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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  • 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 "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.