Personal injury trial lawyer

Last week we wrote about the tragedy occurring at some nursing homes, most notably the deaths at a New Jersey nursing home. According to the California Department of Public Health, 200 skilled nursing facilities across California have reported one or more cases among staff and residents. The Department has published the name of each of these nursing homes.

More than 1,740 nursing home residents and 1,290 employees in California have tested positive for the virus.

The federal government has now acted and requires nursing homes to inform residents, their families and representatives when a resident or staff member contracts the virus.

Notification must come within 12 hours of a confirmed single case of COVID-19.

Also, residents, families and representatives must also be told when three or more people at a facility develop respiratory symptoms within a 72-hour period.

The new rules also require nursing homes to report COVID cases directly to the CDC (Centers for Disease Control and Prevention)

The rules also require nursing homes to detail the measures the facility is taking to minimize the spread of the disease.

Some states are taking additional measures. As an example, the Florida Governor has ordered the National Guard to test for the virus in nursing homes and assisted living facilities.

We urge all loved ones to keep an eye on their elderly residents to keep them safe and healthy.

INTRODUCTION

A resident at a nursing home should never suffer neglect during this pandemic. This article addresses the responsibilities of a facility, and remedies that are available when neglect occurs.

RESPONSIBILITIES

Every adult, age 65 and older, is protected under the Elder Abuse and Dependent Adult Civil Protection Act, which includes many laws that protect elders. Facilities that violate these laws are liable for the harm that is done.

Neglect is defined as the negligent failure of any person having the care of an elderly person to exercise that degree of care that a reasonable person in a like position would exercise. For example, a caregiver must use that amount of care that a careful caregiver would use under the circumstances.

WHAT IS NEGLECT OR ABUSE?

Neglect includes two essential things, including 1) the failure to provide medical care for physical and mental health needs, and 2) the failure to protect from health and safety hazards.

Abuse includes such things as physical abuse or withholding goods or services that are necessary to avoid physical harm or mental suffering.

EXAMPLES OF NEGLECT

There are many different types of neglect, including:

(1) Failure to assist in personal hygiene.
(2) Failure to provide medical care.
(3) Failure to protect from health hazards.
(4) Failure to prevent malnutrition or dehydration.

WHAT TO DO IF YOU SUSPECT NEGLECT

1. If you suspect abuse, you should document the neglect, doing such things as:
(1) Taking notes of behavior changes.
(2) Taking photographs of injuries or medical conditions.
(3) Getting statements from witnesses to the condition.

For example, take photographs of any bed sores you observe. Interview the caregivers about the sore. Take notes on how the sore hurt your loved one.

2. Contact the facility ombudsman (an official appointed to investigate complaints) to report instances of abuse or neglect. The contact information should be provided by the facility.

