Hospital Lien Act Gives Health Care Providers Legal Recourse

Written By Chris Dolan and Nancy Avila Villatoro

This week’s question comes from Anonymous who asks: Are my medical providers entitled to a portion of my settlement? 

Dear Anonymous,

Great question. Let’s create an example where you are in your car stopped at a red light, and the driver behind you is distracted, does not press the brakes in time, and rear-ends your car. You are injured and require medical treatment. The ambulance arrives and transports you to the nearest emergency room. You have health insurance that will cover your treatment. Are the hospital and the medical providers that provided you treatment entitled to seek payment from you for the treatment you received, even though you have health insurance? 

It depends. 

Statutes provide that a hospital treating an injured person shall have a lien on the claim or recovery of the patient against the tortfeasor causing the injury or on any claim or recovery arising from the injury. Courts must determine the conflicting interests of hospitals, injured patients, attorneys, insurers, and sometimes the public in proceeds that often may be insufficient to satisfy all parties. 

In California, if you pursue a personal injury claim, the law states that hospitals can recoup the cost of care provided by asserting a lien on your personal injury action. According to the California Legislature, a hospital may assert a lien for any “emergency and ongoing medical care” under the Hospital Lien Act for reasonable and customary charges. (Cal. Civ. Code, § 3045.1.) Therefore, a hospital may be entitled to recover for all the care provided to you. (Newton v. Clemons (2003) 110 Cal.App.4th 1.)

The Hospital Lien Act “compensates a hospital for providing medical services to an injured person by giving the hospital a direct right to a certain percentage of specific property, i.e., a judgment, compromise, or settlement, otherwise accruing to that person.” Newton v. Clemons, (2003) 110 Cal. App. 4th 1, 14.

Civil Code section 3045.4 establishes the “certain percentage” of the judgment or settlement amounts to which the lien applies: “Any person, firm, or corporation, including, but not limited to, an insurance carrier, making any payment to the injured person.., for the injuries he or she sustained, after the receipt of the notice [of the hospital lien], without paying to the [hospital] the amount of its lien claimed in the notice, or so much thereof as can be satisfied out of 50 percent of the moneys due under any final judgment, compromise, or settlement agreement after paying any prior liens shall be liable to the … [hospital] for the amount of its lien claimed in the notice which the hospital was entitled to receive as payment for the medical care and services rendered to the injured person.” 

How does this affect your personal injury recovery?

When medical liens (or rights of subrogation) are asserted, it may substantially reduce the net value of your potential personal injury claim.  In some cases, liens, including medical liens, may take legal action that is economically impractical.

Whether you decide to hire an attorney or proceed with your personal injury claim, it is important to evaluate the charges the hospital asserts. Depending on the extent of your injuries and medical bills, you may need an expert in medical billing. They determine whether the charges were related and necessary to treat the injuries. Second, you may be able to challenge the reasonableness of the bills and utilize any arguments made by the at-fault party that the charges were excessive. Additionally, you may be able to challenge the hospital to provide customary payments made by health insurance carriers for the same or similar services. 

It is important to note that under the Hospital Lien Act, the lien does not apply to first-party claims like underinsured motorist benefits. (Weston Reid, LLC v. American Insurance Grp., Inc. (2009) 174 Cal.App.4th 940.) Underinsured motorist benefits is insurance coverage you purchase that protects you if you are involved in an incident where the at-fault person carries liability limits that are too low to cover the medical expenses of any injured person. 

While the basic concept of a medical lien may be simple enough to some, several circumstances can complicate matters. Is the lien for the amount the medical care provider would charge an individual or the amount it would charge an insurance company? Exactly to which proceeds does the lien attach? What if all or part of the bill is payable from another source, such as workers’ compensation or Medicare? Are there other state or federal statutes that will allow your medical providers or health insurance carriers a right to recovery?

Ultimately, a defendant or an at-fault party will not settle a third-party claim without putting the hospital on the check or writing a separate check to satisfy the lien. Therefore, it is crucial to obtain legal representation to understand the complexities of medical liens. Your attorney can engage the hospital early on to maximize your recovery by limiting the amount of the lien as much as possible and allowing for a quick and efficient settlement of your claim. 

