Answers to Frequently Asked Questions About Workers' Comp & Personal Injury Litigation

If you were hurt in a personal injury or workplace accident, you probably have a number of questions about your rights and legal options. Fortunately, Attorney Mark Blane has answers. Browse answers to FAQs here.

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  • 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.

     

     

     

  • CALIFORNIA UNINSURED MOTORIST COVERAGE: What is California Uninsured or Under-insured Motorist coverage, also known as UIM or UM coverage??? And, how does UM coverage differ from First Party Coverage?

    An auto policy's UIM coverage differs significantly from first-party medical coverage. For example, first-party medical coverage, by definition, only covers medical expenses, while UIM insurance covers all damages for which an underinsured driver would be liable, such as pain, suffering, lost income, emotional distress, lost earning capacity, loss of consortium, and property damage, just to name a few.  So the difference is legal damages v. medical expenses. This is the main difference between the two and it becomes important on other matters your injury lawyer would handle for your personal injury case (like matters involving health lien subrogation interests or the like).

    Legal Research for Above FAQ:  See California State Auto. Ass'n Inter-Ins. Bureau v. Carter, 164 Cal. App. 3d 257, 210 Cal. Rptr. 140, 143 (Cal. Ct. App. 1985). Moreover,
    unlike first-party medical coverage, UIM coverage is fault-based, meaning that insured must establish a third party's liability in tort to trigger coverage. See ROBERT E. KEETON & ALAN A. WIDISS, INSURANCE LAW § 4.9(e)-(d) at 398- 404 (2d ed. 1987). Finally, while first-party medical insurance covers medical expenses up to the policy limits, UIM insurance only covers damages exceeding the third party tortfeasor's own insurance limits. Id.

    Mark C. Blane is a San Diego Personal 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 in personal injury accidents including car accidents, slip and falls, dog bites, product defects, and the like. If you or a loved one has been killed or injured in an accident in San Diego, 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 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 an California accident. 

  • CALIFORNIA "MAKE WHOLE" DOCTRINE: What the heck is the "Make Whole Doctrine," and how is it relevant to my personal injury case or settlement?

    This is a great question, and one that many people simply are unaware or do not know about!
     

    The make whole doctrine means you, the injured person, have to be "made whole" before any private or public health lien interest (any private or public health insurance plan) can take reimbursement from your gross settlement from a personal injury case. This comes from California state law protection under "common law."  

    First, you must realize if you have a health plan, whether public or private, and it paid some or all of your medical bills from a California personal injury settlement (some negligent third party that caused you your injuries and medical bills), you will have address reimbursing the health plan for what it paid out in medical expenses.  One of the first California state law protections you have on your side is the "make whole doctrine."  A good injury lawyer will best know how to argue the protection so you can reduce any reimbursement amount back to your health plan. The less you have to pay back, the more in net recovery you get to keep from your personal injury settlement!  Remember, each health plan is unique - meaning each plan is different from the next. Different rules apply whether your health plan is private or public (like Medi-Cal or Medicare). Some private health plans are governed by a federal law known as "ERISA." Depending on the type of ERISA protection on your private health plan may or may not make it more difficult to argue or employ the "make whole rule" or also known as the "make whole doctrine.  For more questions on this, you can call me directly at (619) 813-7955. 

    Here is some California law on the Make Whole Doctrine:

    Sapiano v. Williamsburg National Ins. Co., 28 Cal.App.4th 533 (1994)  Enunciates the "make whole" doctrine, whereby an insured must be fully compensated for his loss before an insurer can recover through subrogation. Note that this doctrine can be waived if clearly so stated in the policy.

     

    Barnes v. Independent Auto Dealers Assn. of CA H & B Plan, 64 F.3d 1389,1395 (9th Cir. 1995)  Adopted “make whole” doctrine and applied to subrogation clauses in ERISA plans as a matter of federal common law. Also adopted CA rule of interpreting insurance policies for interpretation of ERISA plans—i.e. construction of ambiguities v. the drafter and in favor of insured

     

     

     

  • CALIFORNIA MAKE WHOLE DEFENSE: Okay, there is the "make whole doctrine" and the "make whole defense" - what the heck is the "make whole defense?"

    Okay, I gave you a general answer to the "make whole doctrine" under California state law protection.

