Brain Injuries | Dolan Law Firm

How Will AI Transform the Practice of Personal Injury Law?

Written By Christopher Dolan and Cioffi Remmer

This week’s question comes from Robert in Oakland, CA, who asks: How will AI and the ChatGPT app impact the practice of personal injury law?

Dear Robert,

The public’s interest in Artificial Intelligence has surged recently with the introduction of “ChatGPT,” OpenAI’s Artificial Intelligence application. On ChatGPT, you can prompt the AI program to write essays, articles, speeches, book reports, answer questions, and even write software code. To answer your question, I asked ChatGPT to write an article on AI’s impact on practicing personal injury law in the next five, ten, and 20 years. Here’s what ChatGPT wrote:

“Artificial intelligence (AI) is rapidly transforming various industries, and the legal industry is no exception. AI-powered applications like ChatGPT have the potential to revolutionize the practice of personal injury law in the coming years. In this article, we will explore the impact of AI on personal injury law over the next five, ten, and 20 years.

Personal injury law involves cases in which a person is injured due to the negligence of another party. Such cases can be complex and time-consuming, requiring extensive research and analysis of legal precedents and statutes. This is where AI-powered applications like ChatGPT can be particularly useful.

In the next five years, AI-powered legal research tools will become increasingly common. These tools can quickly and accurately analyze large volumes of legal data, including court opinions, statutes, and regulations. This will allow lawyers to conduct legal research more efficiently and effectively, saving time and money for their clients.

Furthermore, AI-powered applications can assist lawyers in predicting case outcomes and settlement values. By analyzing data from past cases and considering various factors, AI algorithms can provide insights into the potential outcomes of a case. This can help lawyers to make better-informed decisions and advise their clients accordingly.

In the next ten years, we can expect to see AI-powered applications being used to streamline the litigation process. For example, AI algorithms can analyze medical records and other evidence to help lawyers build stronger cases. This can reduce the need for expensive expert witnesses and simplify the discovery process.

Moreover, AI-powered applications can assist lawyers in drafting legal documents, such as pleadings and motions. These applications can analyze past cases and legal precedents to generate documents that are tailored to the specific needs of a particular case. This can save lawyers a significant amount of time and improve the quality of their work.

In the next 20 years, AI-powered applications may even be able to assist with settlement negotiations and courtroom arguments. For example, AI algorithms could analyze the personalities and behavior of judges and opposing counsel to predict their responses to certain arguments. This could help lawyers to craft more persuasive arguments and negotiate more favorable settlements for their clients.

However, as with any technological advancement, there are also potential drawbacks to the increasing use of AI in personal injury law. One concern is the potential for bias in AI algorithms. If these algorithms are trained on biased data, they may perpetuate existing inequalities and injustices in the legal system. Moreover, the use of AI may raise ethical concerns around the role of lawyers and the potential de-skilling of certain legal tasks.

In conclusion, AI-powered applications like ChatGPT have the potential to significantly impact the practice of personal injury law in the coming years. While there are potential risks and challenges associated with the increasing use of AI in the legal industry, there are also significant benefits to be gained. As AI continues to evolve, we can expect to see even more innovative applications being developed to assist lawyers in their work.”

Written By Christopher B. Dolan

If You’re in the Stands, Keep Your Eye on the Ball: Over the past decade, at the beginning of baseball season, I have published a column concerning who is responsible if someone gets hit with a line drive, foul ball and/or broken bat while watching a game. As a lawyer, and a big Giants fan, I like to start off the season by saying, put down your cell phone and keep your eye on the ball during play. A distraction can lead to serious and even life threatening injury.

Balls and bats leaving the playing field and entering the stands are not uncommon. In a 2014, Bloomberg News analysis of ballpark injuries, it was reported that each year in the United States roughly 1,750 spectators are injured by batted balls at major league ballparks. The study showed spectators were much more likely to be hit with an errant ball than a player was to be hit with a pitch. While most injuries are thankfully minor, there are reports of severe injuries, and even death, due the sport’s use of wooden bats and 90 mph plus fastballs.

In an article published in the Boston Globe by Catherine Cloutier on June 09, 2015, Edwin Comber, a baseball statistician, is quoted as saying that about 73% of foul balls go into the stands. A 2000 lawsuit against the Red Sox revealed that during a five-year period in the 90’s, 36 to 53 fans per year were hit by balls outside the field of play. Furthermore, there have been reports of skull fractures and even brain injuries, as a result of bats and balls entering the stands. As the fans demand to be ever closer to the action, and the field is filled with high-priced seats closer and closer to the plate and baselines, the risk of injury goes up just as fast as the price.

