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Recent Posts in Personal Injury Category

December 01, 2010
  Medical Malpractice
Posted By Los Angeles Personal Injury Attorney

Medical malpractice is a major subset of personal injury law which specifically deals with the negligence of doctors and medical professionals in the scope of their professional duty.

Because of their years of study, training, and experience, doctors, while performing their professional duties, are held to a much higher standard than members of the general public. Like an ordinary claim for negligence, a claim of medical malpractice has 4 basic elements:

  1. Duty: everyone, all the time, has a legal duty to exercise reasonable care to avoid causing harm to others. Doctors have a similar duty when they are practicing medicine. A slight twist is put on the standard of care for doctors, which results in the standard being much higher: when practicing medicine, a doctor is expected to behave as a reasonable personwith the same level of education, training, experience, and skill.

  2. Breach: it must be shown that the doctor’s behavior actually fell below this standard of care.
  3. Causation: the doctor’s breach of his or her duty of care must have actually caused the harm that the patient alleges.
  4. Harm: The patient must have suffered some actual harm. 

The major point of contention that comes up in medical malpractice cases is usually whether or not a doctor actually breached his or her duty of care. Because modern medicine is so complex, it’s usually impossible for a jury of laypersons to determine if a doctor actually acted reasonably in a particular situation. For this reason, it’s almost impossible for a jury of laypersons to make an informed decision without an expert witness (usually another doctor who practices the same field of medicine as the defendant) to inform them on the relevant professional standards. Typically, the plaintiff and defendant will each hire expert witnesses to present the facts in a light most favorable to their side.

Typically, a court will instruct the jury to apply one of two possible tests when determining if a doctor’s conduct has fallen below the standard of care. These tests are:

-          The national standard: a doctor’s conduct will be compared against the degree of skill and knowledge held by the average doctor in the same field, across the entire country. This is typically applied to doctors who practice in large cities, or in fairly common specialties.

-          The local standard: The physician will be held to the standard of the average physician in the local area in which they practice. The “local area” might include a city, county, or state.

It’s important to remember that, just because the doctor did something that not every doctor would have done, they have not automatically liable for malpractice. When a medical problem comes up, there are usually at least a few plausible solutions. Typically, there will be some doctors who prefer solution #1, while other doctors might favor solution #2. Let’s say that they both have a very similar (and very good) success rate, but a majority of doctors prefer solution #1, for whatever reason. 

Suppose a doctor uses solution #2, and something beyond anybody’s control goes wrong, causing harm to the patient which would not have happened had the doctor used solution #1. This doctor would not be liable for medical malpractice. 

Just because the doctor used a method that’s preferred by a minority of similarly-competent doctors (we’re excluding total quacks, and assuming that both solutions have a sound medical basis), that doesn’t mean the doctor behaved unreasonably. 

To succeed in a medical malpractice claim, you have to show that the doctor did something that no competent doctor would have done. 

Statute of Limitations 

All personal injury claims are subject to statutes of limitations. Medical malpractice is no exception. In most personal injury cases, the statute of limitations begins to run (the clock starts ticking) the moment the injury occurs. However, in some medical malpractice cases, the harm caused by the medical malpractice is not discovered for weeks, months, or possibly years after the malpractice occurs. For this reason, many states have slightly modified the statute of limitations for medical malpractice cases. Some have simply made it longer than it is for other personal injury cases. 

Others, however, have adopted a more reasonable rule: the same statute of limitations applies to all personal injury cases, but the clock doesn’t start ticking until the injury is discovered, or reasonably should have been discovered. 

This makes it far less likely that a valid medical malpractice claim will be barred by a statute of limitations. 

Conclusion 

There are a lot of things to consider when deciding to file a medical malpractice lawsuit. You should consult with an experienced Los Angeles Personal Injury Attorney who can advise you on your chances of success, and how to proceed.

Continue reading "Medical Malpractice" »

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October 15, 2010
  Court Holds Private Social Media Postings Discoverable in Personal Injury Lawsuit
Posted By Los Angeles Personal Injury Attorney
It’s undeniable–social media use is increasing exponentially. And, with this rapid increase in the use of social media, more attorneys are quickly realizing the utility of social media postings in personal injury litigation. When witnesses or parties to a lawsuit publicly post about their activities and whereabouts, the information can be used to dispute claims of injury during the settlement phase of a case or as impeachment material at trial.

Because social media is a relatively new phenomenon, courts and ethics committees are just now beginning to address issues related to the use of social media postings in lawsuits. 

For example,just last month, a New York court issued a ruling regarding the discoverability of private social media postings in a personal injury trial.