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$16.7 Million Verdict in Castro-Gonzalez v. Cazarez 

San Diego jury finds Felipa Cazarez (defendant) responsible for the injuries caused by her actions to our client Mr. Martin Castro-Gonzalez and awards $16,702,050.00. 

On September 28, 2019, Felipa Cazarez, defendant, crashed her vehicle into a pickup truck parked in a residential driveway. At the time of the collision, sixty-one-year-old Martin Castro-Gonzalez was leaning on the truck. Mr. Gonzalez was thrown to the ground, causing spinal injuries resulting in paraplegia. Mr. Gonzalez alleged Ms. Cazarez was driving under the influence of alcohol and caused his injuries. On December 5, 2022, trial began in San Diego County Superior Court. 

On December 9, 2022, the jury returned a verdict in the amount of $16,702,050.00 in favor of Mr. Gonzalez, including a finding of punitive damages against Felipa Cazarez. After the verdict, a smiling, teary-eyed Mr. Gonzalez stated,

“I’ll never get my life back, but at least I know I’m worth something.”

Further information may be obtained by contacting Chris Dolan at 415-279-2604 or chris@dolanlawfirm.com

 

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CARE Act to Provide Help To Underserved Populations

Written By Chris Dolan and Kimberly Levy

This week’s question comes from Shelly D. from San Francisco, who writes: I have lived in San Francisco all my life. I have noticed more and more people in our community are in crisis on the streets. Often with mental or substance use disorder, they are left to fend for themselves without food, warm clothing, or adequate medical care. What can California do to help our fellow Californians in need?

Dear Shelly,

Great question. A novel plan to address these issues is in the works. Earlier this year, the California State Legislature enacted SB 1338, the Community Assistance, Recovery, and Empowerment Act (CARE Act) signed into law by Governor Newsom in September 2022. The law created CARE Court, a new court-based framework established to provide care and support for Californians with untreated mental health and substance use disorders. Those disorders often lead to homelessness, incarceration, or even death without proper care and support. CARE Courts intend to provide court-ordered, community-based services for those underserved populations without infringing on people’s rights.  

What services will be provided by CARE Court?

CARE provides “trauma-informed” “clinically appropriate, community-based … services and supports that are culturally and linguistically competent.”  This support includes counseling, stabilizing medication, social services, housing assistance, and counsel for all court appearances for a diverse population with diverse needs.

Who will be eligible for CARE?

CARE focuses on assisting people with those with severe mental disorder or substance use disorder. There are strict requirements to qualify for the program.  The following criteria must be met:

  1. person must be at least 18 years of age;
  2. person must be currently experiencing severe mental illness or diagnosis of substance use disorder;
  3. person must be unstable in ongoing voluntary treatment;
  4. person either is unlikely to survive in the community without supervision and the person’s condition is substantially OR requires supports to prevent relapse or deterioration of their condition likely to result in serious harm;
  5. the CARE program would be the least restrictive method to ensure person’s recovery/stability; and
  6. it is likely the person will benefit from participation in the CARE program.

How will CARE Court work?

A referral to CARE Court starts with an individual seeking treatment or their representative filing a petition under penalty of perjury. The petition for CARE Court services will present facts demonstrating the petitioner meets the criteria for participation. The Court will review the petition, and if it appears to meet the criteria, the county will investigate and provide a report on whether CARE services are appropriate.  

The Court will dismiss the case if an individual voluntarily agrees to services. A CARE agreement will be entered into with Court follow-up. The Court will hold a hearing if the individual does not voluntarily agree to services but meets the CARE criteria. They will appoint an attorney for those who do not voluntarily agree to participate in CARE services. The Court will determine whether a CARE plan is appropriate or whether they should dismiss the case. If the Court imposes a CARE plan, they may order services and supports such as treatment, medication, housing assistance, counseling, etc.  

To remain accountable, the Court, CARE participant, counsel, and behavioral health professionals will have status hearings every 60 days for one year. After one year, a participant will be able to graduate or continue services for another year based on need.

What if CARE Court participants fail to comply with their plan?

A non-compliant participant will be subject to additional court hearings, which may result in termination from the proceedings. Still, the individual will remain eligible for some of their ordered services. The Court may also use its power to ensure an individual’s safety in the program.

