OVER 400 Legal Answers to Frequently Asked Questions to a Variety of California Injury Issues and Legal Problems Associated with California Accidents

What is my case worth? What should I do after a bicycle accident? My car's brakes didn't function properly, do I have a case? Should I sign the insurance company's proposal? Some of your questions may have been answered already on Mark Blane's website. However, San Diego county accidents happen all the time, and all sorts of different questions about different injury scenarios can be raised by a person who is injured. As a result, this personal injury website is dedicated to answering your frequently asked questions about a variety of injuries, your legal rights, and what procedures you should follow. Just browse our frequently asked questions (FAQ) section (below) and look them up. If you have other or more specific questions, just send an email (Contact Us) and you will receive a reply without delay!

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  • San Diego CA Jaywalking Question | What is "Jaywalking" and What do I Need to Know If I am Injured Jaywalking?

    "Jaywalking" refers to a person, or more aptly a pedestrian, who knowingly or unknowingly violates traffic regulations when it comes to crossing a public street or roadway. Under California state law, a pedestrian generally has the legal right to cross a street anywhere along said street without jaywalking minus certain exceptions:

    1. If the pedestrian is between two adjacent intersections that are BOTH controlled by any traffic control signal device [this means a traffic light or the like], then the pedestrian MUST cross at the intersection without being a "jaywalker."

    2. Local government jurisdictions may enact harsher laws to prevent jaywalking - this is especially seen in high traffic business districts, etc.

    3. Pedestrians generally must yield right-of-way to motorist [motor vehicles, etc.] which are near enough to constitue what is called an "immediate hazard," UNLESS the pedestrian is actually crossing at a marked or unmarked crosswalk. Remember a crosswalk does not have to be marked, and there can be "unmarked" cross walks!

    4. As a general rule pedestrians must obey the instructions on any official traffic signal device UNLESS it is necessary to avoid a collision or other emergency.

    There you have it - what jaywalking is and what you should know about it under California law. If you need anything else regarding any injury associated with a San Diego county jaywalking accident, please feel free to give me a call at (619) 813-7955.

  • SAN DIEGO RAW FOODS: What portion of my diet needs to be raw vegan as compared to cooked meats?

    The biggest question question I get once a person becomes aware of our path to eat vegan and how it benefits the body is "what portion of my diet needs to be raw vegan as compared to cooked meats?" 

    My answer has come down to the following: increase the use of raw fruits and leafy green vegetables (included aromatic herbs like parsley, cilantro, etc.) as much as possible in your life which includes juicing, and blending. If you can get to 50/50 split (50% of your diet including raw fruits and vegetables) then I would say you are moving in a great direction. If you can get it to 80% (raw vegan) or higher, then you are doing fantastic, and you are probably moving into the 1% of the population that can do this who are eating the "standard American diet."

    The fact still remains that all meat, which includes red meat, fish, poultry and pork contains cholesterol and no fiber. Usually, we (the typical consumer) eat the meat of muscles of the animals, and the cholesterol is in the tissues. Moreover, we don't know where most meat comes from in the grocery store today, and it is usually processed by a small group of corporations like Tyson, or the like. No time in history has our meat production been regulated by a small group of corporate interests. Also, in no time in our recent history have the animals been fed like an "army-factory," and not like a traditional farm we all think about. In these factories the animals are fed with unnatural grains, antibiotics, and other growth hormones that get trapped in the animal flesh. We all need to be more aware of these changes within the meat industry and how it affects our bodies.  Grandma was right, we are "what we eat."

    The video above has Ms. Charlotte Gerson, daughter of famed German scientist, Dr. Max Gerson (the Gerson Institute), giving her opinion on the matter. I encourage you to research this question on your own and increase the use of fresh raw fruits and vegetables in your diet if you have not already done so. Experience is also a great teacher and it may make a believer out of you in good time when it comes to meat ingestion. If you have any questions, feel free to pick up the telephone and call me directly at (619) 813-7955.

  • SAN DIEGO PIT BULL BITE INJURY: What are some legal options for victims of a California Pit Bull Dog Attack?

    Well, depending on the severity of the attack and injuries the victim is left with, There are several options for victims of Pit Bull attacks.  Apart and separate from treating the pit bull dog bite injury and preventing further harm, victims need to consult an experienced dog bite attorney to decide the best way to take legal action against those responsible.  California Pit Bull Dog bite laws can be very complicated, so it best to consult an attorney who understands the intricacies of your particular situation.

    Having said the above, a good California Pit Bull lawyer will look at all possible parties that have or share responsibility of ownership of the attacking Pit Bull dog. Usually, the Pit Bull owner’s home insurance company will pay for the claim but there are other avenues of recovery including going after the Pit Bull dog owner personally if need be; or finding other insurance like business insurance, or possibly renter’s insurance. Again, you will need a good California dog bite lawyer to navigate your claim.
     

    Mark C. Blane is a San Dog Bite Injury Attorney and the managing lawyer of the Law Offices of Mark C. Blane, a San Diego, California Personal Injury Law Firm dedicated to representing families of people injured by a California dog bite. If you or a loved one has been killed or injured in a dog bite injury or attack accident in California, please order your free copy of Mr. Blane's book, The ULTIMATE California Dog Bite & Animal Attack Legal Survival Book. It is full of helpful information that will help you protect your legal rights and it normally sells for $16.95.  However, it is free to all California residents, or those injured in a California dog bite injury accident.

     

     

     

  • What happens if I'm injured in a San Diego traffic accident caused by an uninsured driver?

