves
CVA. Costovertebral angle
C. Pertaining to (fifth) cervical vertebra
DTR’s Deep tendon reflexes
D[-5] Pertaining to (fifth) dorsal vertebra
ECG or EKG Electrocardiogram
H&P History and Physical
HEENT Head, ears, eyes, nose and throat
HPI History of present illness
HS At bed time
iu Infra umbilical
VIP Intravenous pyelogram
L&A Light and accommodation
LCM Left costal margin
LLQ Left lower quadrant (of abdomen)
LUQ Left upper quadrant
L[-5] Pertaining to (fifth) lumbar vertebra
MAL Midaxillary line
NPO Nothing by mouth
od Right eye
os Left eye
ou Both eyes
OT Occupational therapy
PA Pertaining to posterior-anterior in x-rays
P&A Percussion and auscultation
PAL Posterior axillary line
pc After meals
PE Physical examination
PH Past history
Pi Present illness
p.o. By mouth
p.r.n. As needed or desired
P.T. Physical therapy
PTA Prior to admission
q.a.m. Each morning
q.d. Once a day
q.i.d. Four times a day
q.h.s. Each bedtime
q.4h., q.8h Every four hours, every eight hours
RCM Right costal margin
RLQ Right lower quadrant
ROS Review of systems
RUQ Right upper quadrant
t.i.d. Three times a day
t[-5] Pertaining to (fifth) thoracic vertebra
TPR Temperature, pulse and respiration
vs Vital signs
z-1 One teaspoon full
z-ss One half teaspoon full
If we send a patient to an independent medical examiner for examination we should describe the situation. The following are examples of indications of abnormal ongoing process:
· Temperature: Indicates significant arterial decrease or increase, venous congestion, inflammation, infection, spasm or a traumatic arteriovenous fistula.
· Color: Depends on the presence of edema, inflammation and infection, bruising, bleeding, vascular damage and somatic and autonomic nerve change.
· Texture: The same
· Size: This is altered by spasm, atrophy, rupture (partial or complete), inflammation, decreased or increased use, or blood or fluid accumulation.
· Tissue consistency: Altered by edema, the presence of extravascated blood or fluid, viability and fibrosis.
· Tenderness: An important sign of injury and associated with decreased function
· Pulses: These signify the condition of the arteries and are an indication of local vascular demand
· Venous return: Abnormal conditions of the veins indicate a venous disturbance, or a change in local soft tissue perfusion.
· Bruits: Evidence of arterial injury and/or arteriovenous fistula
· Sensation: Indicates the condition of superficial and deep sensory nerves as well as central nervous system function
· Range of motion: Depends on the condition of the muscles, tendons, ligaments, joints. The degree of mobility should be measured and recorded using a goiniometer
· Strength: Significantly related to muscles, tendons, ligaments, joints and vascular and nervous innervation.
· Spasm: Its presence is due to irritation or injury anywhere along or within the musculotendinous axis, or to central nervous system damage.
· Coordinated function: Examined by indirectly observing a complicated activity involving more than simple movement of one muscles group (such as dressing or undressing). It depends o the viability and integrity of all soft tissues involved in the action. Normal function does not rule out soft tissue injury, but abnormal function is objective evidence of an existing pathologic condition.
· Laxity: Evidence of ligaments damage or of problem with the musculotendinous cuff surrounding a joint.
· Crepitus: An indication of tendonitis, bursitis, synovitis, inflammation or calcified deposits within the soft tissues
· Effusion: Signifies intra articular joint injury
· Joint mice: This noise is created within a joint by a bony or cartilaginous foreign body.
· Deformity: Any deformity, including kyphosis, lordosis or scoliosis may represent soft tissue damage or injury to the surrounding areas
· Atrophy: Due to soft tissue immobilization, rupture, scarring, disuse. misuse or death.
· Hypertrophy: An “excess” response of a musculotendinous unit or group such as in substitution for a nonfunctional unit.