What if the government does not provide the ordered services and supports?

Suppose the Court finds that a local government entity substantially failed to comply with the Court’s order for services or support. In that case, the presiding judge may issue an order imposing a fine of $1,000 per day that the government fails to comply, not to exceed $25,000. Fines will be collected into a CARE fund to pay back into the program.

When will CARE be implemented?

Pilot program CARE Courts will be established in seven counties in California by October 1, 2023. Pilot counties include San Francisco, San Diego, Orange, Riverside, Stanislaus, Tuolumne, and Glenn. The remaining 51 California counties must implement CARE Courts by December 2024.

The CARE program requires creating significant new infrastructure, and it presents a glimmer of hope that those in need of assistance will have meaningful access to supports and services. That meaningful access can put their lives on a safer, healthier trajectory.

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Concealed Weapons Permit, CCW, Debate Continues In California

Written By Chris Dolan and Matthew Gramly

This week’s question comes from Anonymous, who asks: What happened to the recent concealed carry permit legislation that was pending regarding carrying a concealed handgun?

Dear Anonymous,

Thank you for your question. As many of us know, California has some of the strictest gun control laws in the nation. That is coming to an end, given a recent U.S. Supreme Court ruling. In June of 2022 the Court issued a ruling that effectively makes California’s current law regarding who may or may not obtain a concealed weapons permit, or CCW, unconstitutional.

The Second Amendment in the Bill of Rights to the Constitution is a single sentence, reading,

“A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” 

Twenty-seven words, three commas, shouldn’t be hard to understand. But the true meaning of the Amendment has been hotly debated and litigated for decades.  

In 2008, in an opinion authored by Justice Antonin Scalia in the case of District of Columbia v. Heller, the Court, for the first time in over 200 years, recognized a Constitutional right of a private individual to own a firearm for traditionally lawful purposes, primarily self-defense within one’s home. Justice Scalia’s opinion was the first time the Court had ever recognized the right of an individual to own a firearm unconnected to whether or not that individual served in a militia.  

This past June, a newly conservative Court issued a 6-3 opinion in the case of New York State Rifle & Pistol Association, Inc. v. Bruen wherein the Court took the Heller decision a step further, holding that private individuals have a Constitutional right to carry a handgun for self-defense outside their home.  

Why does that matter to California? In the Bruen case, New York had a “may issue” handgun permit statute, as opposed to a “shall issue” statute. Essentially, the New York statutory scheme required that an individual requesting a CCW permit demonstrate some special need above and beyond garden variety self-defense, a heightened showing of “good cause,” to get approved for a concealed carry permit. The authority to grant or deny such permit requests was typically granted to the local county Sheriff, who “may” issue a permit, or not, depending on that Sheriff’s determination of whether or not you have shown enough “good cause” to qualify for one. These kinds of statutes, some have argued, leave the right to exercise one’s Constitutional rights up to your local Sheriff and what your local Sheriff thinks of you, which hardly seems fair. California has a similar “may issue” CCW statutory setup.  For example, the County of San Francisco has issued less than 15 CCW permits in the last decade, while rural counties grant exponentially more CCW permits despite being more sparsely populated. 

The Court found the requirement of demonstrating a particular need to be an improper barrier to exercising one’s Second Amendment Rights. It determined New York’s statute to be unconstitutional, effectively determining California’s law to be unconstitutional as well.

Almost immediately State Attorney General Rob Bonta authored a replacement bill that would meet the requirements of the Supreme Court while still aiming to protect Californians from gun violence.  

The Court’s ruling in the Bruen case permitted counties and states to recognize certain sensitive gun-free zones, such as churches or schools. California’s legislators sought to exploit that loophole. They designated hospitals, schools, medical facilities of any kind, libraries, and government buildings. in creating such an expansive list of these gun free zones that effectively made it so that the only place one would be legally permitted to carry a handgun in California would be in the middle of nowhere—a thousand feet from any other person or structure. The bill failed to pass the Assembly by a single vote.

While maybe keeping with the specific language of the Bruen decision, certainly violated the spirit of the decision in such a manner that there is no possibility that it would have survived court challenges. Legislators overreached to such a degree they would have come close to effectively making the entire state a gun free zone had this bill passed. Now they must go back to the drawing board and start over, all while California’s current CCW remains unconstitutional and local authorities are unsure how to proceed.