    To answer your question about using it as a defense, please see as follows: 
     
    Make whole is still a complete defense to a health plan subrogation or reimbursement claim under both California state law and ERISA (federal law), unless it is expressly waived in the insurance contract (provision). Express waivers of the defense are enforceable. Bear in mind that several large health plans (i.e. Health Net & Pacific Care) generally do not waive make whole in their subrogation provisions.  Those same health plans are heavily capitated and purport to assign the right to balance bill to their providers. Providers are normally subject to the make whole defense because they are usually creditors.  However, in the case of providers taking the right to balance bill by assignment from the health plan, providers subject themselves to all defenses that the insured had against the health plan, including the make whole defense.
     

    Mark C. Blane is a San Diego Personal 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 in personal injury accidents including car accidents, slip and falls, dog bites, product defects, and the like. If you or a loved one has been killed or injured in an accident in San Diego, 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 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 an California accident.

     

     

  • CALIFORNIA INJURED CHILD SETTLEMENT QUESTION: After my injured child receives a bodily injury settlement and it is approved by the court, and the funds are deposited into a "minor's blocked account," can I or the Guardian Ad Litem (GAL) deposit more funds into the blocked account in the future?

    This question came up while I was opening a blocked account for an injured child recently and the answer is no.  Once the blocked account is opened with the bank or federally insured institution, it cannot be touched again without court order, or when the injured child reaches the age of majority (18 years old).

    Remember, the entire purpose with an injured child's blocked account is to secure the settlement funds for the injured child until they reach the age of eighteen.  This means the account holding the settlement funds must stay secure.  The only way to do this effectively is to make it a requirement that the funds stay secure by court order.  This makes logical sense too. The courts do not want to make adding or deleting funds from the blocked account a simple ordeal. Everything must be reviewed so that any action relating to the blocked account directly benefit the injured child. The rationale for this comes down to us from a public policy stand point meaning that there is a great need to protect the interests of not only minor children, but injured minor children. Unfortunately, in the past there have been unscrupulous parents who have tried to take advantage of their child's injury settlements. To this end, the courts have responded in a way that protects a child's legal interest.

    Some parents have forgotten that the funds are their child's settlement funds even though they (the parents) are named as the Guardian Ad Litem. The court is highly protective over an injured child's settlement funds, as it should be.  For more information on this subject, please check out my articles, blogs and other FAQs regarding child injury settlements in California.
     

    Mark C. Blane is a San Diego Child Injury/Accident Attorney and the managing lawyer of the Law Offices of Mark C. Blane, a San Diego, California Personal Injury Law Office dedicated to representing families of minor children injured due to the negligence of others. If you or a loved one, who is a minor child, has been injured or killed in a child accident in San Diego, 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 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 accident. Also, you can check out Mr. Blane's book on California child injuries called Justice for the Injured Child available for sale; this book has become a California parent's legal survival guide to their child's California accident case.

     

  • SAN DIEGO CALIFORNIA INJURED CHILD QUESTION: If I am successfully appointed by the court to be the Guardian Ad Litem (GAL) for my child, what should I wear to the Court Approval Hearing (the Minor's Compensation Hearing)?

    As with any court appearance, formal dress should first be considered. Not only does this show respect for the court environment, but it also teaches the minor child that this is a formal event, one of importance to him or her. I tell my clients to dress as they would for a job interview, or for church. If you do not have a formal suit or suit dress, then business casual is fine. If the minor child has to get back to school after the hearing, then business casual or school clothes are certainly understandable.

    I also tell my clients to bring a book or newspaper, because the hearings are generally done in the mornings, and depending on the busy court calendar it may take some time for our case to be called before the judge. I have had minor compensation hearings called first in the lineup, and some for which we waited about two hours. I tell my clients to plan on taking the first half of the day off just in case it takes longer than expected.

    Remember these Minor's Compromise &  Release Hearings can take as short as 15 minutes or more than two hours - so it just depends. The fact is you should dress like you are going to church, a job interview or business meeting. Use your common sense and you will okay. You will be next to your child's injury lawyer or will most certainly be wearing a suit.  People forget that courts have what is called "court rules" and those rules do address what an attorney wears in court.  All of the rules say a lawyer must wear a formal dress (suit).  Thus, you should wear a formal outfit when you go to your child's court approval hearing.

    Mark C. Blane is a San Diego Child Injury/Accident Attorney and the managing lawyer of the Law Offices of Mark C. Blane, a San Diego, California Personal Injury Law Office dedicated to representing families of minor children injured due to the negligence of others. If you or a loved one, who is a minor child, has been injured or killed in a child accident in San Diego, 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 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 accident. Also, you can check out Mr. Blane's book on California child injuries called Justice for the Injured Child available for sale; this book has become a California parent's legal survival guide to their child's California accident case. 