    If you're San Diego traffic accident that is caused by an uninsured driver, you may find the assistance of an injury firm in San Diego, California useful when you're pursuing an accident claim. In most cases in which your injuries are caused by a negligent driver who's not insured, your uninsured/underinsured motorist coverage policy should cover your claim.

    This additional policy option is common in California, where insurance providers are required by law to offer UM/UIM insurance unless it's declined in writing by policyholders. When you're in an accident with an uninsured or underinsured driver your UM/UIM policy will cover the damages up to the limits of your policy. 

    It's important to note that in these cases, your insurance provider is paying for the damages, not someone else's. This changes the dynamic between insurance company and policyholder. It's an unfortunate reality of the industry that providers will downplay the gravity of your injuries and damage in order to minimize the amount of funds they are required to pay out.

    An injury firm in San Diego, California can defend you against your own insurance company when they drag their feet on responding to your claim or if they're unwilling to make a reasonable settlement offer that provides for all of your injury's expenses.

    By law, California drivers must have liability coverage for their automobiles, but it's estimated that about 1 in every 3 drivers have no car insurance and that many more have inadequate insurance. Check your policy to see what the limits of your UM/UIM coverage is and contact an attorney if you are injured by an uninsured or underinsured driver.

    Take Control of Your San Diego Traffic Accident by Contacting an Injury Firm in San Diego, California

    Accident attorney Mark C. Blane and his legal team aren't like some of the other San Diego injury attorneys you may have met with or seen ads for around town. Our goal is to educate our clients - even those whose San Diego traffic accident claims we don't take - so that you not only understand the legal process ahead of you but the basics of San Diego injury law and your legal rights.

    You can get started by ordering one of our FREE injury guides including Wolf in Sheep's Clothing: What Your Insurance Company Doesn't Want You to Know and Won't Tell You Until It's Too Late! or The 10 Secrets You Need to Know About Your Injury Case Before You Call a Lawyer. Contact us today to schedule your appointment - 888-845-6269 or 619-813-7955. We are proud to serve San Diego's Spanish speaking population and even offer our FREE California personal injury book en Español.

  • What happens if I was partially at fault for a motorcycle accident in San Diego, California?

    If you were partially at fault for a motorcycle accident in San Diego, California you may still be eligible to recover funds through pursuing a claim. A San Diego injury firm will explain to you California's system of "comparative fault" in its negligence and personal injury laws.

    California laws allow what's called an "apportionment of liability." If you are determined by a judge or jury to be 20% responsible for your accident, then you will be entitled to 20% less than the value of the damages you incurred as a result of the accident. So if you filed a $10,000 claim and it was demonstrated that you were 20% at fault, then you will be owed $10,000 minus 20% ($2,000) of the claim. So you will be owed $8,000 by the other parties for your injuries and damages.

    Under the California system, you can receive damages provided another party is at least 1% responsible for a motorcycle accident in San Diego, California; however, if you are 100% responsible for your accident, then you have no claim and are not eligible for recovering any funds.

    For this reason, in the majority of cases where a motorcyclist is partially responsible for a motorcycle accident, you should still retain legal counsel and pursue a claim against the other involved drivers. Even if you are 50% or more responsible for your claim, you are still entitled to the balance of damages for the proportion of the accident that is someone else's fault.

    Take Control of Your Motorcycle Accident in San Diego, California by Contacting a San Diego Injury Firm

    Personal injury attorney of San Diego, Mark C. Blane and his San Diego injury firm aren't like some of the other San Diego injury attorneys you may have met with or seen ads for around town. Our goal is to educate our clients - even those whose cases we don't take - so that you not only understand the legal process ahead of you but the basics of San Diego injury law and your legal rights.

    You can get started by ordering one of our FREE injury guides including Wolf in Sheep's Clothing: What Your Insurance Company Doesn't Want You to Know and Won't Tell You Until It's Too Late! or The 10 Secrets You Need to Know About Your Injury Case Before You Call a Lawyer. Contact us today to schedule your appointment - 888-845-6269 or 619-813-7955. We are proud to serve San Diego's Spanish speaking population and even offer our FREE California personal injury book en Español.

  • Is there a minimum amount for my medical bills in order for them to be covered by my insurance company after a car crash in San Diego?

    There isn't a minimum amount of medical expenses billed for insurance providers to be obliged to pay after a car crash in San Diego. If you're experiencing resistance from your insurance company after a car crash in San Diego, contact a San Diego trial lawyer who can explain your rights to you.

    A San Diego trial lawyer can help you determine what damages you may be entitled to as a result of the injuries you sustained in the accident. Your insurance company must provide fair and just compensation provided it can be proven that your injuries were the result of another party's negligence on the road.

    However, your insurance provider may only cover your medical expenses up to the limits of your automobile insurance policy, the minimum limit of which is: 

    • $15,000 for death or injury of one person;
    • $30,000 for all persons in any one accident; and
    • $5,000 for property damage in any one accident.  

    However, your insurance provider will not necessarily pay out to the limits of your policy. It is an unfortunate reality of auto insurance claims that many providers attempt to purposefully undervalue the damages you have sustained. 

    Insurance providers will generally prefer to pay one lump sum after an accident rather than obliging themselves to pay your medical expenses as they come due. It is advisable to purchase an additional coverage option that your carrier may provide called "medical payments coverage."

    This coverage will pay your medical expenses as they are incurred up to the limits of your policy and can even be used for deductibles and co-payments that your health insurance policy may apply.