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Minors Involved In An Accident: Who Is Responsible?

Written By: Christopher Dolan and Jeremy Jessup

This week’s question comes from anonymous from San Carlos who asks: I recently read about the heartbreaking story involving the couple from San Carlos who were killed in a motor vehicle collision in Redwood City. Based upon the news articles, the at fault driver may have been a 17-year-old kid, with friends in the car.  If the teenager is in fact at fault, can their parents be held accountable? What about the friends? 

You are absolutely correct; this was a tragic and heartbreaking event that did not have to happen. Those children should still have both of their parents. And the answer to your first question, is yes, the parents can be held liable for the acts of a 17-year-old. In California, the parent or legal guardian of a minor who is under the age of 18, must sign a driver’s license application for said minor to receive their license. As a result of signing that application, the parents or legal guardian are bound by Section 17707 of the vehicle code, which essentially spells out civil liability for that parent or guardian if the minor causes a collision.

That code sections says:

“Any civil liability of a minor arising out of his driving a motor vehicle…is hereby imposed upon the person who signed and verified the application of the minor for a license, and the person shall be jointly and severally liable with the minor for any damages proximately resulting from the negligent or wrongful act or omission of the minor in driving a motor vehicle.”

Thus, this code section makes a parent or legal guardian jointly liable for “any damages proximately resulting” from the accident. That includes compensation for non-economic losses like pain and suffering and those associated with a wrongful death matter. Given the severity of this collision, it could add up to a significant amount. 

With regards to the friends, this is a bit more complicated and depends on the facts. But the short answer is yes. A passenger can be held liable for a collision if they undertook very specific acts. One would be operating the vehicle as a passenger. This would include controlling the steering wheel, the brakes the gear shift or any other part of the vehicle that would affect the maneuvering of the vehicle. Another means in which a passenger could be held liable, is if they incapacitated and/or distracted the driver. This could occur by blocking their vision, bumping them, or distracting them by whatever means. Finally, a passenger may be held liable if they “encouraged” the driver. Encouragement can take many forms. Some classic examples include encouraging an intoxicated driver to drive and a semi-recent example would be a passenger encouraging the driver to drive faster.

In the case of Navarrete v. Meyer (2015) 237 Cal.App.4th 1276, Hayley Meyer was a passenger in a vehicle being driven by her friend, Brandon Coleman. While driving to their destination, she told Coleman to turn on Skyview Drive, a street she knew dips that could make a vehicle become airborne. She also knew the speed limit was 25-mph. According to the facts, Hayley told Coleman about the dips and that it would be fun to drive at a high rate of speed on them, and he should do it. Coleman turned onto Skyview Drive, and she told him to “go faster.” He did. Unfortunately, Coleman sped up, went airborne, lost control of the car, and crashed into a parked vehicle, killing a father of three.

The court was presented with the issue of whether or not Haley Meyer could be sued for negligence, even though she was not actually the driver of the car. The Court ruled that she could. 

If the teen driver is at fault and it can be argued that the two passengers, believed to be 15 years old, encouraged the teen to drive fast, they too could be held accountable. The next logical question is, could their parents?

This one is more complicated for a couple of reasons. First, if the passengers were in fact 15-years old or did not possess a driver’s license/learners permit, then we have no parent or legal guardian signing off on their license. In addition, section 17707 specifically hinges liability on the parent/guardian for “civil liability of a minor arising out of his driving a motor vehicle”. In this case, the passengers were not “driving” the vehicle. 

However, this type of liability may be covered by California Civil Code section 1714.1, which states:

“Any act of willful misconduct of a minor that results in injury or death to another person, or in any injury to the property of another, shall be imputed to the parent or guardian having custody and control of the minor for all purposes of civil damages.”

However, the statute puts a few limitations on the amount the parent or legal guardian can be liable for, which is $25,000.00 (this amount is subject to cost-of-living adjustments every two years. The most recent figure appears to be $47,100.00). In addition, it does not allow compensation for pain and suffering, only economic damages, such as medical expenses.