  • CALIFORNIA INJURED BABY OR CHILD - THE SETTLEMENT CHECK: How soon after the California judge approves my injured baby's or child's settlement must the funds be deposited into a minor's blocked account?

    The Court Order to Deposit Settlement Funds from a Minor Child’s Injury Settlement Must Be Immediately Completed

    As briefly explained in other article postings or blogs on this website, in California, when the court orders that settlement funds to be received by a minor must be deposited in a financial institution (FDIC-insured bank or the like) and not disbursed without further order of the court, the order must include a provision that a certified or filed endorsed copy of the order must be delivered to a manager at the financial institution where the funds are to be deposited, and that a receipt from the financial institution must promptly be filed with the court, acknowledging receipt of both the funds deposited and the court order for deposit of funds, pursuant to California Probate Rule 7.953(a). Time is of the essence with the court order to deposit the funds for the benefit of the injured minor child.

     

    Typically the court order will declare that the minor can have full access to his or her settlement funds when he or she reaches the age of eighteen years without further order from the court. The minor who becomes an adult on his or her eighteenth birthday can then go into the bank where his or her funds are deposited, bringing along proof of his or her age, and have full access to the settlement funds.

    To sum up, the check must go in quickly - if the injury lawyer delays too long, then the court will call a hearing known as an "Order to Show Cause" on why it is taking too long.  There can be reasonable things that happen to cause a delay too.  One time, I had a mother who was the Guardian Ad Litem (GAL) who could not open a bank account in California because she was in the "Chex System." For whatever reason, one bank put out a warning that she is a bank risk to open a bank account. So I had to motion the court to appoint her sister (the child's aunt as the GAL). 
     

    Legal Research for the above FAQ:  See Scrunton v. Korean Air Lines Co., Ltd., (1995) 39 CA4th at 1607, 46 CR2d at 644. 133Goldberg v. Super. Ct. (Bankhead) (1994) 23 CA4th at 1383, 28 CR2d at 615-616 (a fee dispute between child’s parents, and a chiropractor).

    Mark C. Blane is a San Diego Child Injury/Accident Attorney and the managing lawyer of the Law Offices of Mark C. Blane, a San Diego, California Personal Injury Law Office dedicated to representing families of minor children injured due to the negligence of others. If you or a loved one, who is a minor child, has been injured or killed in a child accident in San Diego, 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 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 accident. Also, you can check out Mr. Blane's book on California child injuries called Justice for the Injured Child available for sale; this book has become a California parent's legal survival guide to their child's California accident case.

     

     

  • SAN DIEGO CALIFORNIA INJURED BABY OR CHILD - CONTENTS OF THE COURT DOCUMENTS FOR SETTLEMENT: What are the contents of the legal papers my child or baby's injury lawyer files in California Superior Court to get the court to approve my child's injury settlement?

    Contents of the Court Documents Regarding a Minor Child’s Injury Settlement

    Simply put, everything is in the papers filed with the court. The paperwork goes into a lot of detail regarding the settlement and the minor’s medical expenses. Remember, the judge will need all of these details to approve the settlement for the injured minor child. The judge will have a sense of the accident, the injuries, the medical bills, and of course, the settlement amount, the net recovery to the minor child, and the attorneys’ fees and litigation costs, after reviewing the filed papers. All of these items are important for the judge to make an informed decision as to the fairness of the settlement to the minor child. It is in the best interest of the minor child client, because the judge will be the one to approve and determine that everything with the settlement is done fairly, equitably, and correctly. This also gives reassurances to the parents, or guardian ad litem, that the settlement is good and in the best interest of the injured child.

    The judge usually focuses on the medical bills and what entity covered them, or if they were not covered, were they adequately covered under the amount of the settlement. The judge focuses on this because he or she wants to maximize the child's net recovery in a settlement and this is one opportunity to make sure this gets done. The power of the court to reduce the medical expenses is quite limited so the judge will look to the child's injury lawyer to make sure he or she has done their job in reducing any medical lien interest as low as possible. 

    Mark C. Blane is a San Diego Child Injury/Accident Attorney and the managing lawyer of the Law Offices of Mark C. Blane, a San Diego, California Personal Injury Law Office dedicated to representing families of minor children injured due to the negligence of others. If you or a loved one, who is a minor child, has been injured or killed in a child accident in San Diego, 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 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 accident. Also, you can check out Mr. Blane's book on California child injuries called Justice for the Injured Child available for sale; this book has become a California parent's legal survival guide to their child's California accident case.

  • SAN DIEGO CALIFORNIA INJURED BABY OR CHILD QUESTION: Is my injured child required to attend the California court hearing that approves his or her injury settlement?