    Take Control of Your California Injury Claim by Contacting a San Diego Trial Lawyer

    San Diego accident lawyer Mark C. Blane and his legal team aren't like some of the other San Diego injury attorneys you may have met with or seen ads for around town. Our goal is to educate our clients - even those whose cases we don't take - so that you not only understand the legal process ahead of you but the basics of San Diego injury law and your legal rights after a car crash in San Diego.

    You can get started by ordering one of our FREE injury guides including Wolf in Sheep's Clothing: What Your Insurance Company Doesn't Want You to Know and Won't Tell You Until It's Too Late! or The 10 Secrets You Need to Know About Your Injury Case Before You Call a Lawyer. Contact us today to schedule your appointment - 888-845-6269 or 619-813-7955. We are proud to serve San Diego's Spanish speaking population and even offer our FREE California personal injury book en Español.

  • When is hiring a San Diego, California personal injury attorney necessary?

    A serious car crash in San Diego can result in high medical bills, wage loss from inability to work, and emotional damages. These are all expenses and frustrations you shouldn't have to deal with alone, and a San Diego, California personal injury attorney can help.

    There are a few basic elements necessary to have a valid personal injury claim after a car crash in San Diego such as: 

    • serious injuries;
    • a negligent party;
    • substantial damages (financial and emotional); and
    • verifiable evidence. 

    If your car crash was completely your fault, or if you sustained minor injuries, chances are you won't need a San Diego, California personal injury attorney because you don't have much of a claim; however, if you're ever in doubt of your ability to recover compensation in a personal injury claim, you should always consult with an attorney.

    Car crashes between multiple drivers, involving government or commercial vehicles, or that are suspected to have been caused by a manufacturer defect can often be much more complex than a typical case. Considering these types of personal injury claims are against multiple parties or large corporations, they almost always require the help of an attorney to resolve because they're often against multiple parties or large corporations.

    There's no harm in bringing your story to an experienced personal injury attorney, as most of them offer a free consultation. During this consultation, your attorney will review the details of your accident and explain whether or not you have a case. If you do, you can make the decision to fight for compensation on your own or hire legal assistance to increase your chances at a fair settlement.

    For Serious Injuries, Contact a San Diego, California Personal Injury Attorney Today!

    San Diego, California personal injury attorney Mark C. Blane and his legal team aren't like some of the other San Diego injury attorneys you may have met with or seen ads for around town. Our goal is to educate our clients - even those whose cases we don't take - so that you not only understand the legal process ahead of you but the basics of San Diego injury law and your legal rights.

    You can get started by ordering one of our FREE injury guides including Wolf in Sheep's Clothing: What Your Insurance Company Doesn't Want You to Know and Won't Tell You Until It's Too Late! or The 10 Secrets You Need to Know About Your Injury Case Before You Call a Lawyer. Contact us today to schedule your appointment - 888-845-6269 or 619-813-7955. We are proud to serve San Diego's Spanish speaking population and even offer our FREE California personal injury book en Español.

  • CALIFORNIA COMMON FUND DEFENSE: Does the California Common Fund Doctrine apply in cases where my medical care was covered in part or in full by my auto insurance carrier known as my "medical pay benefits" provision? How does this relate to my California personal injury settlement?

    Yes, it does.

    If part or all of your medical care was covered by your auto insurance under medical pay benefits, then yes, your lawyer can argue the common fund doctrine defense to lower their (medical pay) insurance lien reimbursement request from you in order to dramatically increase your net recovery in a California personal injury settlement.  This is just another reason why good California personal injury attorneys are needed on these types of issues in order to protect injured persons, and get them the most net recovery possible from a personal injury settlement!

    Here is some California case law on this FAQ:


    Lee v. State Farm 57 Cal.App.3d 458 (1976)
     Common fund doctrine applies to reduce a carrier's claim for med pay reimbursement by its pro rata share of plaintiff's attorneys fees and costs.

    Bartlett v. Pacific National Bank 110 Cal.App.2d 683,689; Hendricks v. Superior Ct., 197 Cal.App.2d 586, 589 Attorneys contingent fee contract gives attorney a lien on his client's recovery. 37. Cetenko v. United California Bank, 30 Cal.3d 528 (1982) Statutory lien does not take precedence over a prior attorneys fee lien unless statute otherwise provides.

    Mark C. Blane is a San Diego Auto Accident Attorney, and the managing lawyer of the Law Offices of Mark C. Blane, a San Diego, California Personal Injury Law Firm devoted to representing families of injured persons of automobile accidents. If you or someone you love, has been injured or killed in San Diego County, or Southern California, due to the negligence of another, please order your FREE copy of Mr. Blane's book, The 10 Secrets You Need To Know About Your Injury Case, BEFORE You Call A Lawyer. It is full of helpful information, insights, and secrets that will help you protect your legal rights.  It normally sells for $16.95; however, it is free to all California residents, or those injured in a California accident.

  • CALIFORNIA MEDICAL PAY BENEFITS: Can my Medical Pay benefits, under my auto policy, come after me directly to get reimbursed from my California personal injury settlement - and if so, how are they able to do so? What if I had an attorney on my case and he or she forgets to reimburse them?

    Yes, they can - it is called a subrogation lien right, and they can do it in a few different ways.
     
    First, they can wait (as they usually do) until your California personal injury case settles. Depending on if you used an injury attorney will depend on what California state law arguments you can use to reduce their "lien interest."