Regardless of who may be held liable, as we head into the holiday season, it is a good time to remind all of your loved ones to drive attentively and carefully so that we might decrease the number of tragic roadway collisions and not have to worry about questions such as these.  

 

 

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Do I Need a License To Ride An Electric Bicycle?

Written By Chris Dolan

This week’s question comes from Jared from San Francisco: E-bikes are taking over the streets. I see more and more every day. Do you need to get a special license to ride one, like a motorcycle? And do you need insurance to ride one? 

Thank you for the questions about e-bikes, Jared.

Electric bicycles have become a common form of transportation in the San Francisco Bay Area. It is valuable to know what e-bikes are and what the law is regarding the use of e-bikes.  

An electric bike (e-bike) is a bicycle with an electric motor that assists the propulsion of the bike instead of being propelled solely by the pedaling of its rider as with a traditional bicycle. There are a variety of e-bikes that differ in operation and power of the motor. In California, e-bikes’ motor must be less than 750 watts. If the motor is over 750 watts it will qualify as a motor driven cycle and have requirements similar to a motorcycle. 

In 2015 AB-1096 was passed by the California legislature. This law sets forth three classifications (Class 1, 2 and 3) of e-bikes based upon their maximum speed, propulsion assistance by the motor, and method of operation. 

  • Class 1: A class 1 e-bike is a low-speed pedal-assisted electric bicycle. Class 1 e-bikes are equipped with a motor that provides assistance only when the rider is pedaling, and that ceases to provide assistance when the bicycle reaches the speed of 20 miles per hour.
  • Class 2: A class 2 e-bike is a low-speed throttle-assisted electric bicycle. Class 2 e-bikes are equipped with a motor that may be used to propel the bicycle without pedaling, and that is not capable of providing assistance when the bicycle reaches the speed of 20 miles per hour.
  • Class 3: A class 3 e-bike is a speed pedal-assisted electric bicycle. Class 3 e-bikes are equipped with a motor that provides assistance only when the rider is pedaling, and that ceases to provide assistance when the bicycle reaches the speed of 28 miles per hour, and equipped with a speedometer. 

E-bike riders must follow the rules set forth in California vehicle code. Some general rules to remember are:

  • Pedestrians have the right of way. This includes pedestrians in and out of a crosswalk; bike riders are required to yield to pedestrians. 
  • Riders are required to stop behind crosswalks, leaving them clear for pedestrians. 
  • E-bike riders must stop at stop signs and obey traffic lights just like motor vehicles. 
  • Reflectors and a front white light are required by law at night time.
  • Class 3 e-bikes are prohibited from Class 1 multi-use bike paths such as hiking or recreational trails.
  • Class 3 e-bike riders must be over the age of 16 and wear a helmet.

California state law and vehicle code sets forth most of the rules regarding e-bikes, but local ordinances also impact how e-bikes can be used. In San Francisco it is illegal to ride on the sidewalk if you are over the age of 13. Also, in San Francisco riders must keep at least one ear open and free from any headphones or other devices that can cause distraction. You must leave one ear free to ensure you can hear your surroundings. 

When it comes to licensure and insurance, e-bikes are treated like bicycles rather than motorcycles. E-bike riders are not required to obtain any special licensure to operate them. As of 2017, all e-bikes in California are required to have a label that describes its type, top assisted speed, and motor wattage. This can be used to identify what class of e-bike is being operated. It is also unlawful to tamper with or alter an e-bike’s speed capabilities without replacing the label on the bike that specifies what the speed capabilities are.  

E-bikes are not treated as motorcycles in California and therefore liability insurance is not required. As we mentioned above, an e-bike motor is less than 750 watts, if a bike’s motor is over 750 watts the bike is classified as a motor driven cycle and will require insurance and licensure similar to a motorcycle.  

Some insurance company policies may cover injuries from accidents involving e-bikes. Base policies will generally not specifically cover accidents involving e-bikes but will cover personal injury accidents. This can leave some room to get financial compensation even if you or the other party doesn’t specifically have e-bike insurance. If you want to know the details of e-bike insurance available to you, you should contact your insurance agent or a skilled accident attorney to discuss what coverage is available under the circumstances.  

