Medical Malpractice Claims Against Kaiser – Stress Fracture Diagnosis

knee stress fracture diagnosisStress fracture is a condition that’s most often caused by repeated stress applied on the bone by running and jumping and similar activities. Knees and shins appear to be more susceptible to stress fractures because of their significant mechanical involvement and the pressure on those parts of the body when running and jumping. The problem is that a stress fracture often does not show on an x-ray image or even MRI scan.

In one of the medical malpractice cases our office recently handled, a client reported to his primary physician at Kaiser with sharp knee pain complaint. Our client did not remember hitting his knee or being injured in any way that would impact his knee. Without further evaluating him and without referring him to an orthopedic surgeon, the Kaiser doctor told our client to continue using his knee as usual, to continue working out and lifting weight like he has been normally doing and not worry about anything.

About a month later, our client’s knee and hip have virtually collapsed, rendering him incapable of walking for months and being forced to use crutches. The orthopedic specialist who evaluated him shortly after the collapse pretty much admitted that the primary physician screwed up by assuming that there was nothing wrong and not referring the patient for further evaluation.

Although this speculative to an extent, there is a perverse incentive for Kaiser doctors to under-treat their patients. Since these doctors are salaried, they are not interested in doing more work, more tests or more surgeries, and they certainly don’t have a financial interest in performing these often procedures as soon as possible. This delay in evaluation, treatment and surgical intervention leads to such horrible injuries and resulting malpractice claims as described above.

If you fee strong pain in your knee or shin, you must absolutely exercising and get evaluated by an orthopedic specialist as soon as possible in order to find out whether you have suffered a stress fracture, and if so – how you can avoid further bone damage and health faster.

When is Employer Liable for Employee Injury in California

employer's liability for personal injuries in CaliforniaGenerally, an employer is liable for the injuries caused by its employee to others committed within the scope of that employee’s employment under the doctrine of “respondeat superior“. The burden of proof is on the injured plaintiff  to demonstrate that the negligent act resulting in injury was committed within the scope of employment. Ducey v. Argo Sales Co. (1979). 

Many courts employ a two-part test to determine whether an employee’s conduct was within the scope of his employment for purposes of finding liability against the employer, asking whether (1) the act performed, such as driving, was either required or incidental to that employee’s duties, or (2) the employee’s misconduct could be reasonable foreseen by the employer in any event. If the employee’s actions fall within either prong, the employer is liable for the injury caused.

The most common obvious case, where the employer is liable, is where the employee for that employer causes an injury while performing his duties, such as truck driver hitting another driver, or a forklift operator at a warehouse store, hitting a customer with the vehicle.  An injury that occurs while the employee significantly deviates from his duties will likely not be attributable to the employer. For example, when the employee leaves the employer’s premises on a lunch break, to get lunch or run a personal errand, and the employee is not engaged in any errand or task for the employer, the employee is not acting within the scope of his employment. Cain v Marquez (1939).

Under the “going and coming” rule an employee going and coming from work is usually considered outside of his scope of employment, so that the employer is not liable for the injuries caused by that employee during that commute time. There are generally two major exceptions to this rule:

One exception is where the employer requires an employee to use his personal vehicle to get to work or where the employer provides a vehicle and requires that employee to use the vehicle for commuting from home to work. Henderson v Adia Services (1986). 

The other exception is whether the employer incidentally benefits from that employee’s commute to or from work. A classic example of this is where the employer asks the employee to do something for the employer on their way to work or on their way from work home.

Your UM/UIM Insurance Policy Covers Passengers

Few drivers know that their Uninsured / Underinsured Motorist Coverage in their car insurance policy also covers them for injuries suffered in other vehicles. In one of the cases we recently handled, our client was a passenger in a vehicle that was hit by a van. That van had a small policy of $15,000 per person or $30,000 per accident that had to be divided between our client and the driver of the vehicle where our client was a passenger. However, our the coverage of client’s own uninsured motorist policy on his personal vehicle was triggered and he was able to receive more compensation in that claim, to supplement the compensation that he had already received from the insurance carrier of the party at fault.

