Back to School Safety: School Bus Accidents & School Transportation Safety

August 20, 2014 by Gregory J. Brod

With commercials for laptop computers and old-fashioned spiral notebooks, not to mention new sneakers and stylish jeans, there’s no question that the time children dread and parents celebrate has arrived – Back to School. As classrooms throughout Northern California open, school buses ready to transport students to and from school. Although they rank as one of the safest means of transportation, a recent headline proves that school bus accidents are a reality. When drivers fail to give these vehicles the special care they deserve or when a school bus driver violates our trust and puts kids at risk, our Northern California school bus injury lawyer is ready to protect the young victims.

Suspected Drunk Driver Arrested After Hitting School Bus
Classes had resumed for just one week when a school bus travelling to Union Mine High School was hit by a suspected drunk driver. KCRA reports that 32 schoolbus.jpgstudents were on board when the crash occurred on Thursday August 14 at 6:30 A.M. on Grizzly Flat Road in Somerset, El Dorado County. An SUV driven by 24 year old Steven Gruber hit a school bus on the two-lane road. Police arrested Gruber on suspicion of driving under the influence. Five students and the bus driver suffered minor injuries and two students were taken to the hospital as a precaution. Another vehicle was also involved in the incident, although it is not known whether its occupants were injured.

Statistics on School-Transportation Accidents
A June 2014 Traffic Safety Facts page from the National Highway Safety Transportation Association (“NHTSA”) focuses specifically on School Transportation Related Crashes. In the studied 2003 to 2012 period, there were 348,253 fatal vehicle accidents, with 1,222 deemed school-transportation related. On average for the time span, 135 people died in a school-transportation crash each year. Most of the deaths involved adults in other vehicles. Overall, from 2003 to 2012, a total of 119 school-age pedestrians and an added 55 school-aged vehicle occupants were killed in school-transportation accidents.

A study by the Center for Injury Research and Policy (“CIRP”) at Columbus Children’s Hospital purports to provides a more comprehensive picture of school bus safety. Instead of focusing on fatal incidents as the NHTSA does, the CIRP study looks at a wider range of injury-causing school bus crashes and suggests school bus injuries are three times more common than previously thought. The study finds that emergency departments treat approximately 17,000 school bus related injuries every year. The report also conclude: “[T]raffic-related crashes are the leading mechanism of nonfatal school bus-related injury for children in the U.S.”

Protecting and Representing Our Students
School buses are safer than many other forms of travel but, despite laws and regulations aimed at protecting the buses and their passengers, school bus accidents remain a reality. Thankfully, the recent Union Mine incident caused only a few minor injuries, mostly leaving behind a lot of rattled nerves. School bus accidents, including accidents involving passengers getting on and off the bus, can be much more tragic.

When a school-transportation crash occurs, an investigation is critical. Possible causes include: A reckless driver; A defective vehicle or part; A dangerous bus policy, or; A careless bus driver. Determining the cause is part of what we do. As a law firm for school bus injuries in Sonoma, Oakland, San Francisco, and throughout Northern California, we also help victims obtain money damages. Call to arrange a no-cost consultation.

See Related Blog Posts:
National School Bus Safety Week

School Zone Car Accident in Antioch Raises Major Safety Concerns

(Image by John Seibert)

Where Health Care Fraud and Government Contracting Fraud Intersects

August 18, 2014 by Gregory J. Brod

Readers of this blog know that our firm is actively working to help combat fraud against our government, including health care fraud and government contracting fraud. Sometimes, these two fields overlap. In this post, we look at a case of pharmaceutical fraud that is akin to cases of government contracting fraud and procurement fraud, with some of the fundamental concerns of health care fraud. As with cases of Medicare fraud and military contracting fraud, our San Francisco government fraud whistleblowers’ law firm works with people who see transgressions in the health care contracting area and opt to fight this dangerous misdeed.

Government Settles Vaccine Distribution Case Involving San Francisco Corporation
vaccine.jpgThis month, McKesson Corporation, a San Francisco-headquartered company that distributes pharmaceuticals, agreed to pay $18 million allegations brought by the Centers for Disease Control and Prevention (“CDC”) against the company. Per a Department of Justice press release, vaccine distribution agreements provided that McKesson would distribute government-purchased vaccines to practitioners. According to the government, the contracts required McKesson keep the vaccines at an appropriate temperature during shipping. The government claims McKesson failed to set temperature monitors to the appropriate range between April 2007 and November 2007. The recently settled suit alleged that McKesson knowingly submitted false claims for payment while failing to meet its contractual obligations.

These allegations were initially raised in a qui tam lawsuit filed by Terrence Fox, a former finance director with a division of the McKesson Corporation. As the DOJ explains, qui tam provisions allow a private whistleblower to bring suit on behalf of the government for False Claims Act violations. Pursuant to these provisions, the whistleblower is entitled to a share of funds recovered by the government as a result of such a lawsuit. Fox’s share has not yet been determined.