With a growing population of e-bike riders in the Bay Area it is important to stay vigilant and safe on the road. If you are ever in an accident with a bicycle, make sure your attorney knows the difference in e-bike classifications and what rights and responsibilities motorists and bicyclists have under California Law. Be safe out there, thank you for writing in with your questions.

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Freedom To Walk Act Ends Jaywalking, When It’s Safe To Cross

Written By Chris Dolan and Alexandra Cotroneo

 This week’s question comes from Betty from San Francisco, who asks: Can you explain what The Freedom To Walk Act is all about? Why is jaywalking safe and better for pedestrians? 

Hi Betty,

That is a great question, and I am sure many people are asking themselves the same thing.

This past September, Governor Gavin Newsom signed The Freedom to Walk Act, Assembly Bill 2147, sponsored by Assemblymember Phil Ting (D-San Francisco). This new law will go into effect on January 1, 2023. The Freedom to Walk Act allows pedestrians to jaywalk without the fear of ticketing. While jaywalking is still technically illegal, the Act precludes police officers from issuing tickets. Police can, however, ticket for jaywalking when it is unsafe, for instance, when there is an immediate risk of a collision with a vehicle. Hence, pedestrians must still exercise due care for their safety, and so must drivers for the safety of any pedestrians crossing a roadway.

The crime of jaywalking resulted from the automotive industry’s efforts to shift the public’s mindset on who owned the road: the automobile or the pedestrian. In the 1920s, roads were a communal space where pedestrians, carriages, vehicles, and vendors existed together. As cars became more popular and sales increased, so did pedestrian deaths. While memorializing killed pedestrians, communities blamed drivers and their automobiles. These deaths prompted a growing sentiment that vehicles should be restricted, including their speed limit. Automakers quickly changed the existing pedestrian laws while launching a media campaign to shame pedestrians who failed to use crosswalks. Thus, the term “jaywalking” came into existence. Jaywalking was a derogatory term used to reference someone from the country who was ignorant of city life. Ultimately, the public shaming campaign headed by the automobile industry succeeded: authorities criminalized jaywalking, and the onus shifted from the automobile to the pedestrian. Since then, police have not equitably enforced jaywalking laws. 

According to data collected from 2018-2020 by the California Racial and Identity Profiling Act, police disproportionately ticket Black pedestrians for jaywalking. Black pedestrians are four and a half times more likely to be stopped for jaywalking than White pedestrians. This inequitable enforcement has led to dangerous police interactions with pedestrians of color. Chinedu Okobi is one instance where the unfair and disproportionate enforcement of jaywalking resulted in tragedy. In 2018, police stopped Chinedu Okobi for jaywalking in San Mateo, California. The confrontation quickly escalated, and excessive force was used, resulting in the death of Chinedu Okobi, an unarmed black pedestrian.

With the passage of The Freedom to Walk Act, pedestrians will now have fair and equitable use of roadways. The Freedom to Walk Act will remove a pretense for over-policing pedestrians of color, eliminate the financial burden of fines and fees to those disproportionately ticketed for jaywalking, and grant rightful use of roadways to both pedestrians and motorists. 

Nonetheless, pedestrians and motorists must still use precautions and safely use the roads, even if police will no longer ticket pedestrians for jaywalking. However, you have the right to pursue pedestrian accident compensation as an injured pedestrian. Contact a personal injury lawyer who will advocate for your rights. 

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The PACT Act Expands Benefits For Veterans

Written By Chris Dolan and Megan Irish

This week’s question comes from Lino in San Francisco, who writes: I wondered, with Veterans Day last week, what is the government doing to protect those who’ve served these days. Is there anything new? I remember Joe Biden talking about making Veterans a priority, has he done so? How many veterans are there anyway?

Dear Lino,

Thanks for your question. Veteran’s Day was on Friday, November 11, this year. According to the US Census, there are approximately eighteen million veterans in the United States. President Biden has been working on Veterans benefits and has made several strides over his presidency by establishing presumptions for rare respiratory cancers, raising awareness of VA benefits related to military exposures, and increasing training for both VA and non-VA healthcare providers. Over nine million are enrolled in VA health care, under the care of some 370,000 medical professionals, in nearly 1300 health care facilities. The VA has also implemented a new network of specialized providers and a call center to improve care.