The issue of liability for fans’ injuries was addressed by the California Supreme Court in 1935 in the case of Quinn v. Recreation Park Ass’n, 3 Cal.2d 725, where the court held that one of the natural risks assumed by fans attending major league games is that of being struck by batted or thrown balls. The Court ruled that the franchise and/or park owner/operator is not required, nor does it undertake, to insure patrons against injury from such source. All that is required is the exercise of ordinary care to protect patrons against such injuries. Management is not obliged to make each seat safe from flying balls. The court pointed out that many patrons prefer to sit where their view is not obscured by a screen.

The duty imposed by law is performed when screened seats are provided for as many as may be reasonably expected to call for them on any ordinary occasion and if a spectator chooses to occupy an unscreened seat or is unable to buy a screened seat and chooses to occupy one that is not protected, they, “assume the risk of being struck by thrown or batted balls; and, if injured thereby, is precluded from recovering damages therefor,” as stated in Brown v. San Francisco Ball Club.

In Neinstein v Los Angeles Dodgers Inc. (1985) 185 Cal.App.3d 176, the Court of Appeals held that:

…The quality of a spectator’s experience in witnessing a baseball game depends on his or her proximity to the field of play and the clarity of the view, not to mention the price of the ticket. As we see it, to permit plaintiff to recover under the circumstances here would force baseball stadium owners to do one of two things: place all spectator areas behind a protective screen thereby reducing the quality of everyone’s view, and since players are often able to reach into the spectator area to catch foul balls, changing the very nature of the game itself; or continue the status quo and increase the price of tickets to cover the cost of compensating injured persons with the attendant result that persons of meager means might be priced out of enjoying the great American pastime. To us, neither alternative is acceptable…

Despite the Court’s unwillingness to intervene to reshape baseball through tort law, I am happy to report that all thirty teams in the MLB have decided to extend safety netting and screening all the way down the first and third baselines to the foul pole. So, if you are in the lower section, you should be better protected from line drives and broken batts. If you are in the upper decks, keep your eye on the ball because, if you are in an unprotected seat, you are legally assuming the risk of injury.

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.

Written By Chris Dolan

This week’s question comes from Rob in Foster City, who writes: I was in SoMa last weekend, and got in a motorcycle crash. Coming home late at night on my motorcycle, when a van in the left lane beside me swerved into my lane nearly hitting me. I jammed on my brakes and hit the back of the van. The driver said he had no insurance. The van he was driving belonged to the company he worked for. I broke my wrist, and my bike is a wreck. What can I do?

Thank you for your question, Rob. I started riding motorcycles as a teenager and, as a lawyer, regularly represent injured motorcyclists. One of the most common scenarios in the motorcycle crash cases I litigate is when a driver, without signaling, cuts off a motorcyclist or turns suddenly from the opposite lane in front of the motorcyclist. In both cases, the resulting collision can be fatal to the motorcyclist. I am relieved your injuries, while serious, were not life-threatening.

Here, the van driver violated California Vehicle Code Section 21658, which states,

“Whenever any roadway has been divided into two or more clearly marked lanes for traffic in one direction,” it is the rule that “(a) A vehicle shall be driven as nearly as practical entirely within a single lane and shall not be moved from the lane until such movement can be made with reasonable safety.”

I assume the damage to your motorcycle was more than $750. If that is the case, you have to report the accident to the DMV within 10 days of the accident. If you have not already filed the report, go the DMV website, search for Form SR-1, complete the form and send it in right away to the DMV.

You didn’t mention whether you have motorcycle insurance. Assuming you do, you need to ask your agent about whether your insurance policy contains uninsured and/or underinsured motorist coverage. What is uninsured and underinsured motorist coverage? Let’s start with what it isn’t.

When we think of insurance, we think of liability insurance. It protects your assets if you are at fault for an accident and you hurt someone or damage someone else’s property.

Liability insurance does not, however, protect you from damages you suffer in an accident that is someone else’s fault. That’s where uninsured and underinsured motorist coverage applies. Because many drivers in California violate the law and drive without insurance – or have a bare bones policy – California law requires insurance companies to offer consumers this coverage.

Even though the other driver did not have insurance, your insurance policy may be sufficient to cover both the financial loss you suffered – your wrecked bike and any days missed from work – as well compensate you for your broken wrist and medical expenses due to the collision.

What happens if you don’t have insurance?