    Second, if they want, and your case has been filed in court, they hire their own attorney(s) and intervene on your injury case to make sure their lien interest is protected - but this cost money for them and it is not cost effective since Medical Pay lien amounts are usually under $10,000.00; so usually they wait for settlement or judgment and ask for reimbursement from you (you and your attorney will be sent letters reminding you all of their lien interest).

    If you fail to pay them back, they can go after you personally - including your lawyer (potentially) because he or she will be said to have had "constructive notice" (should have known about it) of their lien interest. If the amount is low, they will either send you to collections or even California small claims court!  If your lawyer did not reimburse them you can go after your lawyer for professional legal malpractice (negligence).

    Here is the law on it in California:
     

    Progressive West Ins. Co. v Yolo County Superior Court, 135 Cal.App.4th 263 (2005) Case arising out of med pay reimbursement. Held that in personal injury cases, insurer cannot assert its subrogation claim directly against 3d party tortfeasor. Insurer may intervene in 3d party action or wait to seek reimbursement out of the recovery. If the insurer does not intervene in 3d party action, its right to recover is limited by the "make whole" rule to recover only after the insured has recouped his loss and some or all of his litigation expenses. Ct held that both reimbursement rights and subro rights fall under the rubric of subro and are therefore both subject to "make whole" doctrine. The insurance contract may waive the "make whole" rule but it must do so by clearly and specifically giving the insurer priority out of the proceeds regardless of whether insured was made whole. Insured here filed a 17200 action for the alleged unfair business practice of the insurer seeking full med pay reimbursement without regard to the "make whole" and common fund doctrine. The court affirmed the trial court's denial of insurer's demurrer to the 17200 action for unfair business practices.
     

    Mark C. Blane is a San Diego Auto Accident Attorney, and the managing lawyer of the Law Offices of Mark C. Blane, a San Diego, California Personal Injury Law Firm devoted to representing families of injured persons of automobile accidents. If you or someone you love, has been injured or killed in San Diego County, or Southern California, due to the negligence of another, please order your FREE copy of Mr. Blane's book, The 10 Secrets You Need To Know About Your Injury Case, BEFORE You Call A Lawyer. It is full of helpful information, insights, and secrets that will help you protect your legal rights.  It normally sells for $16.95; however, it is free to all California residents, or those injured in a California accident.

     

     

     

  • CALIFORNIA PERSONAL INJURY SETTLEMENT MEDICARE: What is the Medicare Secondary Payer (MSP) Recovery Program , and how is it relevant to my personal injury settlement?

     

    The federal health insurance program known as Medicare has a lien reimbursement interest on any California personal injury settlement - this means Medicare has the right to subrogate (or get paid back what it paid out) on an injured person's injury settlement. A good injury lawyer will know how to negotiate this lien interest low in order to increase an injured person's net recovery!

    Overview: Medicare Secondary Payer (MSP) Recovery Program

     

    The Medicare statutes provide for Medicare to be the secondary payer whenever there is other insurance that covers health care for Medicare beneficiaries, but requires Medicare to make a conditional payment for the care when a primary insurer does not pay promptly. 42 U.S.C. § 1395y(b)(2). Medicare’s payment is conditioned on reimbursement before the expiration of 60 days after Medicare receives notice or other information that payment has been or should be made from another source, and the Secretary may charge interest until reimbursement is made. Id. She may waive (in whole or part) the reimbursement requirement, if she determines that waiver is in the best interests of the program. 42 U.S.C. § 1395y(b)(2)(B)(v).

    The Medicare statute, 42 U.S.C. § 1395ff, also provides for administrative review and appeal rights to beneficiaries to resolve MSP claim disputes.

    “[T]he nature of MSP monies reimbursable to Medicare, as opposed to non-MSP monies to which Medicare is not entitled, is not always discernible with pinpoint accuracy at the time a Medicare beneficiary becomes entitled to a settlement check . . . which in whole or in part is meant to encompass medical expenses previously “conditionally’ paid by Medicare.” Wall v. Leavitt, 2008 WL 4737164 *1 (E.D. Calif. 2008).

    Mark C. Blane is a San Diego Auto Accident Attorney, and the managing lawyer of the Law Offices of Mark C. Blane, a San Diego, California Personal Injury Law Firm devoted to representing families of injured persons of automobile accidents. If you or someone you love, has been injured or killed in San Diego County, or Southern California, due to the negligence of another, please order your FREE copy of Mr. Blane's book, The 10 Secrets You Need To Know About Your Injury Case, BEFORE You Call A Lawyer. It is full of helpful information, insights, and secrets that will help you protect your legal rights.  It normally sells for $16.95; however, it is free to all California residents, or those injured in a California accident.

     

     

     

  • CALIFORNIA COLLATERAL SOURCE RULE: What the heck is the Collateral Source Rule and why is it relevant to my California personal injury settlement?

    This is one of the most powerful arguments your California injury attorney can make in defending your accident & bodily injury case against a sneaky defense lawyer at time of trial or during negotiations on your injury case!!!  

    The collateral source rule simply says that any evidence of you having private health insurance that covered part or all of your medical care is immaterial (not relevant) in terms of it being introduced as evidence (proof) that your medical bills were partly paid already or covered completely by your private health plan (the collateral source).  Why? Because a defense lawyer will try and argue that the amount your health plan (the collateral source) covered (a much lower amount) should be the medical bills a jury gets to see instead of what the actual medical bills were (a much higher amount).  