The plaintiff in that case brought a lawsuit against the manufacturer and the distributor of a chair that she alleged was defective. As a result of the defect, she fell from the chair, resulting in numerous injuries. The plaintiff claimed that as a result of her injuries, including herniated discs and restricted motion in her neck and back, she was mostly confined to her home and bed.

The defendants sought access to the plaintiff’s private postings on Facebook and MySpace, two popular social networking sites. Her attorneys opposed the request, claiming that permitting access to the messages would violate her privacy and allow the defendants access to information that was completely irrelevant to the lawsuit.

The court disagreed with the plaintiff, concluding that defendants were entitled to access the private postings as part of the pre-tial discovery process:

Plaintiffs who place their physical condition in controversy, may not shield from disclosure material which is necessary to the defense of the action… Accordingly, in an action seeking damages for personal injuries, discovery is generally permitted with respect to materials that may be relevant both to the issue of damages and the extent of a plaintiff’s injury… (It is) reasonable to infer from the limited postings on Plaintiff’s public Facebook
and MySpace profile pages, that her private pages may contain materials and information that are relevant to her claims or that may lead to the disclosure of admissible evidence.

This is an important ruling, if only because it highlights the risks of interacting on social media sites when involved in a lawsuit. Plaintiffs should take note and may very well want to delete any social media accounts and to refrain from using social media while their lawsuit is pending.
Continue reading "Court Holds Private Social Media Postings Discoverable in Personal Injury Lawsuit" »

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June 01, 2010
  Finding a Los Angeles Personal Injury Attorney
Posted By Los Angeles Personal Injury Attorney
If you or someone you love has suffered a personal injury, you probably feel a bit overwhelmed trying to find a Los Angeles personal injury attorney. There are hundreds of advertisements in the yellow pages, on television, billboards and the radio. How do you find one that's right for your situation?

Los Angeles personal injury attorneys can be found to represent you for almost any type of personal injury case, whether it is physical, emotional or work-related. Here are a few tips to keep in mind:

1. Get professional referrals. If you have retained an attorney in the past for other issues, ask for his or her recommendation. In Los Angeles, personal injury attorneys work frequently with other specialized attorneys, so your present lawyer should be able to recommend someone they feel is trustworthy. Also contact the local Bar Association, which can give you a list of Los Angeles personal injury attorneys.

2. Talk to friends. You will be surprised at how many people you know who have used the services of an injury attorney at some point in their lives, or know someone who has. Not all cases go to court, or even require settlement negotiations. A good attorney may only need to write a letter to the defendant or his insurance company to receive a settlement payment for his client, so ask everyone you know. If they were happy with their outcome, they'll tell you!

3. Don't hire someone outside of the area. Some law firms that are state-wide with offices outside of Los Angeles County can practice in Los Angeles, but aren't all that familiar with the courts here. Find someone who practices primarily in LA County and in Los Angeles in particular. It makes a difference having a LA lawyer; he or she knows the courts, other attorneys and judges from working with them regularly.

4. Ask for an initial consultation. You should talk to a few different Los Angeles injury attorneys so that you can compare them to each other. It's important that you feel comfortable with the attorney as well as feeling confident that they will be doing their best for you. After all, you'll be working closely with them for weeks, if not months.

Good luck in your hunt for the right attorney. If you have any questions about a potential case or questions you may have about finding the right attorney, do not hesitate to contact Los Angeles personal injury attorneys at the Law Office of Christopher Paul Mesaros.
Continue reading "Finding a Los Angeles Personal Injury Attorney" »

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May 08, 2010
  California Dog Bite Law
Posted By Los Angeles Personal Injury Attorney

Dog bite cases are quite interesting, and the personal injuries suffered by victims are sometimes quite severe.  If you have been injured by a dog (or your dog has bitten someone), the following is a general outline California dog bite law. 

Question: I got bit by a dog. Can I sue the owner? (Or: My dog bit someone. Am I legally liable?) Answer: Quite possibly - though there are exceptions to the rule.

CA Dog Bite Law "Strict Liability"

California has a dog-bite statute listed under its Civil Code section 3342 which states in part: "(a) The owner of any dog is liable for the damages suffered by any person who is bitten by the dog while in a public place or lawfully in a private place, including the property of the owner of the dog, regardless of the former viciousness of the dog or the owner's knowledge of such viciousness." This means that under California law, even if a dog is good natured throughout its life but then one day out of the blue decides to bite somebody in a single instance or consume a small child, the owner could still be liable. Other states without such "strict liability" statutes will oftentimes have laws that will hold owners responsible for bites only if their dog was previously known to have bitten before or have an otherwise hostile disposition. These are often referred to as "one-bite" states, because after a dog bites once, the dog will often thenceforth be deemed to be knowingly hostile.