I hope that is not case. But if it is, the company that owned the van may be legally responsible for your motorcycle crash injuries under the legal doctrine respondent superior, which is Latin for “let the master answer.” The doctrine is codified in California Civil Code Section 2338. It holds an employer responsible for the torts (wrongs) committed by its employees that fall within the “scope and course of their employment.”

You have to show that that the employee was negligent (acting in a manner that was unreasonable or illegal), and that the employee was also involved in the employer’s business enterprise at the time of the collision.

Here, the employee’s negligence is clear: He violated the vehicle code. Was the van driver also involved in the employee’s business? If he was delivering an item for the company or returning the van to the company parking lot after he completed his work shift, the answer is yes.

Determining if an employer is legally responsible for an employee’s negligence requires a thorough investigation of the facts. I suggest you consider contacting an experienced motorcycle crash attorney to advise you further on your legal rights and remedies.

Written By Christopher Dolan and Jeremy Jessup

This week’s question comes from D. Conger from San Bruno who asks: While traveling in Washington, I was involved in a motor vehicle collision that resulted in injuries. The funny thing is that I found out the person who struck my vehicle was from San Jose. I had initial treatment in Washington and more once I returned home. In addition, I have missed a substantial amount of time from work. I would like to seek compensation for this collision but don’t have the energy to try and find an attorney up there. Do I have to have an attorney from the state of Washington represent me?

Dear D.,

I am sorry to read about your ordeal and wish you a speedy recovery. With the summer months upon us, research shows that summer travel is returning to pre-pandemic levels. The most recent data on summer travel suggests that it will be busy this year, as a recent survey from The Vacationer found that nearly 81 percent of Americans were planning to travel. According to Janeen Christoff of Travel Pulse, road trips remain one of the most popular forms of travel in a post-pandemic world. The nearly 80 percent of travelers who said they were going to take a road trip make up approximately 206 million Americans. Almost 20 percent will travel more than 500 miles from home by car. Also, nearly 7 percent say they will take road trips more than 1,000 miles from home.

With all those people on the road, collisions are bound to occur across state lines.

The simple answer to your question about whether you need local counsel, is that it depends. In most cases, while you live out of state, you may need to hire an attorney licensed in the state where the collision occurs to represent you. However, that is not always the case.

The correct venue (the county or district where a case must be heard) is one of two places. It is where the injury-causing event occurred, in this case, the motor vehicle collision, or where the defendant resides. If one were to elect where the defendant resides for your case, that would be Santa Clara County, here in California. In that case, you would not need to find an attorney up in the state of Washington. However, the important thing to remember is that in most cases, the laws of where the collision occurred would still apply; in this case, that would be the state of Washington. Some attorneys are comfortable dealing with the laws of other states, and some are not.

However, let’s assume that the defendant was a resident of the state of Washington. Again, local counsel would be required, but you could still hire someone from California. In that case, the attorney, if they agreed, could seek to get “pro hoc vice” (Latin for “on this occasion”) into the State of Washington. If the court grants the motion, the California attorney, with the supervision of the local attorney, would be granted a temporary license to practice in the state of Washington, but only on your case. In most instances, the California attorney you select will already know someone in the other state, which is why they agreed to accept the case. You would not need to try and find two attorneys.

With the advancement of technology and courts allowing for remote appearances, it is now as easy as ever for attorneys to represent clients in different states. For example, all attorneys at our firm are licensed in California. However, some are licensed in Oregon, Washington, Georgia, Arizona, Texas, and Massachusetts. We have handled all aspects of litigation in these states, including trials in some.

Finally, an attorney in California may hold licenses in other states, allowing them to practice in multiple jurisdictions. Essentially, this means that even though the attorney of your choice resides in one state, if they hold a license in another, they can freely practice there, as if they were local.

Remember, no matter who you choose to represent you, be sure to document everything, lost earnings, medical treatment, and symptoms, and provide them to your attorney. As a team you will work together to get the best result.

Written By Megan Irish and Christopher B. Dolan

This week’s question comes from Kevin who asks: I recently witnessed a car crash where a truck ran a red light and hit a woman in a small SUV. The truck completely ran the red and hit the woman. She had the green light, and I saw that the pedestrians walking her way had 8 seconds on their count down. I stayed at the scene and gave the injured woman my contact information, but I couldn’t stay long because I had my little boy with me and did not want to stand on the street for long. I also told her I saw that the truck ran the red and hit her, but I wondered what else I could have done to help. What do you think is helpful to do when you see a car crash?

