Celebrating Latinx/Hispanic Heritage Month By Dolan Law Firm’s DE&I Committee

Celebrating Latinx/Hispanic Heritage Month By the Dolan Law Firm DE&I Committee

In honor of Latinx/Hispanic Heritage Month, which is celebrated from September 15 to October 15, the Dolan Law Firm celebrates the culture of both Hispanic and Latinx individuals and communities.

Background

“Hispanic Heritage Month”  began as a weeklong celebration coined as “Hispanic Heritage Week” in 1968. President Lyndon Johnson signed the National Hispanic Heritage Week Bill (P.L. 90-498) and was eventually enacted into law on August 17, 1988 (law-100-402) by President Ronald Reagan who extended the week to a full 31 days.

Additional Important Dates

  • September 15 marks the independence day for various Latin countries, primarily from Central America: Costa Rica, El Salvador, Guatemala, Honduras and Nicaragua. 
  • September 16 is Mexico’s independence Day.
  • September 18 is Chile’s Independence Day.
  • The second Monday of October (October 11th this year) was originally observed as Christopher Columbus Day. However, many have rejected the commemoration of Columbus and have pushed for the holiday to be renamed to celebrate the unique and often indigenous ancestry of Latinx people. Many communities of color and officially recognized by cities and states across the U.S. celebrate Indigenous Peoples’ Day. Some Latin American cultures celebrate Dia de la Raza, Day of the Race or Day of Hispanic Heritage. Latinx/Hispanic Heritage Month is an opportunity to highlight and celebrate the rich contributions and diverse makeup of Latin American culture.

Debate on the term Hispanic or Latinx?

The term Latinx is originated in “activist circles primarily in the U.S. as an expansion of earlier gender-inclusive variations such as Latino/a and Latin@”. The “x”does not imply a specific gender – as would the “o” (masculine) or “a” (feminine) for nouns in Spanish and is meant to disrupt the grammatical binary that is inherent in this romance language” according to Joseph M. Pierce, an assistant professor in the Department of Hispanic Languages & Literature at Stony Brook University.

The difference between Latinx and Hispanic largely comes down to how you self-identify. Latinx has been adopted among people who are looking for a more gender-free alternative to Latino or Latina (leaving no option for those who choose to identify as non-binary).

Honoring Historical Events and Contributions Made by People of Hispanic/Latino Heritage

  1. Color TV  –  Guillermo Gonzalez Camarena, only 23-years-old, patented a chronoscope adapter with which black and white cameras of the day could capture color. NASA used the mechanism as recently as 1979 to transmit images of Jupiter.  
  2. Mendez v. Westminster – In 1946, eight years before Brown v. Board of Education, Mexican Americans in Orange County California won a class action lawsuit to dismantle the segregated school system. Federal District Judge Paul McCormick, delivered a landmark ruling that segregation of Mexican Americans was not only unenforceable under California law, but it violated the equal protection clause of the 14th Amendment to the U.S. Constitution. 
  3. Helen Rodriguez Trias  –  Headed the department of pediatrics at Lincoln Hospital in the South Bronx. In 1970 she was a founding member of the Committee to End Sterilization abuse and in 1971 a founding member of the Women’s Caucus of the American Public Health Association. She supported abortion rights, fought for the abolishment of enforced sterilization and sought neonatal care for underserved people. She drafted guidelines requiring a woman’s written consent to sterilization in a language they could understand and set a waiting period between the consent and the sterilization procedure. She is credited with helping to expand the range of public health services for women and children in minority and low-income populations in the United States, Central and South America, Africa, Asia, and the Middle East.
  4. Astronaut Ellen Ochoa became the first Latina to go to space in 1993. She served on a  nine-day mission aboard the space shuttle Discovery where she studied the Earth’s ozone layer, then returned to space three more times, spending nearly 1,000 hours in orbit. Ochoa was honored with NASA’s  distinguished Service Medal and served as the director of the Johnson Space Center in Houston Texas, from 2013 to 2018. In 2017, she was inducted to the United States Astronaut Hall of Fame and in 2018 she was inducted into the 2018 International Air and Space Hall of Fame class.
  5. Sonia Sotomayor – Became the first Latina Supreme Court Justice and the third woman to serve on the court. She ruled in the majority which upheld the Affordable Care Act twice, and in Obergefell v. Hodges, to legalize same-sex marriage in all 50 states.
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Hit and Run or Uninsured/Underinsured Motorist Insurance Claims

Written By Christopher B. Dolan and Kimberly E. Levy

This week’s question comes from Kate R. from Oakland:

I was rear-ended on the freeway a few days ago and the driver that hit me fled the scene. The police took a report but have not been able to identify the other driver. I ended up in the hospital with some serious injuries. I am not going to be able to go back to work for a few weeks, at least. The bills for my medical care are going to start piling up. I have no idea what to do. Please help.