    You see, if a sneaky defense lawyer can convince  a judge that is what the jury should see at time of trial, it can impact your injury case negatively in terms of pain and suffering damages because the jury only gets to see the lower amount of medical bills (what your health plan covered). However, do not worry!  The collateral source rule is alive and well in California and you need a good injury lawyer to argue for it!  I do this on every injury client to ensure we get the true medical bills in front of the jury!

    Here is the law on it:
     

    Helfend v. Southern California Rapid Transit District, 2 Cal.3d 1 (1970)

    Seminal case regarding collateral source rule--contains great language to the effect that a personal injury plaintiff is rarely overcompensated despite the collateral source rule because he/she has to pay attorneys fees and costs. See also Lund v. San Joaquin RR, 31 Cal.4th 1, (2003); Arambula v Wells, 72 Cal.App.4th 1006 (1999); McKinney v. Portland Cement, 96 C.A.4th 1214 ('02). BAJI 14.10 – pltf to recover “reasonable value” of medical expenses. CACI 3903A “the reasonable cost of reasonably necessary medical care...” Note—People v. Hamilton, 114 Cal.App.4th 932 (2004) recently extended the collateral source rule to restitution claims in criminal court, noting that “it is firmly established as the California rule.” quoting 6 Witkin, Cal. Law, Torts, §1388.

    Just another reason why good California injury attorneys are needed on California injury cases! 

    Mark C. Blane is a San Diego Auto Accident Attorney, and the managing lawyer of the Law Offices of Mark C. Blane, a San Diego, California Personal Injury Law Firm devoted to representing families of injured persons of automobile accidents. If you or someone you love, has been injured or killed in San Diego County, or Southern California, due to the negligence of another, please order your FREE copy of Mr. Blane's book, The 10 Secrets You Need To Know About Your Injury Case, BEFORE You Call A Lawyer. It is full of helpful information, insights, and secrets that will help you protect your legal rights.  It normally sells for $16.95; however, it is free to all California residents, or those injured in a California accident.

  • CALIFORNIA "COMMON FUND" DOCTRINE: What in the world is the "Common Fund Doctrine" and how is it relevant to my California personal injury settlement? For example, all of my medical care for my car accident was covered under my private Kaiser Permanente Health Plan - anything I should know???

     

    Yes, this is an important concept to understand, and a good California injury attorney will know how to use it on your California injury case.
     
    First, what is the "common fund doctrine?"  It first started with the

     United States Supreme Court when it created the common fund doctrine, as a source of attor­ney’s fees. If attorneys’ efforts create a 

    fund or benefit for others (their own client), the court is empowered to award fees from that fund to the attorney.  This means if an attorney works to get you an injury settlement, then the private health insurance that covered the medical bills, who did not join in the efforts to obtain the settlement, must offset their reimbursement interests by the attorney contingency % the attorney charged on the injury case.  Thus lowering what the injured client has to pay back to the private health plan.  Make sense?  So a good lawyer can help their client save money by being able to not pay back dollar for dollar on  an health insurance lien. This is particularly true for Kaiser health plans.  A California injury lawyer can argue the common fund defense to lower what is paid back to Kaiser at time of settlement (Speial rules apply if Kaiser plan protected by ERISA).

     

    Here is the California law on it relation to any Kaiser Permanente Health Insurance lien interests:
    Samura v. Kaiser Foundation Health Plan, Inc., 17 Cal.App.4th 1284, 1287 (1993) The court held that the common fund doctrine applied to the lien of Kaiser to effectuate a pro rata reduction for the claimant's attorney's fees and costs. The “make- whole” doctrine can be waived by contract. The doctrine of unconscionability applies to reimbursement provisions.
     

    Mark C. Blane is a San Diego Auto Accident Attorney, and the managing lawyer of the Law Offices of Mark C. Blane, a San Diego, California Personal Injury Law Firm devoted to representing families of injured persons of automobile accidents. If you or someone you love, has been injured or killed in San Diego County, or Southern California, due to the negligence of another, please order your FREE copy of Mr. Blane's book, The 10 Secrets You Need To Know About Your Injury Case, BEFORE You Call A Lawyer. It is full of helpful information, insights, and secrets that will help you protect your legal rights.  It normally sells for $16.95; however, it is free to all California residents, or those injured in a California accident.

     

     

     

     

  • CALIFORNIA HOSPITAL LIENS: Can a hospital recover more, beyond what it agreed to accept from my private health insurance carrier, when I get a California personal injury settlement? (Also known as the " Nishihama Rule" )

    No, it cannot!
     

    A hospital makes bargains and contracts with different health care providers.  If your health insurance carrier covered the hospital bill in full, the hospital cannot come after more funds from you; for example, your personal injury settlement.  Why? Because the contract between your health plan is between the hospital and the health plan and has nothing to do with you. This contract takes you out of the equation, totally.  The hospital benefits under this arrangement too, because it gets cash right away from your health plan, the health plan has the hospital as a "network provider" and advertises the hospital in its own marketing brochures.  The health plan benefits as well because the hospital allows the health plan to pay much less in what was actually charged.  You see, it is a circle of benefits going on here, behind the scenes!

    Here is the law on it:
     
    Nishihama v City & County of San Francisco, 93 Cal.App.4th 298 (2001)  Hospital's right to recover on hospital lien does not extend beyond the amount it agreed to accept from insurance co as payment in full for services to the injured plaintiff. Cites and follows Hanif and extends it to private insurance context.