· Dystrophy: See spasm
· Reflex change: Usually indicates central nervous system or peripheral nerve involvement, but may indicate local soft tissue damage
· X-ray: Changes in joint size and shape are due to soft tissue changes in the immediate vicinity. An arthrogram indicates the condition of the intra-articular cartilage
OTHER DEFINITIONS THAT MAY BE OF HELP
· Subjective and objective: Symptoms may be either subjective or objective. Subjective symptoms are complaints described and felt by the person being examined, but not sensed by the examiner. Pain, numbness and tingling, are typical subjective symptoms. Objective symptoms and signs are those that may be observed or felt by an examiner such as swelling, crepitus and spasm. A person having very significant subjective symptoms and complaints, and no objective findings may cause the examiner to seriously question the severity of the injury, but only if the previously mentioned findings are all normal.
· Skin and subcutaneous tissue: Skin and subcutaneous tissues are noted for contusions, abrasions, lacerations, thermal, chemical and radiation injuries. The color, texture, temperature and elasticity is to be observed. Contusions and hematomas are noted.
· X-rays: X-rays assist in the diagnosis of fractures and dislocations and the presence of foreign bodies. X-rays can also document the various stresses on joints as well as the condition of intra-articular and periarticular soft tissues by evaluating the size of the joint spaces, alignment and the condition of articular surfaces.
· Acute, subacute and chronic: These three terms, so commonly used, mean different things at different times. When related to soft tissues injuries it should be determined whether they relate to histology, physiology or time. In the microscopic (histology) evaluation of tissue, acute soft tissue injury refers to the presence of edema, fresh blood, capillary rupture, musculotendinous disruption, tears in elastic tissue and the infiltration with leukocytes (macrophages). As the injury becomes subacute, lymphocytes replace the leukocytes, edema disappears or changes in character, and capillary repair is evidence. In the chronic phase, only lymphocytes can be seen and fibrous tissue is being deposited. Some injured tissue may be seen to be reproducing itself.
Physiologically, acute refers to use limitations due to inflammation, edema, temporary vascular insufficiency, spasm or disruption. Subacute refers to the recovery process and chronic signifies the residuals after recovery and healing, such as contractures, scar formation, atrophy, shortening, weakness and sensory loss, with no change anticipated.
When related to time they may mean different things.
· Contusions: A contusion is commonly known as a bruise. It is caused by blunt force which ruptures small blood vessels causing bleeding into these tissues.
· Abrasions: An abrasion is a superficial wound caused by a friction or scraping in which several top layers of skin are removed.
· Lacerations: A laceration, cut or wound is a tearing or incision penetrating into the closed body tissue and should be evaluated as to what underlying injuries were injured by this trauma.
· Strains: A strain is damage to or tearing of a tendon or muscle. Strains may run the entire gamut from a mild stiffness to complete rupture of the musculotendinous unit.
· Sprains: Sprains are injuries in which ligaments are partially or completely stretched or torn. A ligament is a thick fibrous band connecting two adjacent bones.
· Dislocations: These are the displacement of normally articulating ends of two or more bones and always imply a tearing and disruption of the stabilizing ligaments of that joint. When displacement is incomplete, it is known as a subluxation.
· Rupture: A rupture in a muscle or tendon may be partial or complete.
· Tenosynovitis: A tendon is covered with a glove like sheath in which it slides protected by a very fine lubricant. Trauma to the tendon and to its surrounding structures may cause inflammation, swelling and the development of a thicker fluid within the sheath.
CHECKLIST ON LOST INCOME FOR THE SELF EMPLOYED
1. When you have a self employed person, think in terms of the economic value of lost opportunity to determine loss of earning capacity. Lost opportunity is not limited to a demonstration of lost income of profits, although this is one method of showing the lost economic value can be projected into the future of the injured party.
2. Pick the method of proof which reasonably represents and best portrays the “best case scenario” with respect to placing an economic value on lost earning capacity of the plaintiff. In this regard, use some imagination and take some time to get to know the working of the plaintiff’s business and accounting methods.