DRINKING AND DRIVING
As we embark on the holidays, we must be mindful of impaired drivers on the road, especially late at night. As a consumer advocate, my firm represents injured victims who have suffered serious injuries caused by impaired drivers, especially drivers of commercial vehicles, such as big rigs.
It is also incumbent on ride share companies to protect it’s passengers, including making sure passengers are buckled. In our experience, ride share drivers make little, if any, effort to make sure passengers are seat belted. The failure to protect passengers can subject a ride share driver to liability.
California has specific drunk driving laws that address driving under the influence. Generally, it is unlawful for any person who is under the influence of any alcohol or drug, or both, to drive a motor vehicle. The legal standard is whether a person is able to operate a motor vehicle with the caution of a sober person of ordinary prudence under the circumstances.
A Blood Alcohol Concentration (“BAC”) of 0.08% or more establishes driving under the influence with no other evidence needed to prove impairment. With a .08 level, the driver is considered impaired as a matter of law even if there is no observable impairment to mental or physical abilities.
The law further recognizes that a driver can be impaired and arrested even if the BAC is under .08%. However, with a measurement less than .08, there must be other evidence of impairment to prove probable cause.
It is illegal for drivers licensed to operate commercial vehicles (trucks) to drive with a BAC of .04%. A truck driver with that level is proven to be impaired as a matter of law.
There is no “rule of thumb” regarding how much is too much. Alcohol affects each person differently. A person can be impaired even with a BAC level less than .08%.
There are a number of factors that determine when a BAC will reach or exceed 0.08, including how much a person weighs and the number of drinks consumed over a period of time. Many motorists are unaware that an alcohol level can continue to rise even after drinking has stopped.
Drinking enough to cause a BAC of .03–0.12% typically causes a flushed, red appearance in the face, and impairment of judgment and fine muscle coordination.
A police officer must have probable cause to make an arrest for driving under the influence. Probable cause usually starts with observing an erratic driving pattern. After being pulled over, the officer will ask many questions, all designed to establish probable cause. (Note, a person has the right to remain silent and not answer those questions.)
Probable cause can also be established by use of a handheld breath test, called a Preliminary Alcohol Screening Test, which estimates BAC. While the tester provides numerical blood alcohol content (BAC) readings, its primary use is for screening and establishing probable cause for arrest. (Note, submitting to a preliminary breath screening is optional.)
The use of a breath tester does not preclude the simultaneous use of “field sobriety tests” to help establish probable cause. The National Highway Traffic Safety Administration (“NHTSA”) developed a system for validating field sobriety tests that led to the creation of the Standardized Field Sobriety Test (“SFST”) battery of tests. The National Highway Traffic Safety Administration (“NHTSA”) established a standard battery of three roadside tests that are recommended to be administered in a standardized manner in making an arrest decision.
The three validated tests by NHTSA are:
• The Horizontal Gaze Nystagmus Test, which involves following an object with the eyes (such as a pen or other stimulus) to determine characteristic eye movement reaction to the stimulus
• The Walk-and-Turn Test (heel-to-toe in a straight line). This test is designed to measure a person's ability to follow directions and remember a series of steps while dividing attention between physical and mental tasks.
• The One-Leg-Stand Test
(Note, again, submission to these field tests is optional.)

After an arrest, a person is required to submit to a chemical test of blood or breath to determine alcohol content. If the test is refused, the person can lose his or her license for one year on a first offense or longer, if it’s a multiple offense.
For drivers suspected of drug-impaired driving, probable cause can be established with the field sobriety tests.
Drug testing screens are typically performed in scientific laboratories so that the results will be admissible in evidence at trial. Due to the overwhelming number of impairing substances that are not alcohol, drugs are classified into different categories for detection purposes.
According to the National Highway Traffic Safety Administration, alcohol-related crashes cause approximately $37 billion in damages annually. DUI and alcohol-related crashes produce an estimated $45 billion in damages every year. These damages do not include the pain and suffering caused to the victim of a drunk driver and the driver’s family.
If you or a loved one have been the victim of a drunk driver, we are there to help.

Cunningham & Sherman, LLP is pleased to announce a multi-million dollar settlement from a car accident that resulted in life-altering injuries. The case was complex and involved a variety of difficult issues to resolve. As former insurance defense lawyers, we knew the defenses the Defendant and its carrier would raise on liability and damages. We worked extremely hard to structure the case to minimize and eliminate those defenses. By removing and reducing those defenses, we created the risk needed to get the insurance company to act.

We are grateful our client gave us the opportunity to achieve this life-changing outcome.

If you have been in a car accident, you have only two years from the date of the accident to make a claim for your injuries. Call now for a free consultation about your case.

WHAT IS MY CASE WORTH?
I am often asked, what is the value of my case? I am in a unique position to answer that question because I am a trial lawyer and few personal injury attorneys are, and also because as a former insurance attorney I have been behind the curtain and know how insurance people evaluate cases. I have learned that there are many important factors that go into the value of a case.
1. JUDGES
The assigned trial judge is also an important consideration because he or she will be making important decisions about the admissibility of evidence that affects what a jury sees and hears about your case.
2. INJURIES
Of course, the nature and extent of your injuries and damages is a very important consideration. Also important are the medical providers you choose to care for you.
3. EVIDENCE
The credibility of witnesses, including you, lay witnesses, treating doctors and expert witnesses, is an important factor.
4. LAWYERS
The ability of the defense lawyer is also an important consideration because many defense lawyers know their way around a courtroom and know how to effectively minimize the damages in a case.
5. LOCATION OF TRIAL
As examples, the location where the case is filed and being tried is important because prospective jurors in some locations are more conservative or liberal than in others.
6. WHAT YOU SHOULD DO
If you are injured in an accident, and want an opinion about your case, call us for a free telephone or in-person consultation.