Thank you for reaching out, Kate. We’re sorry to hear about what happened to you and hope that you make a speedy recovery. Navigating the claim process for a hit and run case can be complicated. The good news is that you may have purchased several types of insurance coverages that can help you through this difficult time.

Medical Payments Coverage (“Med Pay”):
What is it?

Med pay is an optional coverage that is part of your individual car insurance policy. Med pay covers reasonable and necessary medical bills when you (or your passengers) are injured in an accident. Med pay will even cover your reasonably necessary medical expenses if you are injured as a pedestrian or passenger in someone else’s car. This coverage applies regardless of who is at fault for the collision.

How does it work?
There are two ways that med pay typically works:

  1. You go to the medical provider of your choice and the provider bills the med pay directly as if it were health insurance; or
  2. You submit bills and records to your insurance company for reimbursement of paid or outstanding bills.

Why do I need this coverage if I have health insurance?
There are several reasons this coverage is useful even if you have health insurance.

  1. First, health insurance often leaves you to pick up the tab for co-pays and co-insurance amounts. With med pay coverage, you can be reimbursed for these out-of-pocket costs.
  2. Second, med pay enables injured people to seek treatment that would not normally be covered by their health insurance policy, i.e., acupuncture, massage, and other alternative treatments. Finally, med pay allows you to seek a second opinion by a medical provider of your choice which is often beneficial when your health insurance coverage is an HMO plan.

Uninsured/Underinsured Motorist Bodily Injury Coverage (“UM/UIM”):
What is it?

Uninsured/underinsured motorist coverage applies when another driver is at fault for a collision but either has no insurance or not enough insurance to cover the injured person’s medical bills and other damages. Importantly, this coverage also applies in hit and run cases, such as yours, when the identity of the at fault driver cannot be ascertained.  

In order to protect yourself against hit and run drivers, uninsured drivers, and drivers carrying the minimum amount of liability insurance (which is $15,000 in California), it is best to make sure you protect yourself with uninsured/underinsured coverage.  

How does it work?
With this coverage, your own insurance company covers your losses as if it were the at-fault driver—the insurance company steps into the shoes of the at-fault driver. In a UM/UIM case, you will make a claim against your own insurance company up to the amount of your purchased coverage. In some ways, UM/UIM cases are advantageous. Because you are in a contract with your insurance company, your insurance company has a duty to treat you fairly and regard your interests equally as its own interests. Unfortunately, you will not be entitled to a jury trial on these cases. UM/UIM cases are typically resolved by settlement or through an arbitration process (trial in front of a neutral “judge” agreed upon by the parties).

If you are injured in a hit and run accident, specific rules apply in order to trigger UM coverage. 

  1. First, there must have been contact between your vehicle and the hit and run vehicle.
  2. Second, within 24 hours after the accident, it must be reported to the police for the jurisdiction in which the accident happened.
  3. Third, within 30 days of the accident, you must provide your insurance company with a sworn statement that you were injured and that the person causing injury is unknown. Facts explaining the same must be provided in the sworn statement. Typically, a copy of the police report showing hit and run will be sufficient to meet this requirement. These requirements are set forth in California Insurance Code section 11580.2(b)(1) and (2).

Will making a claim increase my insurance premiums?
In California, it is illegal for an insurance company to raise rates when a policyholder brings a claim and was not at fault.  (California Insurance Code Section 491). As long as the other driver was the cause of the accident, your premiums should not increase. If there is an increase in the cost of your coverage based on claims activity made necessary by the fault of another, this should be reported to the California Department of Insurance.  

Do not concern yourself with the fact that payment is coming from your own insurance company versus the adverse driver or his/her/their insurance company. This is coverage that you have paid for and the insurance company is best equipped to bear the loss. The insurance company is free to seek reimbursement from an uninsured driver should that be feasible.