3. In the whole field of self employment, to show loss of earnings capacity, what you may not be able to do one way may be done in another. You must be flexible, imaginative, and generally figure that the insurance adjuster is giving you the worst possible scenario. Expert consultation can help, especially if statistical analysis is needed.
4. Quite often, partnership draws or salaries in closely held corporations are not indicative of the value of the lost time of the disabled person. Income may be returned to the business by way of capital expenditures, payment of debt and administrative salaries. The adjuster will tell you that “he is not making anything.” This is not the point. The salary of a self employed person or controlling stockholder of a closed corporation is also open to objection as not indicative of the plaintiff’s true economic value in that it can be unrealistically inflated for a given period. Where these situations exist, use other methods other than salary) to demonstrate the plaintiff’s economic worth, e.g., lost profits, increase in corporate value, cost of hiring a substitute and so forth.
5. In most cases, current unemployment will not defeat a loss of earning capacity claim and past earnings can be introduced to demonstrate earning capacity. The issue here is remoteness.
6. Persons with no record of earning money have been and should be allowed loss of earning capacity recovery. In this category are housewives, gratuitous employees, minors, infants, students and trainees.
7. Housewives are not necessarily limited to the value of their homemaker services in determining loss of earning capacity.
8. In any self employed, up and down business, the plaintiff must create the most advantageous statistical position to demonstrate the lost earning power. If current earnings are high, stress these to demonstrate a future growth pattern. If they are low for the period just prior to injury, create a broader statistical base by using income from a number of prior years.
9. In very complex cases and in cases where a statistical analysis is required, the use of an economist or accountant may be advisable, but do not rush out and hire one until you have exhausted your own resources, which in many cases will be sufficient.
10. Lost profits may be introduced as an aid to the jury in determining the value of the lost time if the predominant effort rule is satisfied.
11. Use the cost of substitute services when someone is actually hired to do plaintiff’s job if the self employed plaintiff’s work is administrative and does not involve business and personal contacts.
12. Use qualified testimony to prove the value of substitute services when plaintiff’s job involves unique skills and business contacts that are of a particular value to income production.
13. Do not drop a loss of earnings capacity claim because the person is making more money after the accident. There still may be a significant loss of earning capacity.
14. Be on the lookout for situations where a person intends to enter a higher paying job Often the higher salary of that job can be a guide to loss of earning capacity.
15. Retired and older person can still be awarded compensation for loss of future income.
16. There is often significant loss of earning capacity where professional persons are involved. Do not accept the adjuster’s position that physical injury does not affect the earning power of person whose jobs are mental in nature.
17. Be ready for arguments that any award for loss of earning capacity should be reduced by projected income taxes that would have been paid on it, or that the jury should be instructed that the award is nontaxable, or that collateral income should be introduced to demonstrate a motivation to malinger or continue disability.
18. Plaintiffs, especially self employed plaintiffs, will exaggerate their incomes and their lost time, or tell your about the lost fortune they could have made. A plaintiff’s lawyer sometimes will just go along with this and answer interrogatories accordingly that are later found to be exaggerated and not provable. This could damage the entire case. Be conservative in dealing with future income. Check out the facts early and do not think that elevated figures in answers to interrogatories will scare the opposition and force a settlement. Juries do not like plaintiffs they perceive are looking for a free ride.
19. In all loss of future income case, you must know your jurisdiction’s position on:
· reduction to present value
· deductibility of taxes
· application of collateral source rule as to continued income payments despite disability.
If you have a federal matter, e.g., FTCA, FELA, Jones Act, state law with respect to deducting taxes may be overridden in that it produces damages which are considered punitive and not allowed under federal law.
SAMPLE ORDER OF A JURY TRIAL
The below usually applies to both civil and criminal jury trials. It is to give you an overview of the process.
· Pretrial motions
· Plaintiff's opening statement
· Defendant's opening statement (The defendant normally has the option of presenting the opening statement here or at the beginning off the defendant's case.)