    Mark C. Blane is a San Diego Auto Accident Attorney, and the managing lawyer of the Law Offices of Mark C. Blane, a San Diego, California Personal Injury Law Firm devoted to representing families of injured persons of automobile accidents. If you or someone you love, has been injured or killed in San Diego County, or Southern California, due to the negligence of another, please order your FREE copy of Mr. Blane's book, The 10 Secrets You Need To Know About Your Injury Case, BEFORE You Call A Lawyer. It is full of helpful information, insights, and secrets that will help you protect your legal rights.  It normally sells for $16.95; however, it is free to all California residents, or those injured in a California accident.

     

  • CALIFORNIA HEALTH LIEN SUBROGATION | POST TRIAL MOTIONS: Can a defense lawyer put on evidence of what my health insurance paid out for my medical bills after a jury verdict in my favor , in an attempt to reduce the jury verdict on my California bodily injury case??? (Also known as a "Hanif/Nishihama" argument)

    Believe it or not, but yes a defense lawyer can motion the court to do so!  It is called a "post trial motion" but I believe it to be a motion not based on law.  However, for purposes of my answer, just know it can be done and is being done across California.
     
    First of all, this has been established in California after the insurance industry "brainwashed" the California judges to believe this was okay and proper to do.  It was done a few years ago after a bunch of California judges were invited to Hawaii for some educational training seminars and one part of the seminar talked about doing post trial motions on the medical bills. In my opinion, there is no justification legally for "a post trial motion" asking a judge "post verdict" what the reasonable value of the medicals should be - this should be a jury question and not a post trial motion. This violates the California collateral source rule, and the California privacy act, not to mention other legal principles. Again, this is a defense maneuver to lower the jury's award on a personal injury case.  

    Here is some California case law on the subject:

    Greer v. Buzgheia, 141 Cal.App.4th 1150 (2006)  A Hanif/Nishihama argument should be made post-trial so that the jury can assess the full measure of damages. Failure of the defense attorney bringing the motion to segregate past medical specials from past lost income in the special verdict form operates as a forfeiture of the right to bring such a motion if it would require the court to speculate as to the amount of medical expenses awarded by the jury.

    Mark C. Blane is a San Diego Auto Accident Attorney, and the managing lawyer of the Law Offices of Mark C. Blane, a San Diego, California Personal Injury Law Firm devoted to representing families of injured persons of automobile accidents. If you or someone you love, has been injured or killed in San Diego County, or Southern California, due to the negligence of another, please order your FREE copy of Mr. Blane's book, The 10 Secrets You Need To Know About Your Injury Case, BEFORE You Call A Lawyer. It is full of helpful information, insights, and secrets that will help you protect your legal rights.  It normally sells for $16.95; however, it is free to all California residents, or those injured in a California accident.

     

     

     

  • CALIFORNIA HOSPITAL LIEN ACT: Under the California Hospital lien act, does a hospital lien take precedent before my attorney's contingency fee (lien) on my California personal injury case?

    Depends on "when" the hospital lien properly served notice of its lien on the injured party.
     

    Under the Hospital Lien Act (HLA) at Civil Code §3045.1, et seq., a hospital lien is subject to any prior liens. The language in the statute that the lien “shall not be effective” until proper service is made equates to the hospital lien not being created until the lien is properly served. In contrast, an attorney fee lien is created when the retainer agreement is signed. Thus, where a patient is treated by the hospital before the patient retains counsel, but the hospital lien is served after the attorney is retained, the attorneys’ fee lien is a “prior lien” to the hospital lien. County of San Bernardino v. Calderon (2007) 148 Cal.App.4th 1103

    Mark C. Blane is a San Diego Auto Accident Attorney, and the managing lawyer of the Law Offices of Mark C. Blane, a San Diego, California Personal Injury Law Firm devoted to representing families of injured persons of automobile accidents. If you or someone you love, has been injured or killed in San Diego County, or Southern California, due to the negligence of another, please order your FREE copy of Mr. Blane's book, The 10 Secrets You Need To Know About Your Injury Case, BEFORE You Call A Lawyer. It is full of helpful information, insights, and secrets that will help you protect your legal rights.  It normally sells for $16.95; however, it is free to all California residents, or those injured in a California accident.

     

  • CALIFORNIA MEDI-CAL HEALTH LIEN REDUCTION: What the heck is an "Ahlborn Reduction," and why or how is it relevant to my personal injury case settlement?

     

    An "Ahlborn Reduction" is an argument a good injury lawyer will use on a client's injury case to reduce any MediCal health lien interest that needs to be paid back to MediCal at time of a personal injury settlement.  The more the lawyer can reduce the MediCal lien interest, the more the injured client will net in monetary recovery from the settlement.  So it is very important and very relevant to a personal injury case that utilized MediCal funds to pay for part or all of the medical care (for an injured person).  If this is you, then this FAQ is very important to be aware of!

    LEGAL AUTHORITY FOR AN "AHLBORN REDUCTION"

     

    As you know, the Supreme Court’s holding in the Ahlborn case was codified in California in W&I 14124.76. Said section provides in pertinent part that, “Recovery of the director’s lien from an injured beneficiary’s action or claim is limited to that portion of a settlement...that represents payment for medical expenses...” (emphasis supplied).