How long do I have to resolve my case?
Generally, in a UM case, you have two years from the date of the incident to either settle your claim or make a “demand for arbitration” – a process where you formally notify your insurance company that you would like to resolve your case by arbitration. Your insurance company has an obligation to keep you informed of these deadlines and requirements throughout the process.

So often, we think of insurance as a means to protect our assets and property. It is equally important, however, to remember to protect yourself against uninsured and underinsured motorists who may cause you harm. Review your insurance policy to see if you have the applicable coverage.  

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Medical Injury Compensation Reform Act and Medical Malpractice Cases

Written By Christopher Dolan and Casey Hultin

This week’s question comes from Pam from San Mateo:

A good friend of mine’s child recently passed away.  My friend believes that a doctor’s error caused her child’s death. Do you have any advice? How can the doctor be held accountable?

Dear Pam,

I am so sorry to hear your friend is going through this. What you are describing is called medical negligence or medical malpractice. Medical error is far too common and hundreds of thousands of Americans die each year as a result. Unfortunately, in the state of California, the options for recovery for the errors of medical providers and the ability to hold them accountable is extremely limited because of the Medical Injury Compensation Reform Act of 1975, otherwise known as “MICRA”.

MICRA was signed into law in 1975 and limits compensation for what are called “non-economic” damages, including things like pain and suffering and wrongful death damages for the loss of a loved one such as a parent, child, or spouse, or other impacts on quality of life such as the loss of a limb or cognitive function. MICRA limited the maximum recovery for non-economic damages for preventable medical negligence at no more than $250,000. This amount has not changed since 1975. With inflation, the $250,000 cap now would equate to approximately $50,000 in 1975. Roughly speaking, had this cap kept up with inflation, the cap would now be approximately $1.2 million.

Medical malpractice cases are long and difficult and often require the retention of expert witnesses. Costs to successfully hold a medical services provider accountable for negligence can exceed $100,000. While there are ways to potentially recover these costs through a jury trial, doing so is time consuming, stressful, and not a guarantee. As a result, there are not many lawyers that take on these cases, nor is this often something that people potentially want to pursue because of the small amount of net recovery once litigation costs and attorney fees are paid. Many plaintiffs go through multiple years of stressful, invasive litigation in medical malpractice cases. Medical malpractice cases are more costly than other personal injury cases such as automobile accidents, because defense attorneys and the insurance companies paying for them will take as many steps as possible to whittle down the already smaller pot for recovery. Jurors who decide these cases are not informed of the cap, and only find out after the verdict that the plaintiff’s recovery is limited to $250,000.

While your friend is thinking through whether to pursue a medical malpractice case, it is important to remember that there is a one-year statute of limitations on medical malpractice claims in California. The clock begins running when the plaintiff knew or had reason to know of the medical malpractice. This determination is case specific and not always easy to determine. If you are ever considering bringing a medical malpractice case, it is important to have your case evaluated as soon as possible. Evaluation of your case by a medical malpractice attorney also often involves an initial review of all available medical records by a doctor or other expert, so gathering all the medical records from the treatment at issue as expeditiously as possible will also help.

Economic damages are still recoverable under MICRA. Unfortunately, for the death of a child or someone who is not employed, economic damages will be relatively minimal, essentially limited to funeral expenses. When the injured person survives and has ongoing medical expenses related to the doctor’s error, the injured person can also recover for those medical expenses, with some limitations.

Another important thing to note about MICRA is that MICRA does not just limit what most people think of as medical malpractice, it also impacts recovery against other health care providers such as massage therapists.

California voters will have the opportunity to change the law in the November 2022 election when the Fairness for Injured Patients Act is on the ballot. The Fairness for Injured Patients Act will adjust for inflation the maximum $250,000 compensation cap set on quality of life and wrongful death survivor damages to approximately $1.2 million. It will also allow judges and jurors to decide that compensation above the cap is appropriate in the cases of catastrophic injury or death. Jurors will also be informed of the cap. Additionally, the Fairness for Injured Patients Act will adjust the limitations on economic damages recovery for medical malpractice cases so that insurance companies cannot shift the costs back onto parties that are not at fault.