However, on August 10, 2022, President Biden signed a new law, the PACT ACT. The law expands health care and general benefits for veterans, and their surviving family members. The Act’s full name is Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics (PACT) Act.  It is the single most significant expansion in over thirty years to help veterans.

As we can all recognize, military services may expose our service members to substances that have increased adverse health risks for them. The White House has acknowledged risks like asthma, cancer, and other conditions that can take years to manifest. Therefore, it can be difficult for service members and veterans to establish the causal connection between the disabilities they suffer and their years in service to our country.  

This new act is named after Sergeant First Class Heath Robinson. He was a combat medic who passed away from a rare lung cancer after years of service. The PACT Act improves access to health care screenings and services related to potential toxic exposures. The Act also gives post-September 11 veterans more time to seek VA health care resources, from the previous rule of five years from their date of discharge from service to ten years from their discharge. There is also an open enrollment period for veterans who otherwise do not meet these criteria. This means more veterans can enroll in care without having to demonstrate a service-connected disability.  

This difference in VA process significantly changes how the VA makes its decisions on environmental exposure claims and increases veterans’ access to the care they need. This new Act also makes law the VA’s new process for reviewing exposure and service-related injury for chronic conditions. This law is important for individuals who have a hard time showing their specific health situation, but the overall picture of the aggregate injury is clear. There is also a requirement in the Act for the VA to have external input in their review process. This increased transparency should also speed up policy decisions on exposure concerns the VA has to evaluate.   

The speed with which veterans can access their benefits is improved. PACT decreases paperwork and exams needed by veterans for twenty-three specific conditions veterans may develop before the veterans can access health care and disability compensation. There are eleven respiratory conditions, and several forms on cancer on this list, including reproductive cancers, melanoma, pancreatic cancer, kidney cancer and some brain cancers. If a veteran passes away from one of these specified conditions, his/her survivors may also be eligible to make a claim for benefits.  

Under the requirements of PACT the VA will also be required to conduct new studies to evaluate the health trends of veterans who have served in Southwest Asia in the Gulf War, and 9/11 veterans. The studies will examine the impact of toxic exposures on these veterans. The VA will be convening a new interagency group to develop plans to further research toxic exposures.

There will be increased outreach and regular screening required, which may catch issues earlier, and improve treatment options and outcomes for the veterans. PACT will also enhance the education of those working for the VA so that they are better equipped to screen veterans for toxic exposure.     

Finally, PACT invests in the VA, by authorizing thirty-one major medical health clinics and research facilities in nineteen states.  

PACT will greatly improve access and benefits available to the Veterans in their time of need.  

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Are Bicycle Lights Legally Required?

Written By Chris Dolan

This week’s question comes from Luca from Mill Valley: I have simple question for you. Some riders have them some don’t. Are bike lights legally required in California?

Thank you, Luca, for the question.

The simple answer is yes, a bike light is required at nighttime. The law requires the light to meet certain requirements and requires the use of reflectors as well. Let’s start by discussing the lights and reflectors and then we will discuss what is required by California law. 

What is a Bicycle Light?

A bicycle light is typically a battery powered LED device that attaches to, or is built onto, a bicycle that helps the rider be noticed by traffic and others on the roads, paths, or trails. Bike lights also allow for greater visibility to the rider resulting in safer riding.

The front bicycle light is a white lamp, and the rear light is a red reflector or red light with a built-in reflector.

What is a Bike Reflector?

Bike reflectors are another important part of a bike that increases the visibility of bicyclists. A bike reflector is a safety device that is designed to redirect light that strikes it. When light strikes a reflector, it illuminates and emits the reflected light outward. 

While bike reflectors can be highly visible under the right circumstances, they are generally insufficient visibility aids for night riding. This is why California law requires the use of a bicycle light as well as reflectors. 

How Bright Does my Light Need to Be?

The front white light of a bicycle should be bright enough to be visible from at least 300 feet from the side and front of your bicycle. 

Light brightness is measured in lumens. Lights will be brighter and more visible to humans when its lumen rating is higher. Typical home light bulbs range from 300 to 1000 lumens. 