    Is the Minor Child Required to Attend the Court Hearing for Approval of His or Her Bodily Injury Settlement?

    The short answer is yes, per the California Rules of Court 7.952(a); and I always encourage the parents of my injured child client to have him or her attend the court hearing. The reason for this is because the judge can then meet the minor child and ask him or her questions about his or her injuries, including their present medical condition. It also impresses on the child that this is an important matter, and also shows him or her the legal process as regards the settlement funds. The minor child’s presence will help to ensure approval of the court regarding the settlement amount which helps to prevent any unforeseen delays of the settlement itself. If the minor child is not present, and if the judge feels, based on the medical evidence and other factors, that mandatory appearance of the minor child is not required, then the minor child does not have to appear before the court for approval of his or her bodily injury settlement. This means the judge has found “good cause” to not require the child to physically appear for the court hearing. A good example of this would be when a child is out of state in private school, making travel costs to attend the court hearing not cost effective.

    In my San Diego child injury law practice, I encourage each of my injured child clients to attend - not only based on what was said above, but also so the injured child can "see" the legal process.  Also, it helps to solidify the importance of what they are doing and how it relates to their settlement funds - also the education to the injured child on financial responsibility really begins with this court approval hearing.
     

    Legal Research for the above FAQ:  CRC (Probate Rules) 7.953(a). 135 CRC (Probate Rules) 7.953(b). 136 CRC (Probate Rules) 7.951, and 7955; California Family Code Section 6602; California Probate Code Section 3601. 137 See Forms 12B:2 through 12B:6 Rivera, Cal. Prac. Guide: Civ. Pro. Before Trial FORMS (TRG).

     

    Mark C. Blane is a San Diego Child Injury/Accident Attorney and the managing lawyer of the Law Offices of Mark C. Blane, a San Diego, California Personal Injury Law Office dedicated to representing families of minor children injured due to the negligence of others. If you or a loved one, who is a minor child, has been injured or killed in a child accident in San Diego, 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 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 accident. Also, you can check out Mr. Blane's book on California child injuries called Justice for the Injured Child available for sale; this book has become a California parent's legal survival guide to their child's California accident case.

  • CALIFORNIA ACCIDENT AND INJURY TO A MINOR CHILD - COURT HEARING PROCESS: What are some questions generally asked by a California Superior court judge during the court approval hearing for an injured child's bodily injury settlement?

    Questions Generally Asked by the Judge during the Court Approval Hearing

    Depending on the age of the minor child, the judge will ask him or her about his or her injuries and present medical condition, about the accident itself, and, if the child is closer to age eighteen, about how he or she feels about the settlement. I have found that if my minor child client is older, sometimes questions about school or post–high school plans are discussed along with any plans as regard the settlement funds. The guardian ad litem is usually asked, especially if he or she is one of the parents, whether the minor child has fully recovered from his or her injuries. If the minor child client is very young, I have had judges show them a box of toys in the corner so they can watch the child walk to the toys just to make sure they look fine and have fully recovered from any injuries.

    As an aside, this is important part of the judicial approval process for an injured child's bodily injury settlement for many reasons.  The courts want to make sure the settlement is fair to the child and part of doing this is asking questions of the child. This is why I always stress the importance of the injured child to attend the hearing. Each case I have I always stress the importance of the above, and the child gets to hear from the judge his or her opinion on the settlement. It is a win/win situation. 

    Legal Research for the Above FAQ:  138 CRC (Probate Rules) 7.952.
     

    Mark C. Blane is a San Diego Child Injury/Accident Attorney and the managing lawyer of the Law Offices of Mark C. Blane, a San Diego, California Personal Injury Law Office dedicated to representing families of minor children injured due to the negligence of others. If you or a loved one, who is a minor child, has been injured or killed in a child accident in San Diego, 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 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 accident. Also, you can check out Mr. Blane's book on California child injuries called Justice for the Injured Child available for sale; this book has become a California parent's legal survival guide to their child's California accident case.

     

     

     

  • CALIFORNIA INJURED OR INCOMPETENT CHILD "SPECIAL NEEDS" TRUST: In California, was is a "Special Needs" trust and why is it important?

    Special Needs Trust

    A California court hast the power to order transfer of the minor’s settlement funds to a “special needs trust” upon the petition of the guardian, guardian ad litem, conservator or any person interested in the guardianship or conservator estate. The purpose of this type of trust is to provide for the minor child’s special needs, leaving Medi-Cal or other governmental programs to provide for the minor child’s medical and day-to-day needs. Without a special needs restriction upon the settlement funds, the minor child may lose eligibility for public assistance or, with this same thought, government agencies may assert a reimbursement right against settlement proceeds.