Additionally, the Fairness for Injured Patients Act will extend the time to bring a claim for medical malpractice to two years instead of one year, which is more in line with the time to bring a claim for other personal injury causes of action.

I am again so sorry for your friend’s loss. They are lucky to have a friend like you supporting them in their time of need.

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New Legislation Encourages Bicycle Safety

Weekly Articles | On-The-Go

Written By Christopher B. Dolan and Emile A. Davis

This week’s question comes from Danielle T. from San Francisco:

I am a San Francisco resident and bicycle commuter. I ride to work daily and find it frustrating and unsafe to stop at a four way stop when it is clear for me to proceed. Often, when multiple cars are at the intersection, I feel I am slowing things down waiting my turn, and I have to rely on drivers seeing me and “allowing” me to take my turn in order to be safe. I don’t need the hassle of a ticket or people yelling, so I follow the law and stop, even though I am putting myself at risk. I think bicyclists should follow traffic laws, but there should be exceptions, or different rules for cyclists where it makes sense. Are there any changes coming? How can I help push for this type of change? 

Thank you for your thoughtful question, Danielle. As a cyclist myself, I share your concerns and observations that better rules which recognize the way cyclists use the road, particularly as it relates to bicyclists at stop signs. There is a potential solution on the horizon in California. The Safety Stop Bill (AB 122) has made its way through the legislature and is waiting for Governor Newsom to sign.

The Safety Stop Bill would change the requirements of cyclists at a stop sign. It would be lawful for a cyclist to treat a stop sign as yield sign, allowing them to proceed through so long as the intersection is clear. However, if other vehicles are at the intersection, or a pedestrian is in the process of crossing, bike riders must yield the right-of-way. 

California is not the first state to consider this type of law. Idaho was first, adopting a law in 1982 that allowed cyclists to treat a stop sign as a yield sign, and a red light as a stop sign. This “Idaho Stop” stood alone for many years until other states began to see the wisdom of adopting commonsense changes to the vehicle code to appropriately treat the different issues that cyclists bring to the roadway. More recently, Washington, Oregon and Colorado have adopted similar legislation allowing cyclists to proceed through stop signs when it is safe to do so. 

Legislation of this type is often met with a knee-jerk negative reaction from non-cyclists who are not used to the dangers and difficulties cyclists must interact with regularly. There are many reasons that laws of this type, and AB 122 in particular, are grounded in sound policy. Safety may be the most important reason. Studies have shown that where these types of laws go into effect, the rates of bicycle related accidents decrease. These laws just work. Cyclists have a clear view of the intersection without obstruction and, by necessity, have a keen awareness of the proximity of other vehicles. The bill would also conform the law to what is common practice which encourages respect for the law in general. This would have the added benefit of minimizing inequitable enforcement of laws and minimize pretextual stops of minorities for what is common behavior by all. A law of this type would bring us into conformity with our Pacific neighbors, Washington and Oregon, which have already enacted this type of law. 

It is no surprise that this law is supported by the local bicycle coalitions including, Bike East Bay, the San Francisco Bicycle Coalition, and the Marin Bicycle Coalition. Getting involved with these types of organizations is a good way to help be part of an organized push for cycle friendly legislation. Here, at the Dolan Law Firm, we have a long history of support of these organizations and the work they do on behalf of cyclists. 

 

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Rice v. City of Roy: A Police Shooting Incident Case

A federal jury rules unanimously in favor of Chris Dolan’s clients and finds excessive use of force used by police officer Chris Johnson. A verdict of $3, 257,000.00 was awarded to plaintiffs, in Federal Court, Tacoma Washington, and against Chris Johnson and the city of Roy on September 23, 2021. This case arises from a police officer involved shooting just south of the Roy Washington city limits in February of 2019.

FOR IMMEDIATE RELEASE

UNANIMOUS JURY HOLD ROY WASHINGTON POLICE OFFICER LIABLE FOR EXCESSIVE FORCE IN POLICE SHOOTING CASE

On September 23, 2021, a Federal Jury, In Tacoma, Washington, unanimously found that City of Roy Police Officer, Christopher Johnson, violated the Fourth Amendment rights of David Rice and Seth Donahue, when he shot them as they were traveling, unarmed, in their UTV on the BNR rail tracks inside the City of Roy, a rural city of less than 1,000 inhabitants covering .49 square miles. Roy has a police force of 2, one being the defendant, Christopher Johnson. The total verdict was $3,257,000.00.