· Plaintiff's case begins
a) Plaintiff's testimony
b) Plaintiff's witness #1
c) Plaintiff's witness #2
d) Plaintiff's expert witness
· Plaintiff rests (This marks the end of the plaintiff's initial presentation of evidence. Certain proof must be made before resting if the case is to survive the upcoming motions.)
· Defendant' case begins
a) Defendant's testimony (Sometimes the plaintiff's lawyer will call the defendant to testify during the plaintiff's case. In that event, the defendant's lawyer may decide not to call the defendant again during the defendant's presentation. Defendants in criminal cases usually do not testify.)
b) Defendant's witness #1
c) Defendant's witness #2
d) Defendant's expert witness
· Defendant rests
· Plaintiff may have a right to call rebuttal witnesses
· Defendant may have a right to call witnesses to respond to the rebuttal.
· Plaintiff closes (This marks the end of all evidence to be presented by the party who closes.)
· Defendant closes
· Requests for jury instructions (This is done outside the presence of the jury.)
· Plaintiff's closing argument
· Defendant's closing argument
· Plaintiff's closing argument – final portion
· Judge reads the instructions to the jury
· Jury deliberations
· Jury verdict.
Sexual harassment has been a problem for many centuries. However since about 1993 it has become important in California law.
Sexual harassment is any unwanted attention, that you did not invite, that concerns your sex. It includes, but is not limited to, words said, leering, gestures, acting out, saying gross things, touching and a number of other things.
If you are sexually harassed at your place of employment do not quit your job. Stay on the job and write down the problems. Include the date, place of occurrence, witnesses present and what was said or done. Be on the lookout for others being sexually harassed and write their names down and the type of incident involved.
Complain to your boss both in writing and orally. Keep copies of any documents you use for complaints. Make a note in a diary about the time talking to your boss about the harassment.
Once you complain be on the lookout for retaliation. They may try to get you fired for being incompetent. Keep records of your past production or job performance. Again have witnesses if your boss or co-workers start to give you a hard time to try to get you fired. Do not quit your job. The law is on your side.
Under Government Code section 12950 employers have an obligation to ensure a workplace free of sexual harassment by implementing minimum requirements. An information sheet must be provided to employees stating, at the minimum: The illegality of sexual harassment, the definition of sexual harassment, a description of sexual harassment with examples, an internal complaint process of the employer available to employees, the legal remedies and complaint process and directions on who to contact.
Civil Code section 51.9 provides for remedies of sexual harassment in a business, service or professional relationship.
Evidence Code section 1106 provides for evidence concerning allegations of sexual misconduct.
The Education Code provides law on Sexual harassment and defines it in the educational setting (Education Code section 212.5).
THE TWO BELOW CHECKLISTS ARE FROM "SEXUAL HARASSMENT ON THE JOB" BY WILLIAM PETROCELLI AND BARBARA REPA. READ THE BOOK FOR FULL DETAILS.
CHECKLIST TO HELP EVALUATE YOUR CASE:
Here are some factors to look at when evaluating workplace behavior to see whether it is likely to be considered sufficiently outrageous to support a claim of intentional infliction of emotional distress.
· COERCION. Where the harasser has some power over you in the workplace, such as supervising your work or controlling your raises or promotions, your chances of success increase.
· FREQUENCY. A claim is more likely to succeed where the harassing behavior happens regularly, or recurs several times, as opposed to an isolated instance.
· DURATION. Again, a single instance of harassment may be enough, but if the bad behavior has continued over a long span of time, it may be more likely to be considered outrageous.
· PHYSICAL CONTACT. While there is no legal requirement that your harasser actually touch you, some courts seem more inclined to find intentional infliction of emotional distress if there has been unwanted touching as opposed to solely verbal hackling or threats.
· PHYSICAL SYMPTOMS. If the sexual harassment you endured also caused physical suffering, a court is more likely to find that the harassment was outrageous — and illegal. Symptoms range from nervousness, depression and sleeping disorders to headaches, rashes and severe stress related circulatory problems. Proof that you have been treated by a physician, psychiatrist or psychologist is not essential for a legal claim, but is very persuasive evidence with a court.