     A “Special Needs Trust” may be established by the court only if it determines all of the following to be true:

    The minor child has a disability that substantially impairs the child’s ability to provide for his or her own care or custody and constitutes a substantial handicap.

    The minor child is likely to have special needs that will not be met without the trust in place.

    The amount to be paid directly to the trust does not exceed the amount reasonably necessary to meet the minor child’s special needs.

    Payment of all statutory medical liens in favor of certain state and local California agencies that have rendered medical assistance to the injured minor child is a prerequisite to creation of this special type of trust. The trust is subject to continued court supervision, and it may be terminated upon proof by such an agency that the trust is not being used for the child’s special needs. A good child injury lawyer will know, in cases where a child’s injuries are severe and resources are limited, to look for the possible need of future public assistance. In fact, if a special needs trust is warranted for a particular child, it is best to establish one as soon as possible in order to maximize benefits to the child and minimize government medical liens.

    Legal Research for the above FAQ:  145 See L.A. Sup. Ct. Rules 10.186, 10.186.2. 146 Cal. Probate Code Section 3602 (d). 147See Hamilton v. Laine (1997) 57 CA4th 885, 887-890, 67 CR2d 407, 408-409.

     

    Mark C. Blane is a San Diego Child Injury/Accident Attorney and the managing lawyer of the Law Offices of Mark C. Blane, a San Diego, California Personal Injury Law Office dedicated to representing families of minor children injured due to the negligence of others. If you or a loved one, who is a minor child, has been injured or killed in a child accident in San Diego, 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 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 accident. Also, you can check out Mr. Blane's book on California child injuries called Justice for the Injured Child available for sale; this book has become a California parent's legal survival guide to their child's California accident case.

     

  • CALIFORNIA ACCIDENT AND INJURY TO A MINOR CHILD - COURT HEARING PROCESS: What are some questions generally asked by a California Superior court judge during the court approval hearing for an injured child's bodily injury settlement?

    Questions Generally Asked by the Judge during the Court Approval Hearing

    Depending on the age of the minor child, the judge will ask him or her about his or her injuries and present medical condition, about the accident itself, and, if the child is closer to age eighteen, about how he or she feels about the settlement. I have found that if my minor child client is older, sometimes questions about school or post–high school plans are discussed along with any plans as regard the settlement funds. The guardian ad litem is usually asked, especially if he or she is one of the parents, whether the minor child has fully recovered from his or her injuries. If the minor child client is very young, I have had judges show them a box of toys in the corner so they can watch the child walk to the toys just to make sure they look fine and have fully recovered from any injuries.

    As an aside, this is important part of the judicial approval process for an injured child's bodily injury settlement for many reasons.  The courts want to make sure the settlement is fair to the child and part of doing this is asking questions of the child. This is why I always stress the importance of the injured child to attend the hearing. Each case I have I always stress the importance of the above, and the child gets to hear from the judge his or her opinion on the settlement. It is a win/win situation. 

    Legal Research for the Above FAQ:  138 CRC (Probate Rules) 7.952.

    Mark C. Blane is a San Diego Child Injury/Accident Attorney and the managing lawyer of the Law Offices of Mark C. Blane, a San Diego, California Personal Injury Law Office dedicated to representing families of minor children injured due to the negligence of others. If you or a loved one, who is a minor child, has been injured or killed in a child accident in San Diego, 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 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 accident. Also, you can check out Mr. Blane's book on California child injuries called Justice for the Injured Child available for sale; this book has become a California parent's legal survival guide to their child's California accident case.

     

     

     

  • CALIFORNIA "SPECIAL NEEDS TRUST" FOR AN INCOMPETENT OR INJURED CHILD: What is a "Special Needs Trust" for an injured or incompetent child and why is it important?

    Special Needs Trust

    A California court hast the power to order transfer of the minor’s settlement funds to a “special needs trust” upon the petition of the guardian, guardian ad litem, conservator or any person interested in the guardianship or conservator estate. The purpose of this type of trust is to provide for the minor child’s special needs, leaving Medi-Cal or other governmental programs to provide for the minor child’s medical and day-to-day needs. Without a special needs restriction upon the settlement funds, the minor child may lose eligibility for public assistance or, with this same thought, government agencies may assert a reimbursement right against settlement proceeds.