FACTS:

February 9th, 2019, was a snowy day in Roy, located in Pierce County, Washington, about 60 miles outside of Seattle. Rice and his nephew, Donahue, had been out in their RZR UTV enjoying the 10-12 inches of snow traveling along trails, rail tracks and “tearing it up” through the city streets in Roy.  Admittedly, they had been drinking beer (ten and 13 beers respectively over 6 hours) that afternoon and evening. Officer Johnson alleged that Rice, driving the UTV, committed various traffic infractions and that he tried to pull the UTV over in town claiming that he activated his lights and siren, and that Rice and Donahue took off on the railroad tracks to evade him. Rice and Donahue stated they were unaware of Johnson’s pursuit, and it was shown that the rail tracks are a commonly used UTV trails. Home surveillance video, located nearby, peripherally caught the shooting on tape.  Dolan argued that “Johnson’s ego, being bruised, let him to turn off his lights and siren and race ahead to try and cut-off Rice and Donahue on the tracks at 295th St.  As Johnson approached perpendicular to the tracks, he turned off all the lights on his car “going dark” as the UTV approached.  Johnson then quickly drove the police vehicle towards the tracks, turned on only his spotlight, shined it down the tracks towards Rice, and ran from his police car, weapon drawn, towards the UTV.  Jonson admitted that he placed himself on the tracks, directly into the path of the approaching UTV and when the UTV didn’t stop, fired two shots into the front windshield and then two more into the passenger window as the UTV went by “fearing for his life.”  Johnson was hit by the UTV before firing.  Rice and Donahue testified that they were blinded by the spotlight, did not associate it with a police officer, and did not see Johnson until he shot them. Rice was struck on the right shoulder, with the bullet traveling into his chest, and also in the groin where the bullet passed through and exited his left leg. Donahue was shot in the right hand.   Dolan used accident constructionists, police procedures and ballistics experts as well as the Chief of the Roy Police Department (the other half of the 2 sworn officers) and Johnson himself, to show that he violated Roy’s Use of Force and Police Pursuit Policies and engaged in an excessive use of force.  Dolan and Jessup also prevailed on a Monelll Claim demonstrating the Chief and Mayor of Roy ratified Johnson’s conduct by failing to engage in an officer involved shooting inquiry and engaging in a disciplinary review of Johnson’s conduct and maintaining him on the force.

Dolan said “finally the tide is turning against police abuse. And justice under the 4th Amendment is being secured for those victimized by abuses of police powers. There is not an increase of police abuse, there is an increase in civil prosecution of these cases largely fueled and supported by modern day evidence generated by cell phones and private surveillance cameras.”

David Rice stated “I thank the jurors for their time and honesty and their courage to hold the police accountable. Their decision vindicates me and my nephew: we were out just having fun in the snow, we didn’t threaten anyone, hurt anyone, and were just about home when he ambushes us and shot us.  I’m a hunter and you couldn’t even shoot a deer this way without it being a crime.  The City of Roy has lied about what happened to the press through their press releases. The Jury saw through those lies.  The City of Roy needs to act to remove Johnson and he should be criminally prosecuted for his excessive use of force and abuse of power.”

Seth Donahue stated “I have been afraid of the Roy Police since the day this happened. They painted us out to be criminals when it was Officer Johnson who broke the law. We are good people who were having fun on a snowy night on rural roads, we didn’t know Johnson was supposedly chasing us and he came out of nowhere and opened fire. They need to take him off the street and take his gun and badge. Before he kills someone else.”

Further information may be obtained by contacting Chris Dolan at 415-279-2604 or Local Counsel, Doug Cloud at 253-921-1505

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You too, Us too: The Strength in Numbers

Written By Christopher B. Dolan and Vanessa C. Deniston

This week’s question comes from Fatima in the Bay Area:

I am a woman of color working at a big tech company in the Bay Area. I have been stuck in the same position for nearly seven years, while several of my white, male co-workers and even subordinates have been given opportunities for advancement. I’m worried my supervisor doesn’t consider me a serious candidate for a promotion, despite my excellent performance reviews. When there is a menial task to get done, it always seems to be assigned to me. At company events, my supervisor introduces me by first name only to corporate representatives, though he introduces the male members of my team using their full names. In meetings, I am frequently interrupted by male team members when I am trying to share feedback or ideas. I am hesitant to approach HR about this. I feel I will be told I have no proof and I am just imagining things. I’ve heard rumors that women in other departments have had similar experiences, but I’m not sure who they are and I’m too worried about my job security to go asking questions. Do I have any options here? 