Dear Kevin,

Thanks for staying and telling the injured person what you saw. In terms of what you can do as a witness, there are many things. First, make sure you are safe to stop at the scene of a collision. If it is not safe, you can call 911 and report the crash and provide a statement about what you saw. You can describe where you were and what you observed. Sometimes the investigating officer will call you back and conduct complete interview about the collision. They will refer to you as a witness in the traffic collision report and summarize your statement to them in the report. Be honest and as straightforward as you can be. Provide any specific details you can. However, if you can stay at a scene and speak to the people involved, that is great too.

When you observe a collision, here are a few things to look for:

Look at where pedestrians are walking, and cyclists are riding. Can you see the traffic signal light, and if so, what color is it for whose direction of travel? Are there protected turn lights for left-hand turning vehicles, and if so, what color are they? Can you see the count down for pedestrians crossing the street? if so, on what number is it? Was the driver avoiding any hazards? If so, what is it, where did it come from, and where did it go? Was the hazard also involved in the collision? Where are the involved vehicles stopped? Can you note the license plates? Are the drivers involved staying at the scene or trying to leave? Do you have a camera on you? Can you safely take some photos? Or a video? If you can take pictures, try to capture the locations where the vehicles came to rest. Take photos of any debris that came off the cars, and any skid marks associated with the collision. Take pictures of the license plates of the vehicles involved in the crash, and the people who were driving the cars. If you have time and can capture the color of the light before it changes, that can be helpful too. Watch the traffic lights cycle through. Are there any problems with them, such as the same color showing for both directions at once? If that happens, then definitely try to get a video and bring it to the attention of the people involved in the collision, as they will need to try and get a video to provide to their insurance. Although this is a long list of things to remember to do, this information can be helpful when explaining who had the green and who had the red lights. If a person is badly injured, they may leave the scene in an ambulance, and they will not be able to relate what happened to the police. Any statements you provide can be helpful to the investigating officers and or insurance companies to understand how the collision occurred and who was at fault.

Liability

Determining who was at fault is crucial to establishing liability for a matter. Liability is the legal term for who is responsible for the collision and whose insurance company need to cover the costs of the repairs to the vehicles and the injury to the people. Liability is frequently ‘disputed,’ meaning insurance companies cannot determine who caused the collision. Therefore, they wait on making any payments until they can establish more evidence to prove one vehicle was responsible for the other. For instance, in the collision you observed, where one car ran the red light, it will be necessary for the person who had the green light to prove they had the green light to the other driver’s insurance. The parties typically dispute red light-green light cases, and an independent witness statement, such as your own, can be very helpful. The insurance companies will call you after a collision, and your statements will help the at-fault driver’s insurance take responsibility for the damages to the injured party.

It is significant that you stayed and relayed what you observed. Your statement was likely beneficial to the drivers involved and is appreciated by those involved in a collision.

Written By Christopher Dolan and Allison Stone

This week’s question comes from Anonymous who asks:

What should I expect once I have hired an attorney after an accident?

Dear Anonymous,

Thank you for your question. After you are involved in an accident and hiring an attorney, there are still a lot of unknowns and questions. What happens next? Here is an overview of what to generally expect during this time:

Sign Initial Documents:

The first step in hiring an attorney is signing a retainer agreement along with other paperwork so your attorneys can start working on your case. This paperwork often includes signing various authorizations that allow your attorneys to get the necessary records to prove your case.

Provide Documents and Information:

In addition to signing the retainer agreement and opening documents, you will need to provide your attorney with the information and documents you have. Documents include a copy of your ID, insurance cards (automobile and health insurance), photos, and other evidence relating to the incident. It is also essential to provide the facts about how and when the incident happened, what injuries and losses you suffered, if you have missed work, or if anyone witnessed the incident. You must also provide your attorney with a complete list of all the doctors and healthcare facilities that treated you. This documentation is necessary not just at the beginning of the case but also crucial to keep attorneys updated as you continue to seek medical treatment. Your attorney can then obtain all medical records and bills.

Attempt to Negotiate a Pre-Litigation Settlement:

Attorneys will often send the insurance company a settlement demand once they obtain documents. This demand will set forth the basis of your case, explain your injuries and damages, and provide photos, medical records, and bills. The insurance company will review the demand, typically make a counteroffer, and a negotiation process will generally follow.