    AHLBORN CALCULATION (THE FORMULA)

    The following is a case example: 

    "Given a total value of $11.3 million, it is a simple calculation to determine what percentage of his total injuries that Mr. XX actually recovered, as follows:

    Total Settlement/Total Value (you divide the two numbers together), or

    $465,000/$11.3 million = .0412

    In other words, Mr. XX recovered no more than 4.12% of his total damages. It therefore stands to reason that he only collected 4.12% of his medical expenses paid by Medi- Cal. Therefore, Medi-Cal’s lien must be reduced to:

    Total Lien X Percentage of recovery, or

    $157,980 X .0412 = $6,509
     

    This is the exact amount of Mr. XX’s medical expenses that Medi-Cal paid that he recovered in his settlement. Notably, Mr. VV already offered to pay this amount in his last letter. Also, please note that if we had used the $15 million total value figure expressed by Mediator Justice Dossee (Ret.), versus the more conservative average figure of $11.3 million, the Ahlborn figure would be more than 25% lower.

     

    We agree with Medi-Cal’s position as stated in its letters that no further reduction is allowable for attorneys fees or costs, per W&I 14124.785.

    Medi-Cal has routinely granted large reductions in Medi-Cal liens to this office, when they are supported by the evidence. Attached as Exhibit 5 is a redacted letter from Supervisor Diana Ghilarducci confirming an 85% reduction of a lien based upon a jury verdict finding plaintiff 75% comparatively negligent. Attached as Exhibit 6 is redacted recent letter from Medi-Cal agreeing to a 69% reduction of its lien for a woman who had recovered $8.56 million in settlement. In that case, the evidence supported and we had requested a 71% reduction. In another case, we obtained from the court the 84% reduction we had proposed when Medi-Cal failed to stipulate to same.

    For all of these reasons, we are offering the sum of $6,509 in full satisfaction of Medi-Cal’s lien against our client. This offer will remain open for 20 days from the date of this letter. If we have not reached a satisfactory settlement within that period, we will file a motion with the court."

    Conclusion:

    An "Ahlborn Reduction" is just another way a California personal injury attorney can advocate for their clients position when negotiating a reduction to MediCal for an injured party(s) personal injury case.  For more information, you can check other articles and blog postings on the subject or call me directly at (619) 813-7955.


    Mark C. Blane is a San Diego Auto Accident Attorney, and the managing lawyer of the Law Offices of Mark C. Blane, a San Diego, California Personal Injury Law Firm devoted to representing families of injured persons of automobile accidents. If you or someone you love, has been injured or killed in San Diego County, or Southern California, due to the negligence of another, please order your FREE copy of Mr. Blane's book, The 10 Secrets You Need To Know About Your Injury Case, BEFORE You Call A Lawyer. It is full of helpful information, insights, and secrets that will help you protect your legal rights.  It normally sells for $16.95; however, it is free to all California residents, or those injured in a California accident.

     

  • CALIFORNIA "MEDI-CAL" HEALTH LIENS: If my medical care was paid by California MediCal, do I have to pay back MediCal from my settlement, and how does the fact that I used MediCal affect my California personal injury case? (Also known as the " Hanif Rule" )

    Yes, a person who had part or all of their medical care covered under California MediCal has to pay back MediCal at the time of settlement from the settlement funds.  If not, then MediCal can go after the person legally to pursue those funds.  MediCal can also go after the attorney handling the injured party's person injury case is this is not done!  In fact, it is said the injury attorney has constructive notice (means he or she "should have known") of the California MediCal potential lien interest if his or her client was simply a California MediCal lien recipient!

    Also, a defense lawyer will argue that a jury only gets to see the medical bills that were actually paid out by MediCal (which is always a lower amount) as opposed to the jury seeing the actual, or true, medical bills (which is always a higher amount). This impacts a person's personal injury case, if part or all medical bills were covered under MediCal because the defense lawyer is trying to lower the chances of what a jury would give that injured person in pain and suffering damages if they see a lower amount of medical bills (what California MediCal paid out). Make sense?  So a good injury lawyer is needed on these cases to fight this aspect.  Here is the law on this: 

     
    In the California court case called Hanif v. Housing Authority, 200 Cal.App.3d 635 (1988) The Court held that where there was a Medi-Cal lien, the recovery was limited to the amount which Medi-Cal actually paid or for which the plaintiff incurred liability.

    Also, remember, a good injury lawyer not only has to fight the above issues, but he or she has got to know how to reduce MediCal's lien interest when a settlement or verdict is received (Also known as a "Ahlborn Reduction")!  Just another reason why good California personal injury lawyers are needed to help those injured!  For more information, you can call me directly at (619) 813-7955.

     

    Mark C. Blane is a San Diego Auto Accident Attorney, and the managing lawyer of the Law Offices of Mark C. Blane, a San Diego, California Personal Injury Law Firm devoted to representing families of injured persons of automobile accidents. If you or someone you love, has been injured or killed in San Diego County, or Southern California, due to the negligence of another, please order your FREE copy of Mr. Blane's book, The 10 Secrets You Need To Know About Your Injury Case, BEFORE You Call A Lawyer. It is full of helpful information, insights, and secrets that will help you protect your legal rights.  It normally sells for $16.95; however, it is free to all California residents, or those injured in a California accident.

     

     

  • CALIFORNIA MEDI-CAL HEALTH LIEN: Can California MediCal come after a lawsuit for wrongful death to try and get paid back what they paid out in the underlying wrongful death action?

    No, MediCal cannot seek reimbursement in a wrongful death action - only in survival actions. Special rules applies to MediCal and their reimbursement lien seeking powers.  I suspect this may have something to do with the fact that pain and suffering damages are altered in a wrongful death action - the suit is filed by the survivors of the person who was wrongfully killed and this affects how MediCal cannot get reimbursed on such legal actions.