Thank you for your question, Fatima. Let me assure you that you are not alone in your experiences. What you have described, a mixture gender and potentially race-based discrimination and microaggressions, is being experienced on a grand scale throughout the tech industry by women. Men continue to outnumber women at every level and women are promoted at a lower rate than men, making up only about 38% of managers. While many companies couch themselves as “progressive” and profess to have inclusive diversity platforms, the disparities in the workplace between men and women and, disproportionately, women of color, persist.  

Most recently, a group of both current and former Apple employees dissatisfied with the internal responses to their complaints of harassment, discrimination and retaliation have banded together and called for a collective exchange of stories and experiences in the workplace, spurring the #AppleToo hashtag on social media. The group’s website urges its coworkers at every level to collectively call for systemic change in the workplace, stating that,

“when our stories are collected and presented together, they help expose persistent patterns of racism, sexism, inequity, discrimination, intimidation, suppression, coercion, abuse, unfair punishment, and unchecked privilege.” 

In circumstances such as yours, Fatima, there are several actions you can take to both protect yourself and connect with other women and/or persons of color with similar experiences. First, it is essential to document any incidences or circumstances you feel could be related to gender or race discrimination, including discussions with your boss regarding your interest in advancement opportunities and his response, instances of microaggressions and/or evidence of disparate treatment in the workplace. If possible, your written record should be created contemporaneously with the incidences they document and be marked with a date and time stamp. Contemporaneous records, especially those bearing a date and time stamp, are afforded more credibility than ones created after the employee suffers a termination or a disciplinary meeting. Your description should include the date, time, setting, potential witnesses involved and what was said. Be a meticulous historian and leave emotion out of it, if possible. Always assume an outsider, with no knowledge of you, your character, or your performance record, may someday be reading and evaluating your account of what occurred. While you can certainly share how the experience made you feel, resist the urge to vent. 

The second step you can take is keeping your eye out for allies and sharing your experiences with them in a safe environment outside the workplace. It may feel intimidating to ask other women or persons of color if they, too, feel discriminated against or marginalized in the workplace. Therefore, it is often easier to share your own experiences with them first. If they have faced something similar, they are more likely to feel comfortable volunteering it on their own terms than they would if you questioned them about it directly. If they do end up sharing similar experiences, approaching human resources together can be a powerful approach. It is easier to dismiss one employee’s experience as an outlier, than it is to dismiss two or three similar ones, especially where the reporting structure is shared. 

Nonetheless, if you find you are your only reliable witness, go to HR and report your concerns, preferably in writing. Do not operate under the assumption your concerns will be dismissed. Even if they are, it is unlawful for your company to retaliate against you for voicing your complaints about suspected gender and/or race discrimination. Your company has a vested interest in responding to discrimination claims appropriately, as a failure to investigate, only increases their liability. As always, documenting all communications you have with your supervisor and HR is an important tool to keep track of what has occurred and protect yourself should retaliation occur after filing an informal or formal complaint.

If you feel you are being harassed, discriminated against, or retaliated against because of your race or gender, contact an attorney that specializes in employment law. Making real, transformative change in the struggle against institutionalized implicit bias and overt bias, takes courage and numbers. The good news is the tech industry does not lack either.

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Nursing Home Nightmare: Sexual Abuse in Care Facilities

Written By Christopher Dolan and Cristina Garcia

This week’s question comes from David K. in San Francisco:

My older sister, Lucy, is forty-one years old and suffers from physical and mental impairments. She uses a wheelchair and has trouble communicating. A couple of years ago, my parents and I made the tough decision to place her in a nursing home, as my parents could no longer care for her. We researched the facility, and it appeared to be a well-equipped facility for my sister’s needs. I would visit my sister on the weekends. I observed a male resident who seemed friendly and often engaged in conversation with Lucy during my visits. At the time, I thought it was nice for Lucy to have a friend in the facility. However, this all changed during one of my visits when I found this male resident in her room. They were by themselves, and he was lying in bed with her, which I found completely inappropriate. I immediately asked him to leave. I then spoke to one of the nurses and notified her of the incident. She apologized and assured me it wouldn’t happen again. Lucy’s nurse also stated that this male resident had exhibited inappropriate sexual behavior to other female residents. When I heard this, I was utterly disgusted. I have seen news stories about health providers who have sexually or physically abused residents. However, I am not sure what to do in this situation as the person abusing Lucy was another resident. Can the facility be held accountable for the other resident’s behavior, as they previously knew about his sexual tendencies?