As a bicycle rider you want to use a light that lights up the area you are riding through and makes you visible to others hundreds of feet away. Most riders will be comfortable with a minimum lumen rating of 200. The optimal lumen rating for a front white bike light is 250-400 lumens to be sufficiently visible to others while also lighting your path forward. 

What is the Law in California for Bicycle Lights and Reflectors?

California Vehicle Code § 21201(d) sets forth the requirements for using lights and reflectors on bicycles. The law requires the use of lights and reflectors when a bicycle is operated during darkness. During the daytime, when the conditions are visible, a bicycle rider is not required to illuminate themselves with lights, although it is a safe practice to use a white front lamp and red reflector at all times when riding. 

During the darkness a bicycle must be equipped with the following:

  1. A front white light that is visible from a distance of 300 feet in front and from the sides of the bicycle.
  2. A rear red reflector or a solid or flashing red light with a built-in reflector that is visible from a distance of 500 feet to the rear.
  3. A white or yellow reflector on each pedal, shoe, or ankle visible from the front and rear of the bicycle from a distance of 200 feet.
  4. A white or yellow reflector on the front half of the bicycle (typically the front wheel); and a red or white reflector on each side of the back half of the bicycle (typically on the back wheel); or reflectorized front and back tires.

The biggest benefit of bicycle lights and reflectors is visibility. you want to be seen, so you don’t get hit by cars. Remember to practice safe biking habits and stay safe out there!  

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Taking Time Off to Vote is a Right in California

This week’s question comes from Laird in Oakland: I work in construction, and I am often at the worksite for 10-12 hours each day. I often don’t get off work until after 7 p.m. I am afraid that this will not give me time to vote on election day. I don’t feel comfortable mailing my ballot. I want my vote counted right there on election day. Can I use sick time to go to the polls on election day?

Dear Laird,
Thank you for this very important question which affects many workers. I completely understand that you would prefer to place your ballot in person rather than mailing it. I have good news. The law allows workers to take time off from their position in order to vote and doing so does not require the use of accrued sick leave. 

California Elections Code § 14000 provides employees with the right to take reasonable time off to vote, without loss of pay, if a voter does not have sufficient time outside of working hours to vote in a statewide election. Specifically, the Elections Code states that,

“the voter may, without loss of pay, take off enough working time that, when added to the voting time available outside of working hours, will enable the voter to vote. No more than two hours of the time taken off for voting shall be without loss of pay,” and that, “time off for voting shall be only at the beginning or end of the regular working shift, whichever allows the most free time for voting and the least time off from the regular working shift, unless otherwise mutually agreed.” Furthermore, if a worker knows, or believes, on the third working day prior to the election, that time off will be necessary to be able to vote on election day, this code states that, “the employee shall give the employer at least two working days’ notice that time off for voting is desired…”

For you, if it appears that you will be at the job site for 12 hours on election day, and will not be off work until 7:00, as you suggested, that may not give you the opportunity to get to the polls to vote. You should notify your employer, in writing, three days prior to election day, that you will need to take time off to vote. You can work out with your employer whether it makes more sense to go to the polls when they open and then come in to work, or to leave early with enough time to get to your polling place.

Employers also need to be aware that for at least 10 days before every statewide election, every employer must keep posted a notice setting forth the provisions of California Elections Code § 14000 so that employees like you are aware of their rights. The notice must be placed conspicuously at the place of work, if practicable, or elsewhere where it can be seen as employees come or go to their place of work. 

Another important aspect of this code is that it would likely be unlawful for an employer to retaliate against you, or any person who made use of these provisions of the Elections Code to vote. We would argue that an employer who terminates an employee for exercising their right to vote would have engaged in, “wrongful termination in violation of public policy,” a cause of action in a lawsuit available when someone is terminated in violation of a fundamental public policy.  A wrongful termination cause of action provides for recovery of economic damages such as lost wages and benefits, non-economic losses such as anxiety, stress, emotional distress, fear and humiliation and, if the denial was the decision of an officer, director or, “managing agent,” of the employer, even punitive damages. Importantly, since you work in construction, a field with many Union employees, any collective bargaining agreement provision, which seeks to waive an employee’s right to pay for time taken off to vote, has been held by the courts to be against public policy, contrary to express provision of law and invalid.

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