· RETALIATION. Evidence of retaliation bolsters your claim. Evidence of co-workers shunning you, or your harasser interfering with your ability to get your work done, can often mean the difference between success and failure for a claim of intentional infliction of emotional distress.
· UNION MEMBERS BEWARE. Your claim of infliction of emotional distress may be barred by a court if you are a union employee and your collective bargaining agreement states that the Railway Labor Act or the National Labor Relations Act controls workplace disputes. Other union employees, however, are not banned from filing this legal action.
DISPELLING SOME OF THE MYTHS:
Myth: Some women want to be sexually harassed.
Truth: Being subjected to sexual harassment is a painful and difficult experience. Defenses such as "she wore provocative clothes" and "she enjoyed it" are neither acceptable or accurate.
Myth: If a woman really wanted to discourage sexual harassment, she could.
Truth: Often, the harasser is in a position to punish the woman by withholding a promotion, or giving a bad evaluation. In this society, men often rationalize their behavior by claiming that a woman's "no" actually means a "yes."
Myth: Most charges of sexual harassment are false.
Truth: Women have little to gain from filing false charges. It is exceedingly difficult to file sexual harassment charges and confronting the harasser can be both physically and financially draining.
Myth: Sexual harassment is inevitable when men and women are working together.
Truth: While interaction between the sexes might be inevitable, uninvited sexual overtures are not.
Myth: If you ignore sexual harassment, it will go away.
Truth: Only 29% of the women recently surveyed who said they tried to ignore the behavior said that it "made things better." Over 61% said that telling the person to stop made things better.
INFORMATION ON STRUCTURED SETTLEMENTS IN PERSONAL INJURY CASES
This information is taken from a Summer of 1996 publication by Steven F. Chapman, 521 Montana Avenue, Suite 102, Santa Monica, CA 90403. His phone is 800-845-2969. He is a structured settlement consultation.
As background personal injury awards, settlements or judgments are tax exempt. However the interest earned once the money is received is subject to taxes. For example if you receive $100,000 for a personal injury award the money is not taxed. However once the money is in the bank or whatever investment (assuming is it not spent immediately) the interest, dividends or earning from the $100,000 is subject to taxes. (A recent United States Supreme Court has ruled that punitive damages received by the injured party are taxable) An extract of the article follows:
Many physical injury or illness tort claims are settling for cash, needlessly depriving the plaintiff of future tax exemptions often worth more over time than the original settlement cost. In agreeing to the entire settlement to be paid in cash, the plaintiffs irreversibly lose their right to participate in one of the most significant tax breaks still on the books, available only to personal injury and workers compensation claimants.
Some defense offered structured settlements are being refused by plaintiffs who mistakenly believe they can settle for cash and structure later. Other cases are not structured simply because the defense does not offer a structure and the plaintiffs do not know they can initiate their own. Plaintiffs can engage their own broker, provided arrangements are made before constructive receipt of funds.
Section 104(a)(2) of the Internal Revenue Code exempts from current year gross income “the amount of any damages received (whether by suit or agreement and as lump sums or as periodic payments) on account of personal injuries or sickness.” Workers Compensation amounts are exempted under IRC section 104(a)(1). Claims resolved through a mixture of payments made at the time of settlement and to be made in the future are called structured settlements.
It is the concept of “lump sums” versus “periodic payments” that seems to be the cause of the confusion. Wile a lump sum is received tax free, the first dollar earned on it after receipt, through any kind of investment, is a taxable event. Periodic payments from the defendant, it’s casualty insurer or an assigned entity that has agreed to assume the obligation to make future payments are income tax free no matter when the payments are received by the claimant or plaintiff.
Something to watch out for is the doctrine of Constructive receipt. Constructive receipt is the doctrine that taxes income before the income is actually received. It is contained in the Treasure Regulations section 1.451-2(a) as follows: “General Rule. Income although not actually reduced to a taxpayer’s possession is constructively received by him in the taxable year during which it is credited to his account, set apart for him or otherwise made available so that he may draw upon it at an time, or so that he could have drawn upon it during the taxable year if notice of intention to withdraw had been given. However, income is not constructively received if the taxpayer’s control of its receipt is subject to substantial limitations or restrictions.”