Filing a Lawsuit:

If your attorney cannot negotiate a pre-litigation settlement, they will file a complaint, starting the litigation process. Retaining an attorney as soon as you can after an accident is very important. There is a time limit when you can file a lawsuit called a statute of limitations. This statute of limitations varies depending on the type of case. If you miss the statute of limitations, you will not be able to file a lawsuit.

Once a complaint is filed, your attorney will find and serve the complaint on the defendant, advising them they are being sued. At this point, the defendant will hire an attorney or notify his/her/their insurance company who will represent him/her/them. The insurance company will hire a lawyer if the defendant has not already hired one.

Discovery:

This is typically the longest phase of a case and can take months, a year, or years depending on the circumstances of the case. During discovery, each side asks the other side for all the information and evidence they have to support their claim and arguments. Your attorney will likely contact you intermittently with specific questions about the accident, your injuries, status updates, etc. During discovery, both sides will also take depositions. As an injured party or a Plaintiff, you will have a deposition, which is a time for you to answer questions by the defense attorney. Another part of discovery in a personal injury case is a physical examination where the defense can have you examined by their medical expert. Also, during this discovery phase, your attorneys will often have various hearings with the other side and the judge to provide updates and reports as to how the case is progressing.

Experts:

At any time during the case, your attorneys may hire various experts. Experts are needed to prove different aspects of your case, and the attorneys will hire the necessary experts for your case. Every case is different. You may have to meet with their experts. Or, experts may be involved in part of your case that does not require your involvement.

Mediation:

Mediation is a process wherein the parties meet with a neutral third person, a mediator, who will help parties reach a settlement. It is not an adversarial process; typically, each party is in their room or space and never speaks to or sees the other party(s). Working with an independent person who helps to settle your case is an essential step in virtually every case.

Trial:

During a trial, both sides have a chance to go to court and present evidence and witnesses that supports their case to a jury. In the end, either a judge or jury come to a verdict. At any time, the matter can settle, which ends the trial. Most personal injury cases settle and do not proceed to trial.

With all of this said, it is critical to be patient and trust your attorney who is there to guide you through the process and make recommendations along the way. The most important thing is to hire a trustworthy and hardworking attorney to handle your effectively and efficiently.

Written By Christopher Dolan and Emile Davis

This week’s question comes from an anonymous writer who asks: I was recently in a bad car accident. I was in the hospital and required surgery to put some screws and a plate in my shin. I am in therapy for some very private and personal issues arising from an abusive relationship. I don’t want to share that information with anyone, but, I have also been talking to my therapist about the difficulties in recovering from the accident and being so limited with my leg while I heal. It wasn’t my fault, but I am scared to bring a lawsuit.

Is there anything I can do to get compensated but not let the driver who hit me or the insurance companies know my personal business from my therapist even though I talked to her about the accident?

Dear Anonymous,

You have raised an interesting dilemma that affects many people who file a lawsuit and are in litigation. What you describe is at the heart of many privacy laws in California- the conflict between a litigant’s privacy and the need for information to get to the truth of a matter.

We need to start at the most basic level to understand how this conflict plays. First, every person has a privacy right to their medical records. The California constitution expressly provides that all people have an “inalienable” right to privacy. This clause has created a zone of privacy that protects against unwarranted compelled disclosure of certain private information, including medical records.

However, this privacy right is not absolute. As your question understands, certain medical privacy rights are waived by bringing a lawsuit. Clearly, in evaluating a leg injury like the one you have suffered, prior injuries to that leg would help inform a clear understanding of the damage this accident caused. Defendants sometimes litigate and argue that all privacy in medical records is waived by bringing a lawsuit. Courts have held the line well, limiting physical records to the body parts in question in the litigation or if the body parts are directly implicated.

Mental health records follow a similar analysis, but there is a more transparent and absolute way to protect therapy records from being disclosed. Part of the damages a Plaintiff in a civil lawsuit arising from an auto accident generally includes what is referred to as non-economic damages: pain and suffering, emotional distress, fear, and anxiety.

Since the non-economic damages are likely discussed in therapy records, as it is in your case where you have explained the difficulties of the recovery process with your therapist, they would be directly relevant to the litigation. However, the law has developed a mechanism to allow protections and allow the maintenance a litigant’s privacy.

The Plaintiff can make an election between what is known as a “garden variety” claim for emotional distress damages or what is called a “special claim”.

When making a “garden variety” claim, the Plaintiff indicates that “no claim is being made for mental and emotional distress over and above that usually associated with the physical injuries claimed.” If the emotional distress suffered is of the type expected from the physical injuries, a Plaintiff’s therapy records would not likely be at issue and could be kept from disclosure.