    Here is the law on this FAQ:
     

    Fitch v. Select Products, 36 Cal.4th 812 (2005)  Although Medi-Cal is authorized to file suit against a third party liable for the death of a Medi-Cal beneficiary who received benefits, the controlling statutes do not authorize Medi-Cal to recover such benefits from the plaintiffs in the action for beneficiary's wrongful death. Medical expenses are not recoverable in a wrongful death action—only in a survival action.
     

    Mark C. Blane is a San Diego Auto Accident Attorney, and the managing lawyer of the Law Offices of Mark C. Blane, a San Diego, California Personal Injury Law Firm devoted to representing families of injured persons of automobile accidents. If you or someone you love, has been injured or killed in San Diego County, or Southern California, due to the negligence of another, please order your FREE copy of Mr. Blane's book, The 10 Secrets You Need To Know About Your Injury Case, BEFORE You Call A Lawyer. It is full of helpful information, insights, and secrets that will help you protect your legal rights.  It normally sells for $16.95; however, it is free to all California residents, or those injured in a California accident.

     

     

     

     

  • SAN DIEGO CA COUNTY MEDICAL SERVICES (CMS) HEALTH LIENS: If all or part of my medical care for my California bodily injury case was covered by San Diego CMS , do I have pay them back at time of settlement of my bodily injury case for what they paid for my medical care?

    Depends!  

    It depends on whether you settled your San Diego County personal injury case prior to trial (private settlement), or your case was settled at trial by jury (or in California small claims court) in what is called a "judgment."  So the answer to this FAQ turns on whether it was it a "private settlement" or a court "judgment."

    If you settled your case privately, then no, CMS cannot enforce their medical lien for reimbursement from your California personal injury settlement. However, interestingly, if your claim for bodily injuries was settled in court by a court entered judgment, then yes, you have to negotiate an amount back directly with San Diego County Medical Services, collectively known as CMS.  You should call me with any questions on this at (619) 813-7955.

    Here is the California law on this FAQ:

     

    Mares v. Baughman, 92 Cal.App.4th 672 (2001)  

    By its unambiguous terms, Govt. Code § 23004.1 provides a county (CMS) with a lien only on judgments and not settlements. Thus, a CMS type lien imposed upon a settlement may be expunged on a motion. The court noted that the statute provided independent subrogation rights to public entities to assert their claims.

     

     

    Mark C. Blane is a San Diego Auto Accident Attorney, and the managing lawyer of the Law Offices of Mark C. Blane, a San Diego, California Personal Injury Law Firm devoted to representing families of injured persons of automobile accidents. If you or someone you love, has been injured or killed in San Diego County, or Southern California, due to the negligence of another, please order your FREE copy of Mr. Blane's book, The 10 Secrets You Need To Know About Your Injury Case, BEFORE You Call A Lawyer. It is full of helpful information, insights, and secrets that will help you protect your legal rights.  It normally sells for $16.95; however, it is free to all California residents, or those injured in a California accident.

     

     

  • CALIFORNIA HEALTH LIEN SUBROGATION RIGHTS: I just found out that my employer sponsored health plan is protected by a federal law known as ERISA , can my health plan subrogate or get paid back from my personal injury funds when I settle my California personal injury case?

    Yes, it can!  ERISA protected health plans are tricky and you need an experienced California injury lawyer to help you - you can call me directly at (619) 813-7955.

    Here is some of the California law (federal law which applies to California) on this FAQ:
     

    Sereboff v. Mid Atlantic Medical Services, Inc. 126 S. Ct. 1869, 547 U.S. 356 (2006) ERISA plan may enforce a subrogation or reimbursement provision through an action for constructive trust or equitable lien against a plan participant holding settlement funds. The Ct distinguished its 2002 ruling in Knudson, supra, on the basis that the ERISA plan there sued persons not holding the funds (which had been deposited in a Special Needs Trust). Also distinguished Knudson on the basis that instead of seeking to impose personal liability as in Knudson, the Sereboff action “sought its recovery through a constructive trust or equitable lien on a specifically Identified fund.” Id at 363. The Ct declined to decide the application of the "make whole" doctrine but suggested in dicta that said defense would not apply to an action for equitable lien. Ct did not address the common fund doctrine which had been applied by both lower courts because it was included in the reimbursement provision in the plan.

    This case is inconsistent with all 9th Circuit precedent since 1994 holding that ERISA plans cannot enforce their contractual reimbursement provisions under ERISA because 29 USC 1132(a)(3) only allows plans to sue for "equitable relief to enforce the terms of the plan." Ct relies heavily on its 1914 decision in Barnes for the proposition that one promising to convey property to be recovered in the future becomes a constructive trustee “as soon as he recovers a title to the thing...” suggesting title argument.
     

    Mark C. Blane is a San Diego Auto Accident Attorney, and the managing lawyer of the Law Offices of Mark C. Blane, a San Diego, California Personal Injury Law Firm devoted to representing families of injured persons of automobile accidents. If you or someone you love, has been injured or killed in San Diego County, or Southern California, due to the negligence of another, please order your FREE copy of Mr. Blane's book, The 10 Secrets You Need To Know About Your Injury Case, BEFORE You Call A Lawyer. It is full of helpful information, insights, and secrets that will help you protect your legal rights.  It normally sells for $16.95; however, it is free to all California residents, or those injured in a California accident.