David, it is terrible that you and your family had to go through this experience. As you mentioned, many news stories discuss physical or sexual abuse by health providers. However, it is the nursing home’s responsibility to ensure the safety of all residents, not only from health providers but also from other residents. 

Under the Elder and Dependent Adult Civil Protection Act (“EADACPA”), codified as Welfare and Institutions Code Section 15600 et sec. A “Dependent Adult” is defined as “any person between the ages of 18 and 64 who resides in this state and who has physical or mental limitations that restrict his or her ability to carry out normal activities or to protect his or her rights, including, but not limited to, persons who have physical or developmental disabilities, or who physical or mental abilities have diminished because of age.” Cal. Welf. & Inst. Code § 15610.23(a). The law further defines “dependent adult” to include any person between the ages of 18 and 64 years who is admitted as an inpatient to a 24-hour health facility. Cal. Welf. & Inst. Code § 15610.23(b). 

Based on the information you have provided, it appears that Lucy is a dependent adult who relied on the nursing home staff to protect her from harm. Under Cal. Welf. & Inst. Code Section 15610.57, “Neglect” includes the “failure to protect from health and safety hazards.”

Furthermore, “Abuse” is defined as “the negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise.”  The nursing facility was negligent in the care of Lucy because they failed to protect her from health and safety hazards. Despite having knowledge that the male resident had sexual tendencies, the facility did not properly monitor the resident and allowed him to continue interacting with female residents without supervision. In addition, the facility’s conduct would fall under “abuse” as defined by the EADACPA because a reasonable person in a like position would not allow the male resident to interact with Lucy without supervision and should not have allowed them to be alone in her room. Once the facility became aware of the sexual tendencies of the male resident, they should have taken precautionary measures, including monitoring his behavior and whereabouts to ensure he was not left alone with other residents he could harm.

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Dolan Law Firm Wishes You a Safe Labor Day Weekend

Written By: Mari Bandoma Callado, Senior Associate Attorney and Director, DE&I

Dolan Law Firm hopes you and your family have a wonderful and safe Labor Day Weekend. To help you safely enjoy the end of the summer, we put together these safety tips:

Social Gatherings

Over the course of the last 18 months or so, we learned that social gatherings may lead to the spread of COVID-19. With hospitalizations and deaths due to the highly contagious delta variant of COVID-19, we encourage you to stay vigilant. 

If you are attending a social gathering this holiday weekend please avoid being in a crowd and poorly ventilated spaces as much as possible, try to maintain a physical distance of 6 feet, wash your hands often, and wear a mask when outside your home, in public, and around others. If you are feeling sick or have been exposed to someone with COVID-19, we urge you to stay home.
Click here for more information on safely gathering and here on how to protect yourself and others. If you are not yet received the COVID-19 vaccine but are interested in learning more, click here.

Drive Safely

If you are going on a road trip or just driving around town this weekend, please drive safely. The National Safety Council estimates approximately 390 deaths and another 44,400 serious injuries over Labor Day weekend this year. Please wear your seatbelt, don’t drink and drive (designate a driver instead), and maintain a safe speed.
For more safety tips while driving, click here.

Swim and Boat Safely

If you are heading to the beach or the pool this weekend, please be cautious. Do not swim alone (in case you become incapacitated). If you are swimming with children, designate a responsible adult to supervise children at all times as they swim or play by the water. If you are going to the lake or a river, please wear a life jacket.
For more swimming safety tips click here.

If you will be on a boat, please do not underestimate the dangers of the water. According to the U.S. Coast Guard, most boating accidents occur because of excessive speed, lack of experience, and distractions. Do not drink and boat. It is against the law in California to operate a boat or water ski with a blood concentration (BAC) of 0.08%.
For more boating safety tips click here.