The doctrine of constructive receipt directly affects structured settlement. If the settlement is complete or the judgment is final, then a structured settlement cannot be used. The constructive receipt doctrine would cause the present value of the settlement to be treated as the nontaxable compensation for the personal injury. Any interest earned on the annuity or bond that funded the settlement would be taxed to the plaintiff.
A good general rule is that the plaintiff cannot be in constructive receipt of the defendant’s lump sum offer if the plaintiff has not agreed to provide a release.
· The defense has offered a lump sum to settle the claim, which the plaintiff is considering. The plaintiff does not have a constructive receipt problem, as mere negotiations do not trigger the constructive receipt doctrine. A structured settlement can be used to settle the claim.
· The plaintiff has agreed to the amount, conditioned on agreeing to a structured settlement using that amount. There is still not a constructive receipt problem.
· The plaintiff has rejected the amount that was offered, then countered with a higher amount, conditioned on agreeing to a structured settlement. The defendant has agreed to the higher amount. The parties are discussing the timing and amount of the periodic payments. There is no problem yet as long as the plaintiff has not agreed to release the claim. The negotiation can continue.
· The parties have agreed on the amount the defendant will spend; they have also agreed on the timing and amount of each periodic payment. The plaintiff has agreed to release the claim if a mutually acceptable settlement agreement can be drafted. The structured settlement can still be modified as conditioning the release on a mutually acceptable settlement agreement will prevent the constructive receipt doctrine from operating. Until the settlement is final, the parties can continue to negotiate.
POST VERDICT EXAMPLES
· Verdict has been reached. The plaintiff is not in constructive receipt of the verdict amounts. Verdict findings cannot be reduced to the plaintiff’s possession and the constructive receipt doctrine therefore does not operate. A structured settlement can still be used.
· There are more examples of post verdict structured settlements. It might be easier to contact the author above for more information.
One of the biggest myths circulating in settlement negotiations used to be: “If a plaintiff learns the amount the defendant spends on the structured settlement, the plaintiff will be in constructive receipt of that amount.” This is untrue.
Fortunately, the IRS has issued two Private Letter Rulings that fly in the face of this myth. In the first ruling [83-33-035, May 16, 1983], the IRS told the requester: “Disclosure by defendant of the existence, cost or present value of the annuity will not cause you to be in constructive receipt of the present value of the amount invested in the annuity.”
A Private Letter Ruling is directed only to the taxpayer who requested it, and IRC section 6110(j)(3) provides that it may not be used or cited as precedent. Yet, a private ruling is considered by most tax advisors to be a reliable gauge as to how the IRS would rule again in identical or similar circumstances. The IRS reaffirmed its earlier stand by issuing Private Letter Ruling 90-17-011, dated January 24, 1990, which states: “Knowledge of the existence, costs and present value of the annuity contract used to fund the settlement offer ... will not cause the family to be in constructive receipt of the amount payable under the annuity contract or the amounts invested in the annuity contract.”
Many defense teams still prefer to make settlement proposals in terms of benefits, not “present value” cost. In response, more structured settlement brokers are being engaged on behalf of plaintiffs than in the past. Often, a case may have settlement brokers on both the defense and the plaintiff side, with the commission being split.
The Increased presence of plaintiff brokers in settlement negotiations has given rise to a more current myth: “A settlement broker who is engaged by the plaintiff and assists the plaintiff in developing the structured plan causes the plaintiff to be in constructive receipt of any funds paid by the defendant toward deferred payments.” This is also false, but there is not known IRS ruling to dispel it.
A COMMON MISTAKE
Many potential structures are settled for cash because the plaintiff’s attorney or his client either becomes confused by the constructive receipt doctrine or frustrated that settlement offers do not divulge the cost of the proposed annuity or U.S. Treasury bond. But, if these cases are settled on incorrect assumptions, they may result in adverse tax consequences to the plaintiff.