     A “Special Needs Trust” may be established by the court only if it determines all of the following to be true:

    The minor child has a disability that substantially impairs the child’s ability to provide for his or her own care or custody and constitutes a substantial handicap.

    The minor child is likely to have special needs that will not be met without the trust in place.

    The amount to be paid directly to the trust does not exceed the amount reasonably necessary to meet the minor child’s special needs.

    Payment of all statutory medical liens in favor of certain state and local California agencies that have rendered medical assistance to the injured minor child is a prerequisite to creation of this special type of trust. The trust is subject to continued court supervision, and it may be terminated upon proof by such an agency that the trust is not being used for the child’s special needs. A good child injury lawyer will know, in cases where a child’s injuries are severe and resources are limited, to look for the possible need of future public assistance. In fact, if a special needs trust is warranted for a particular child, it is best to establish one as soon as possible in order to maximize benefits to the child and minimize government medical liens.

    Legal Research for the Above FAQ: 145 See L.A. Sup. Ct. Rules 10.186, 10.186.2. 146 Cal. Probate Code Section 3602 (d). 147See Hamilton v. Laine (1997) 57 CA4th 885, 887-890, 67 CR2d 407, 408-409. Justice for the Injured Child book available through this website.
     

    Mark C. Blane is a San Diego Child Injury/Accident Attorney and the managing lawyer of the Law Offices of Mark C. Blane, a San Diego, California Personal Injury Law Office dedicated to representing families of minor children injured due to the negligence of others. If you or a loved one, who is a minor child, has been injured or killed in a child accident in San Diego, 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 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 accident. Also, you can check out Mr. Blane's book on California child injuries called Justice for the Injured Child available for sale; this book has become a California parent's legal survival guide to their child's California accident case.

     

     

  • CALIFORNIA INJURED OR INCOMPETENT CHILD RESOURCES: What are some additional resources parents can look to for an injured or incompetent child due to an accident (or not due to an accident) in California?

    Federal Assistance Programs

    Many of the federal programs available to people with disabilities are partially or totally based on the assets owned by or available to the individual. The majority of programs offered are generated through or in conjunction with funding available under the Social Security Act. There are four basic disability-rated benefit programs:

    Social Security Retirement Benefits (SSA): Social Security Retirement Benefits and Supplemental Security Income (SSI) are two programs that provide income assistance. SSA provides income to workers who have made the requisite contributions to the system through payment of FICA taxes;

    Supplemental Security Income (SSI): SSI may provide a guaranteed minimum income for a disabled person who has not made adequate contributions to a personal Social Security account. Eligibility for SSI is based on disability requirements and financial need. A child under the age of eighteen can qualify for SSI benefits if the child meets Social Security’s definition of disability for children, and if the child’s income and resources fall within the eligibility limits. But the income of other people in the child’s household are also considered when determining the child’s financial need. The amount of the SSI payment is different from one state to another because some states supplement the SSI payment. The eligibility criteria for children may be tough to meet based on Social Security’s stringent financial requirements and that definition of disability. I highly recommend you contact an attorney that specializes in California disability law for further consultations as to the benefits available;

    Medicare: Medical assistance is available under Medicare, but eligible participants must be eligible for SSA benefits. Medicare provides only listed hospital and doctors’ services;

    Medi-Cal: a federally funded program used to help families pay for medical care; it is a state-administered program through the California Department of Health Services. It has been serving families since 1966. Eligibility for Medi-Cal is based on SSI criteria for both disability and need. Visit the Medi-Cal Web site at http://www.dhcs.ca.gov/services/medi-cal/.

    Mark C. Blane is a San Diego Child Injury/Accident Attorney and the managing lawyer of the Law Offices of Mark C. Blane, a San Diego, California Personal Injury Law Office dedicated to representing families of minor children injured due to the negligence of others. If you or a loved one, who is a minor child, has been injured or killed in a child accident in San Diego, 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 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 accident. Also, you can check out Mr. Blane's book on California child injuries called Justice for the Injured Child available for sale; this book has become a California parent's legal survival guide to their child's California accident case.

  • CALIFORNIA INJURED OR INCOMPETENT CHILD RESOURCES: What are some additional resources parents can look to for an injured or incompetent child due to an accident (or not due to an accident) in California?