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Jury Duty during COVID-19

Written By Christopher Dolan and Lourdes De Armas

This week’s question comes from James P. in Daly City: I recently received a Jury Duty Summons. With everything that is going, do I still need to serve on a Jury? Should I ignore it?

Thank you for your question James. 

It is true that many courtrooms have begun hearing jury trials, but many courts are prioritizing criminal cases. The Los Angeles Courts have been focusing on the 7000 criminal cases that are currently backlogged, according to Presiding Judge Eric Taylor.

This is pushing aside civil cases leaving many victims anxiously waiting for their personal injury trial. The delayed cases include:

  • people badly injured in car accidents,
  • medical malpractice,
  • workplace accidents,
  • sexual assault and
  • workplace harassment

The delays are primarily attributable to the pandemic shutdown of 2020. The apparent second surge of COVID-19 cases in various California counties are reinstating previous pandemic restrictions and quarantines. This trend may soon cascade to every county across the state and that could mean additional trial extensions that will continue to backlog all cases. This legal landscape is justifiably frightening to those awaiting verdicts.

There is another reason for delays that is plaguing every court across the state. So much that even criminal trials are being delayed. Jury trials whether criminal or civil are paralyzed without a key component: JURORS.

Within the past few months, courts from Sacramento to San Francisco, Los Angeles, and San Diego had to delay trials because too few people responded to jury duty summonses. Across the state, the non-response rates are much higher now than they were before the pandemic.

San Francisco’s Superior Court gives potential jurors the option to report online or in person is experiencing an online trend. Just in July, in one case, out of 135 jurors instructed to report, 127 reported remotely and 8 people reported in person to the courthouse. Of the 8 people who showed up to court, half of them were dismissed, leaving just 4 in person prospective jurors for the trial.

A television station in San Diego recently reported that a criminal case had to be postponed last month because too few people showed up for jury duty. Officials twice summoned 900 people, but only about 40 people showed up each time, KGTV reported.

“What the real question boils down to are people willing to show up to that court and sit in a jury trial?” said Bill Raftery, a senior analyst with the National Center for State Courts. “Many courts have been responsive to jurors who have said that they’re not comfortable with coming to court and doing jury duty and therefore offering deferrals simply because of concerns over COVID.” 

These shortages of jurors have created delays in criminal trials that infringes on the constitutional rights of many. The law says that individuals facing criminal charges are presumed innocent. For some defendants who have not been convicted and are awaiting their day in court, can’t make bail or are being held without bail, it is more time behind bars as a pretrial detainee.

What can you do if you receive a jury summons? Do not ignore it. You are needed. “Justice has not shut down. Justice has slowed down,” said Deborah Chang, president of the Consumer Attorneys of California.

There is currently a big impact on civil proceedings. Victims of personal injury are often disabled and maybe out of work because of some tragic incident and cannot wait months or years for a trial date or settlement. “It is devastating on the clients and the family who are desperate,” according to Chang. The side effects of these delays are devastating to victims who are in the weakest health. They may be clinging to life due to an injury in an accident, or perhaps a workplace exposure to a harmful substance. “It is so devastating to lose a plaintiff before they reach the trial date because they die. Sometimes the claim dies with them,” said Chang.

The system cannot function without you. Jury trials provide an opportunity for citizens to participate in the process of governing. Serving on a jury is the most direct and impactful way for citizens to connect to the constitution. Citizens can help perpetuate our system of laws and stabilize our democracy. 

Jurors perform a vital role in the American system of justice. The protection of our rights and liberties is largely achieved through the teamwork of judge and jury who, working together in a common effort, put into practice the principles of our legal system. In both civil and criminal cases, it is the jury’s duty to decide the facts in accordance with the principles of law and guided by the assigned judge. The decision is made on the evidence introduced, and the jury’s decision on the facts is usually final. 

Juries provide the perspective of the citizen to our developing body of law. Exercise your constitutional right to participate in a process that is a cornerstone of American democracy: the jury trial!

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The COVID-19 (Coronavirus) outbreak is an ongoing, rapidly developing situation and the local, state, and federal responses are changing regularly. The Dolan Law Firm takes efforts to keep the information on this page updated, however, to guarantee up to date information it is necessary to confirm with publicly available federal, state and local health organization guidance and government mandates.

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