CA Dog Bite Law "Negligence"

Dog owners can also be held liable for their dog biting people under a general theory of negligence, even if a state has no specific dog bite statutes of any kind. Under negligence, a dog owner must take reasonably prudent steps to prevent reasonably foreseeable attacks by their pet in order to avoid liability. (This differs from "strict liability" statues which can hold the owner liable even if they prove that they took reasonable precautions to prevent their dog from biting someone.) Just what these prudent steps should be will always be different with each circumstance. The preventive safety measures with a large aggressive Pit Bull will likely be different than those concerning a small mild-mannered Chihuahua . Oftentimes, safety measures will concern the question of the dog being properly leashed. Is the dog confined to an area where children won't be able to accidentally wander into? Has the owner done everything reasonable to see that the dog is under control around others?

There are general exceptions to the rule of dog owner liability, even in states with strict liability dog-bite statutes.

Exception Number One

1. The police, military or government agencies that use dogs in the course of their work or investigations that end up biting people. Translation: If you rape and pillage a community while smuggling a ton of heroin and then get bit by the German Sheppard the cops use to chase you down, don't think that you can get rich by suing the police. (Though admittedly this immunity often only applies towards bites against criminal or hostile suspects. Innocent bystanders may still have a valid claim, depending on the law of a given state.) 

Exception Number Two

2. Trespassers. If someone wanders on to your property without your permission, many states will not hold you liable if your dog ends up biting them. In fact, many people keep dogs specifically in the hopes that they will keep out trespassers. California 's dog-bite statute specifically allows for this exception. Please note however that whether or not someone is a "trespasser" is itself a separate legal question. For instance, the law allows for postal employees to travel on to your property without your permission in order to deliver your mail. The "trespass" exception would not protect you from liability if your dog bites the mailman in this instance.

Exception Number Three

3. Assumption of the risk. If someone knows that a certain action could likely result in a dog biting them and proceeds to take that action anyway, that person is said to have "assumed the risk" and will not be able to hold the owner liable. (Example: If a dog owner tells you, "Don't go into my back yard and play with my dog. He is in a bad mood today and has been trying to bite anything that moves!" Then afterwards, you completely ignore the warning by going into the owner's back yard and playing with the dog. You will unlikely be able to hold the owner liable if you get bit since you assumed the risk in this instance. Sometimes, the assumption of the risk is implied. For instance, courts have found that strict liability statues do not apply to dogs that bite veterinarians during the course of treating the pet. Such risks are apparently in the nature of the business for them.

Exception Number Four

4. Negligence. Some states may shield the owner from liability when a person negligently contributes to the dog bite. In practical terms, this defense operates similarly to "assumption of the risk". The only difference is that one doesn't ask "What did the bite victim know before approaching the dog?" Instead, one asks, "What should the victim have known, assuming that he or she is a reasonable person?" A straightforward example would be someone approaching a dog after ignoring a clearly posted "Beware of Dog" sign. Courts may find that there was either an assumption of the risk or contributory negligence in this instance.

Exception Number Five

5. Provocation. In instances where someone mistreats or provokes a dog into biting him, courts will usually not hold the owner liable. For instance, unjustifiably beating a dog will often provoke it to bite back in retaliation. Just what constitutes legal "provocation" is often a question of fact for the courts to decide in each instance. Generally, mere attempts to pet, feed or otherwise peacefully interact a dog will not be considered sufficient provocation. There usually must be some action that courts would recognize as mistreatment.

If you have a question about a dog bite or a possible dog bite case, do not hesitate to call our Los Angeles personal injury attorneys.  They are available to answer your questions. 

Continue reading "California Dog Bite Law " »

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May 01, 2010
  Why Retain an Attorney?
Posted By Los Angeles Personal Injury Attorney

Question:  What are you entitled to recover in your injury lawsuit if you have been injured as a result of an auto accident?  One simple answer is your medical bills.  But, when dealing with insurance companies and the law, it is of course never that simple. 

For many years California injury attorneys agreed that a party who was injured in California was only entitled to recover the amount that was actually paid out or owed to a health care provider. So, if you had private insurance, your personal injury verdict or settlement would usually be negatively impacted.  For example, if your medical bills were $5,000 but your insurance company only paid $2,000 to the health care provider, you were only entitled to claim $2,000 - not $5,000.  This rule was referred to as the Hanif rule, based on the California case that adopted the above reasoning as law.

California Health Care Providers and insurance companies usually negotiate rates for medical services provided on a contracted basis. The parties enter into an agreement to pay a certain pre-determined amount for a medical service. Many health care providers have been happy to accept a lesser rate in order to enjoy a steady stream of clients.

The California Courts had previously determined that, “a plaintiff is entitled to recover up to, and no more than, the actual amount expended or incurred for past medical services so long as that amount is reasonable.” Hanif v. Housing Authority (1988) 200 Cal. App. 3rd 635, 643. The rule was that when a Plaintiff had medical insurance then medical damages were limited to the actual amount paid or incurred. 