    Federal Assistance Programs

    Many of the federal programs available to people with disabilities are partially or totally based on the assets owned by or available to the individual. The majority of programs offered are generated through or in conjunction with funding available under the Social Security Act. There are four basic disability-rated benefit programs:

    Social Security Retirement Benefits (SSA): Social Security Retirement Benefits and Supplemental Security Income (SSI) are two programs that provide income assistance. SSA provides income to workers who have made the requisite contributions to the system through payment of FICA taxes;

    Supplemental Security Income (SSI): SSI may provide a guaranteed minimum income for a disabled person who has not made adequate contributions to a personal Social Security account. Eligibility for SSI is based on disability requirements and financial need. A child under the age of eighteen can qualify for SSI benefits if the child meets Social Security’s definition of disability for children, and if the child’s income and resources fall within the eligibility limits. But the income of other people in the child’s household are also considered when determining the child’s financial need. The amount of the SSI payment is different from one state to another because some states supplement the SSI payment. The eligibility criteria for children may be tough to meet based on Social Security’s stringent financial requirements and that definition of disability. I highly recommend you contact an attorney that specializes in California disability law for further consultations as to the benefits available;

    Medicare: Medical assistance is available under Medicare, but eligible participants must be eligible for SSA benefits. Medicare provides only listed hospital and doctors’ services;

    Medi-Cal: a federally funded program used to help families pay for medical care; it is a state-administered program through the California Department of Health Services. It has been serving families since 1966. Eligibility for Medi-Cal is based on SSI criteria for both disability and need. Visit the Medi-Cal Web site at http://www.dhcs.ca.gov/services/medi-cal/.

    Mark C. Blane is a San Diego Child Injury/Accident Attorney and the managing lawyer of the Law Offices of Mark C. Blane, a San Diego, California Personal Injury Law Office dedicated to representing families of minor children injured due to the negligence of others. If you or a loved one, who is a minor child, has been injured or killed in a child accident in San Diego, 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 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 accident. Also, you can check out Mr. Blane's book on California child injuries called Justice for the Injured Child available for sale; this book has become a California parent's legal survival guide to their child's California accident case.

  • CALIFORNIA COURT APPROVAL PROCESS FOR AN INJURED CHILD SETTLEMENT: Does the Superior Court of California contain power to reduce medical liens for a injured child's bodily injury settlement? If not, who does?

    Medical Bills (Government and Private)

    As we have seen in articles and blog postings on this website, the power of the court to approve a minor child’s settlement is mandatory and final to legally enforce the settlement of a minor child injury case, but the power of the court to reduce medical bills is quite limited. The court may determine what should be paid out of the minor child’s settlement, but if it is a private medical bill, and a dispute arises between the medical provider and the child’s parents, or guardian ad litem, then those disputes should be resolved under a separate lawsuit; this also includes attorney fee disputes, which should be resolved by a fee arbitration.

    However, with government medical bills, there are special California statutory protections in place. For example, a California county may have a medical lien for the reasonable value of medical care furnished to an injured person or an injured child. At the same time, a California state department or county agency that furnished or supplied medical treatment services under the California Services Program has a subrogation right (legal interest) against any settlement relating to the medical condition for which the medical services were (or will be) supplied. Most of the relevant California statutes researched all specify that the county or other state agency are legally entitled to full reimbursement on their medical liens. Thus, the California Probate Code Section 3601 which gives court power or authority to determine the reasonable medical expenses to paid out of a minor child's settlement does not give the court power to actually reduce said medical liens.  Instead, your child's injury attorney has greater power to reduce the medical liens!  You can call me directly for more information on this interesting question at (619) 813-7955.

    Legal Research for this FAQ:  129 Cal. Gov. Code Section 23004.1. 130 Cal. Health & Safety Code Section 123982. Justice for the Injured Child minor child’s settlement does not give the court power to actually reduce said medical liens.

     

  • SAN DIEGO COUNTY CHILD INJURY CASE - KID LITIGATION PROCESS: What If a Lawsuit Was Filed before a Settlement Offer Was Made on the Childs Injury Case?

    At times, I have had to file a lawsuit in order for my child client to obtain fair compensation in the form of a settlement. One example was just prior to the actual jury trial date in one case in which I was representing an eight-year-old girl for bodily injuries, and I was in a “settlement conference” with the judge, the defense attorney, and the guardian ad litem (a parent). We were able to secure a fair and just settlement offer from the defense attorney, and the judge immediately approved the settlement value of my child’s injury case. The only thing I had to do was formally file the petition for approval (even though the judge approved the settlement amount [value] on the record), which the judge then approved. Remember, the petition contains all the details of costs, attorney’s fees, medical bills, and reductions to medical bills. All of that still has to be approved, even though the settlement value was agreed to on the court record after a lawsuit was filed. Thus, under California law, there is no final settlement without court approval. Technically, absent court approval, the settlement is voidable by the guardian ad litem (or conservator) prior to approval.