Most UM/UIM insurance policies cover losses suffered by the insured in a vehicle other than the one who is specifically covered by his policy. This is the kind if information the insurance carrier won’t likely volunteer, so being aware of this can be quite important in recovering compensation in cases where the party at fault is either uninsured, or underinsured or in hit-and-run accidents.

Jury Awards over $76,000 in an Accident Injury Case in Orange County

On May 28, 2013, the Orange County jury awarded $76,984.00 to a claimant who was struck by another driver who cut across two lanes of traffic, and swerving into the Plaintiff’s vehicle. The accident happened in September 2009, so this claim has been going on for well over three years.

In that case, the defendant (through the insurance company’s attorneys of course) argued that he was not negligent because of “sudden emergency” created by a third car, and that the defendant would have been hit if she didn’t swerve. The defendant also contested the nature and extent of injury, as they almost always do.

This verdict may not be very high, but considering the two other difficulties in the case, it’s nothing short of impressive. First, Plaintiff’s medical records suggested that his inability to work was due to workplace issues and not due to the injuries suffered in an accident. Secondly, the police report was also not completely favorable to Plaintiff, noting that Plaintiff also took evasive action at the time of the accident which may have contributed to the accident.

Interestingly, the Plaintiff’s final demand before the trial was $250,000. The Defendant’s final settlement offer before trial was $15,000.00.

What Makes San Francisco More Dangerous for both the Drivers and the Pedestrians

San Francisco is in many ways a unique city. It has a unique climate, location, layout and unique beauty. It also has a unique set of social factors that make it a more dangerous place to drive and walk in and a more likely place to be involved in an injury accident than many, if not most, other major cities around the US. There are several objective factors that make San Francisco’s road more dangerous:

Tourists drivers and pedestrians. There are plenty of people on San Francisco’s roads that don’t know where they are going, especially during the summer and fall months of the tourists season. These people are naturally likely to make sudden stops and turns.  Pedestrians from out of town might not be aware of how quickly some of the drivers take turns and how important it is to look out of the cars that turn into the crosswalk. They sometimes walk way too slowly, being too confident in the drivers’ ability to see them and be as careful as they should.

Poorly maintained road signs. While a lot of effort has been invested into improving and renewing the road signs in the city, there is still a lot of space for improvement. Some of the most common issues are “worn out” double yellow lines, not so obvious one way signs that make people drive in the wrong direction, and stop signs that “hide” behind the short bush-alike trees. For someone who is well familiar with where he/she drives, it might not be a big issue, but for tourists and out-of-towners in general, it presents a particular risk of driving the wrong way and skipping stop signs.

Drivers who are looking for parking. If you are driving on a typical   street of mixed use (commercial and residential), chances are that the driver in front of you is going around looking for parking. That’s the driver that’s like to get excited and suddenly stop in the middle of the road if they see a possible parking spot. That’s also the same drivers that may make a u-turn unexpectedly to take the parking spot on the other side of the road.

Stressed out “professionalswho are always in a hurry. These are the aggressive drivers who tailgate, who pass every car they can and who hunk at a car in front of them a fraction of a second after the light turns green.

Imagine a combination of two or more of the above factors, such as an aggressive “professional” driver behind a tourist driver or a pedestrian from out of town, and you have a recipe for a rear-ender, caused by simple human impatience.

Causing an Accident Due to Texting is Likely to be a Crime

texting while driving and accident is a crime in CaliforniaThe law against texting while driving went into effect in California on January 1, 2009. However, few drivers are aware that when you cause an accident due to texting or a similar distraction caused by a cellphone use while driving, that accident will likely be considered a crime. If the accident is a fatality it will be considered an involuntary manslaughter, and chances are very high that the driver at fault will be imprisonment for nearly two years or more. This is yet another reason why texting while driving is not a good idea, especially on those roads where you are likely to have “surprise” – i.e. pedestrians popping up on the street unexpectedly, cars switching lanes often and stop and go traffic. Driving might be the time when calling the other person while using your headset, rather than texting, is a much better idea.

As I drive around San Francisco, I see that the drivers routinely violate the law against texting while driving. It’s unfortunate that most of those drivers learn how dangerous is the hard way – when they rear-end another vehicle, run over a pedestrian or a bicyclist or even go off the road, when traveling on a curvy highway.