A special claim is the opposite. It is where the emotional injuries exceed what would be expected from the physical injuries. An example would be when someone had a severe emotional reaction and sought psychological treatment to deal with the emotional injures from the accident.

With the bit of information, we have from your question, it seems that a garden variety claim would accomplish your goals of moving forward with a lawsuit while, at the same time, likely keeping your therapy records private. Please understand that there is no half-measure; if some of the records from a therapist are disclosed to prove how difficult your recovery has been, that will often open up the rest of the therapy records.

If you choose to move forward with a lawsuit, make sure to find an attorney who is knowledgeable about these things and can advise you regarding these important issues.

Written By Christopher B. Dolan and Megan Irish

This week’s question comes from Kisha J. from San Francisco who asks: Hi, my friend Angelino is a garage door repair man, and he recently got hurt while on a job. While he was up on the ladder working on the overhead door opener, the homeowner put several boxes behind his ladder. He fell on them when he came down the ladder and broke his ankle. He said he has been off work for a couple of weeks now and is making a worker’s compensation claim. I think the homeowner has some responsibility too, because he would not have fallen and broken his ankle if he hadn’t put boxes behind him. Is the homeowner responsible too?

Dear Kisha,

Your friend’s claim may be both a workers compensation claim and a third-party personal injury claim. The two types of claims are compatible and can be made simultaneously. In the most basic sense, a worker’s compensation claim is more limited in the compensation available, but it is often very quickly awarded, and there is no consideration of the injured party’s fault. Third-party personal injury claims often yield more compensation, but usually take longer and will examine the injured party’s own role in the cause of the injury and harm.

The worker’s compensation system is a “no fault” system. So long as the injury occurred while a person was at work, it does not matter who caused the injury. One does not need to prove that the employer or co-workers did anything wrong. Even if the injured party did something wrong, they are still usually covered. The workers compensation system has limited coverage though and is only available to cover medical costs and replace a person’s lost wages. Workers’ compensation claims do not cover general damages.

In a third-party action, when someone is at fault for doing something wrong, the harmed person can seek to recover both special and general damages. In a third-party action the injured party must prove that a third party was negligent, and that the third party’s negligence caused the injury. For example, failing to stop at a red light causing a vehicle collision would likely qualify as negligence by another that caused harm to the injured party. In such a case, special damages are available and cover, in very general terms, things the injured person has receipts for, such as medical bill and lost wages. Moreover, in a third-party action one can also seek to recover general damages, which are typically referred to as pain and suffering. The law includes physical and mental pain and suffering, loss of enjoyment of life, disfigurement, physical impairment, inconvenience, grief, anxiety, humiliation, and emotional distress as elements of general damages.

Generally speaking, third-party cases, are brought when someone other than the employer or coworker was negligent. The most common instances where an employee will bring a third-party action for injuries that occurred when they were working, are for defective products (action where a claim is made against the manufacturer of the product used to do a job), the injury was caused by a toxic or illegal substance, the employer did not carry worker’s compensation insurance, or the injury was caused by a third-party who was not a part of the company.

Workers Compensation and third-party personal injury claims can be brought at the same time. When they are, then the third-party claim may be required to reimburse the workers compensation claim. For example, if all of your friend’s medical bills have been covered in his workers compensation action and he makes a claim for the medical special damages in his third-party action, the worker’s compensation matter may seek reimbursement for what has paid out to your friend as replacement wages. The idea here being that the injured party should only recover his lost wages once. If he receives wage replacement from workers compensation, that is also later paid by the third party, it is only fair that the compensation system be reimbursed.

While most jobs have worker’s compensation coverage, there are two categories of employees who do not receive coverage for injuries at work under a workers compensation plan. Those two special categories are interstate railroad workers and crew members on boats. The railway workers can bring an injury claim under the Federal Employers Liability Act, and vessel crew members can bring injury claims under the Jones Act.

In this situation you’ve talked about the homeowner could face a claim as a third-party defendant. To bring a matter against the homeowner, the homeowner’s actions would need to be evaluated to establish if the actions were negligent. An attorney would need to evaluate the circumstances of your friend’s fall and see if there is a cause of action against the homeowner. We wish your friend a speedy recovery.

New legal Issues Concerning Brain Death Arise After The Passing Of Jahi McMath

Usually, I use this column to answer questions. Today, I will discuss the death of Jahi McMath and the new legal issues stemming from Jahi having been pronounced dead in California on December 13, 2013 and again on June 22, 2018 in New Jersey.