     

  • CALIFORNIA CHILD INJURY SETTLEMENT | COURT APPROVAL PROCES: What if the Guardian Ad Litem disagrees with the injured child's settlement offer on his or her bodily injury claim?

    If the guardian ad litem repudiates or disagrees with a given settlement offer, the California courts have limited power to enforce the settlement of the minor child’s settlement offer. This is true even if the opposing party (insurance company) is requesting resolution in light of the objections of the guardian ad litem. Personally, I have never experienced this happening as the offers I have been able to obtain in past years have been just and fair, and all of my guardian ad litems, along with the judges, have agreed. However, under these rare circumstances, such a resolution requires that the court must find that the guardian ad litem’s objection or repudiation of the settlement offer was “arbitrary and capricious,” and “contrary to the child’s best interest.” Thus, any dispute beyond a guardian ad litem’s objecting to the child’s settlement must be resolved by a separate lawsuit—for example, as when a fee dispute arises between the child’s parents and a chiropractor over his or her bill for treatment of a child’s injuries. The court has limited power of this dispute, since California law holds that a court can only help determine what amount should be paid to any expense, medical bills included, from the settlement.

    Legal Research for FAQ:  131 Tapia v. Pohlmann (1998) 68 CA4th 1126, 1130-1134, 81 CR2d 1, 3-6, but also seeMares v. Baughman (2001) 92 CA4th 672, 676-679, 112 CR2d 264, 268-269— Cal. Gov. Code Section 23004.1 authorizes medical lien on judgment and not settlement.

  • CALIFORNIA CHILD INJURY WORKERS COMPENSATION: If I, as a parent, have a workers' compensation injury, how could that affect my child?

    This is a very thought provoking question!  An interesting case developed in California regarding whether an injured child is barred by the “workers compensation exclusive remedy rule.” In the case, a child’s in utero injury suffered by virtue of the mother’s employment during pregnancy is compensable to the injured child against the mother’s employer apart and separate from workers compensation. Though a fetus’s injury must by necessity come via, or from, the mother (inside her body), it does not depend upon injury to the mother (for example a mother ingesting a toxin that may cause small harm to the mother but permanent injury to fetus). For this reason, the workers compensation exclusive remedy rule does not apply to the now injured child, and the child has a remedy at law directly against the employer.

    This is an issue you can discuss with your California child accident lawyer too.  If you have additional questions or concerns, you can call me directly at (619) 813-7955.

     

    Legal Research for this FAQ: 78 See Turpin v. Sortini (1982) 31 C3d 220, 235-237, 182 CR 337, 346-347; Johnson v. Super. Ct. (California Cryobank, Inc.) (2002) 101 CA4th 869, 887, 124 CR2d 650, 664. 79 Fein v. Permanente Medical Group (1985) 38 C3d 137, 211 CR 368; and see MICRA.
     

     

     

  • SAN DIEGO KID INJURY UNINSURED MOTORIST: What if my child is injured in a car accident, and the at-fault party has no insurance to pay for my child's medical bills, and pain and suffering for bodily injury? What do I need to know about uninsured motorist coverage on those facts in relation to my minor child?

    California Uninsured Motorist Settlement

    Sometimes an injured child is injured in a car accident where the at-fault party has no automobile insurance, and the child’s attorney is able to go under the uninsured motorist benefits that insured the car the minor child was occupying at the time of the accident. Sometimes a settlement is not forthcoming with the uninsured motorist insurance company (the insurance company that insured the vehicle not at fault for the accident), and an arbitration has to be filed against the insurance company. Under California law, you must file for arbitration in these circumstances (jury trials are not allowed in an uninsured motorist [UM] arbitration). Thus, the value of the minor’s injury claim is judged by an arbitrator (judge) who awards a value to the minor’s injury case known as a UM arbitration award. This UM arbitration award is the “compromise” (settlement) of the child’s injury case and still needs court approval.

    INTERESTING POINT: As we have been discussing, a California court holds power to disapprove a minor’s bodily injury settlement based on fairness that is in harmony with the evidence of the injury, damages, and liability; on a UM arbitration award to a minor, it cannot decline approval of that award on those same reasons.96 It has to be for other reasons such as fraud, or the like.

    Legal Research for this FAQ: 94 Standard California Codes, Probate Code Section 3611(d), Methods of Disposition of Funds, Chapter 4, Article 2, 172. 95 Standard California Codes, Probate Code Section 3401, Delivery of Minor’s Money to Parent—Total Estate Less Than $5,000, Chapter 2, Article 1, 167.