Over the years, some plaintiff attorneys have been known to recommend a cash settlement to their client, suggesting that the client will be able to “structure” the settlement after receiving the money. Not so. Once the settlement funds are received or constructively received, an annuity or bond may not be purchased by the plaintiff, the plaintiff’s attorney or by any other agent of the plaintiff, with the tax free status of future growth preserved for the plaintiff.
Annuities purchased after constructive receipt will be a nonqualified annuity, and future earnings will be taxes. Additionally, withdrawals before annuitant reaches age 59 1/2 may be subject to a 10 percent penalty.
REMEMBER, TO BE INCOME TAX FREE, A STRUCTURED SETTLEMENT MUST BE ACCOMPLISHED BEFORE CONSTRUCTIVE RECEIPT. ONCE FUNDS ARE CONSTRUCTIVELY RECEIVED, A VERY SIGNIFICANT TAX BREAK IS LOST FOREVER. IT CANNOT BE RESTORED.
For more information call the author who is mentioned at the start of this letter.
COMPANIES THAT DO STRUCTURED SETTLEMENTS:
· Summit Settlement Services at 888-673-8853
1gross income for support table (gits)
Past gross income from tax returns and other sources:
)[6:947] Not a precise dollar yardstick:
Of course, in most cases, dissolution means neither party will be able to maintain the marital standard of living--i.e., because it costs more to maintain two households than one, each spouse typically will have to take a "step down" for some time. [See Marriage of McTiernan & Dubrow (2005) 133 Cal.App.4th 1090, 1107, 35 Cal.Rptr.3d 287, 300 (citing text)]
Section 4330 does not, by requiring courts to consider the marital standard of living, set dollar boundaries on the amount of support but, again, simply furnishes a point of reference to be used in weighing all of the parties' circumstances. [See Marriage of Smith, supra, 225 Cal.App.3d at 484, 274 Cal.Rptr. at 919 (citing text) (emphasis in original); Marriage of Drapeau (2001) 93 Cal.App.4th 1086, 1095, 114 Cal.Rptr.2d 6, 13]
(2)[6:948] "Marital standard of living" means pre-separation "general station in life":
The Code offers no guidelines for measuring the "marital standard of living," thus leaving the bench and bar to speculate on what the Legislature intended. Case law closes that loophole:
"We hold that the marital standard of living is intended by the Legislature to mean the general station in life enjoyed by the parties during their marriage. The Legislature did not intend it to be a precise mathematical calculation . . ." [Marriage of Smith (1990) 225 Cal.App.3d 469, 475, 274 Cal.Rptr. 911, 913 (emphasis added); see Marriage of Kerr (1999) 77 Cal.App.4th 87, 94, 91 Cal.Rptr.2d 374, 378; Marriage of Drapeau, supra, 93 Cal.App.4th at 1086, 114 Cal.Rptr.2d at 13]
(3)[6:949] Not "sole" measure of support:
The marital standard of living is only one circumstance to be considered in adjudicating spousal support. It was never intended, and has never been viewed, as the sole determinative factor. [Marriage of Smith, supra, 225 Cal.App.3d at 484-485, 274 Cal.Rptr. at 918-919; Marriage of Zywiciel (2000) 83 Cal.App.4th 1078, 1081, 100 Cal.Rptr.2d 242, 244; Marriage of Cheriton (2001) 92 Cal.App.4th 269, 307, 111 Cal.Rptr.2d 755, 784 (citing text)]
In practice, the marital standard provides a "threshold or starting point" from which courts are to begin consideration of all of the § 4320 factors. The statute does not eliminate judicial discretion to award spousal support in amounts greater or less than the marital standard of living based on all of the § 4320 factors. [Marriage of Smith, supra, 225 Cal.App.3d at 485, 274 Cal.Rptr. at 919 (citing letter by author of bill introducing marital standard of living guideline); see Marriage of Cheriton, supra, 92 Cal.App.4th at 308, 111 Cal.Rptr.2d at 785]