Hanif in Practice 

Take for example a broken arm suffered in an auto accident. Now assume that two people suffered the same injury – one person with private insurance and one person without. Each was billed $5,000.  It would seem that if they had suffered the same injury, there would be identical bills. However, that is not the case. The person who had private insurance would have a lower bill ($2,000) due to the agreement between the health care provider and the insurance company. The health care would take what was called a write off on their bill and would only collect the amount agreed upon.

The above situation leads to two different awards for the same exact injury. The person who did not have any insurance would have received more compensation for their medical bills, merely due to the fact that there is no contractual write off on his or her bill.  

Collateral Source Rule

The collateral source rule has been defined as, “if an injured party receives some compensation for his injuries from a source wholly independent of the tortfeasor, [such as health insurance], such payment should not be deducted from the damages which the plaintiff would otherwise collect from the tortfeasor.” Helfend v. Southern California Rapid Transit Dist. (1970) 2 Cal. 3d 1, 6. The basis for the rule is that any individual who has invested money into insurance for medical care should receive the benefits of his or her own prudence.  

The importance of knowing the above rule is that the Court has finally taken note the holding in Hanif may be violative of the collateral source doctrine.  

Where the Law Stands Today

The Court recently stated the following, “We disagree with Greer to the extent it holds that a trial court in a personal injury action is authorized to hear and grant a defendant's posttrial motion to reduce under Hanif and Nishihama a privately insured plaintiff's recovery of economic damages for past medical expenses. As discussed, ante, we have concluded that the negotiated rate differential is a collateral source benefit within the meaning of the collateral source rule.” Howell v. Hamilton Meats & Provisions, Inc. (2009) 179 Cal.App.4th 686.

In March, 2010, the California Supreme Court granted review of the Howell case, which means that it will try and reconcile the Hanif and Howell cases, hopefully making the law clearer. 
Defendants and insurance companies are doing their absolute best to hold on to the old rule arguing that Howell is not controlling in certain judicial districts.

Retaining a Personal Injury Attorney

The importance of having a personal injury attorney can be illustrated by the above law. Many lay people would not understand what a reasonable value of medical services actually is or even how to argue for it. A person attempting to represent himself would more than likely take the insurance adjuster’s word at face value. If you have been injured in an accident, it is important that you consult and eventually retain an attorney. Without doing so, you run the risk of not receiving the full value of your case, and could be left owing more on your bills than actually recovered.

Continue reading "Why Retain an Attorney?" »

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April 26, 2010
  Welcome to our new Blog!
Posted By Christopher Paul Mesaros
I am proud to announce our new blog, as well as tell you a little about myself.  I am the principal at the Los Angeles personal injury law firm "The Law Office of Christopher Paul Mesaros, APC," (mesaroslawfirm.com), and I have been named a 2010 Southern California Rising Star by Los Angeles Magazine. The Los Angeles Magazine will reveal in its July 2010 issue that I have now received this award three years running - 2008, 2009 & 2010. 

Only 2.5% of attorneys are awarded this honor each year.  As this is an award that is based upon peer recognition, I am quite proud of this achievement.  

In 1996, I graduated cum laude from Regis University in Denver, Colorado with a B.A. in History and Political Science. In 2000, I received my JD degree from the University of Pittsburgh School of Law. I was admitted to the California State Bar in July 2001.

Today, I am a Los Angeles personal injury attorney, handling the business affairs, marketing, and client care programs for The Law Office of Christopher Paul Mesaros, APC. I act as the firm's chief negotiator, manage the day-to-day client contact and I am responsible for the running of the business of the law firm.

I have a long-standing reputation for providing compassionate, clear advice and getting outstanding results for victims of , car accidents, defective products, and general negligence. Having resolved hundreds of cases for injured accident victims and their families, I am a passionate advocate of consumer rights and have been praised for  my tenacity in standing up to large corporations, auto makers and governmental entities on behalf of my clients. 

About The Law Office of Christopher Paul Mesaros, APC

The law firm's Los Angeles personal attorneys represent people who have been very seriously injured or lost a family member due to an accident, defective product or negligence throughout California. Christopher Paul Mesaros has resolved a wide variety of challenging personal injury and defective product cases, involving car accidents, work related injuries, dog attacks and defective products. Please visit their website at mesaroslawfirm.com.
Continue reading "Welcome to our new Blog!" »

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April 22, 2010
  Welcome to our Los Angeles Personal Injury Blog
Posted By Personal Injury Attorney
Our attorneys are pleased to announce the launch of our new los angeles personal injury law blog with an RSS feed available.
Continue reading "Welcome to our Los Angeles Personal Injury Blog" »

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