The Cost of Fraud in Health Care Contracting: Duplicate Efforts Help, But What About Next Time?
As a Modern Healthcare article notes, McKesson has not admitted to any wrongdoing and says no vaccines were compromised. The DOJ release suggests the CDC does agree on the last part. There are redundant measures used to ensure the safety of the vaccines and the temperature monitors were secondary to packing procedures which don’t appear to have been improper.

We are glad that the vaccines remained safe, but agree with sentiments expressed by several government voices in the press release. Assistant Attorney General Stuart F. Delery notes that a company must comply with the terms agreed upon on in their government contracts, especially when it involves products that protect the public. He says “If a contractor does not adhere to the terms it negotiated, its conduct not only hurts taxpayers but also could jeopardize the integrity of products, like vaccines, that Americans count on to be safe.” Derrick L. Jackson with the Department of Health and Human Services agreed, especially when the underlying contracts protect our children (note: it is not clear in the press release exactly what type of vaccines were involved, but the Modern Healthcare article notes the contract involved a program aimed at vaccinating children). Jackson adds that entities that fail to meet such important obligation violate our trust and holding them accountable should be a top priority.

What if the packaging people also chose to skirt the requirements too? What if the dual failure led to vaccines that were either defective or outright dangerous? What if vaccines became ineffective leading to an outbreak of measles or even polio? What if instead of protecting our children, vaccines sickened them? There are lots of safeguards to prevent this from happening, but it is still the danger created by health care contracting fraud.

A Partnership in Fighting Fraud
Health care fraud is a broader transgression than many assume and sometimes it is much simpler. A scheme like that alleged above might better be described as government contracting fraud involving health care than “traditional” health care fraud. Military contract fraud endangers our national security, health care contract fraud endangers our well-being. In either case, others may have a hunch something is amiss it is often insiders who have the knowledge to truly support a legal claim.

If you know that a company is cheating in its government contractor role and defrauding the government, you can make a huge difference and may also be eligible for a very significant reward. Call our Northern California whistleblower’s firm to arrange an appointment to discuss how you can help and how, in turn, we can help you.

See Related Blog Posts:
Working With and Protecting Whistleblowers, Bringing Down Schemers Who Defraud the Government and Its Citizens
Whistleblowers’ Attorney Discusses Guilty Plea in Case Involving Contractor Providing Substandard Parts to Department of Defense

(Photo by Daniel Paquet)

Variety, Number of Medicare Fraud Schemes Overwhelm Efforts to Collar Them

August 15, 2014 by Gregory J. Brod

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The federal government’s quest to stem the tide of fraud against Medicare has been overmatched by a flood of schemes that have been as widespread as they have been varied. For every case of Medicare fraud the government has cracked, it seems, there are many more that are go unpunished. And that is a reason why San Francisco qui tam lawsuit attorney Gregory J. Brod reminds us that brave whistleblowers who step forward with critical information on fraud help buttress the government’s efforts to reduce this crime wave against U.S. taxpayers.

According to The New York Times, the federal government is spending $600 million per year to combat Medicare fraud, a campaign that includes the marshaling of expert teams and use of sophisticated computers. Despite Washington’s efforts, however, the fraudsters remain several steps ahead of the government. To put the problem in a monetary perspective, it has been estimated that fraud and systematic overcharging against Medicare costs about $60 billion a year, which translates into 10 percent of the program’s annual expenditures, but the government was only able to recover about $4.4 billion last year.

Part of the problem stems from the sheer number of claims that must be reviewed for verification purposes: at the Centers for Medicare and Medicaid Services, the agency responsible for overseeing the vetting process, only 3 million claims of an estimated 1.2 billion claims per year are reviewed.

Systemic problems also plague the government’s efforts to curtail abuses against Medicare. Foremost among them is the fact that the government employs an army of outside contractors who are poorly managed, with conflict-of-interest issues, political pressures, and competition and lack of communication among the contractors some of the problems that hamper their efforts.

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As another example, Medicare opted to shut down a successful hotline in South Florida, which is a hub for Medicare fraud, claiming that the hotline was no longer needed. But the suspension of the hotline has led to calls being routed to a general number, which in turn has significantly slowed down the government’s response time to complaints.

But while the pace of addressing complaints in South Florida has slowed down, the variety and depth of schemes against Medicare in the Sunshine State has picked up steam. Indeed, according to the South Florida Business Journal, a study released by the Department of Health and Human Services’ Office of Inspector General has found Miami to the be the epicenter of a scheme to defraud Medicare for HIV-related drugs and treatments: it seems that while only 2 percent of Medicare beneficiaries who receive drugs for treatment of HIV live in the Miami area, that small percentage accounts for 24 percent of all billing patterns that have been deemed questionable.

Included among the practices that have raised red flags have been the prescriptions of $6.5 million worth of HIV drugs for 888 patients who have no history of the disease on record. Other eyebrow-raising practices have included prescriptions meted out for an unusually large number of HIV drugs or prescriptions for the medications being written from six or more pharmacies or doctors.

Continue reading "Variety, Number of Medicare Fraud Schemes Overwhelm Efforts to Collar Them" »

A Settlement Offer by Another Name: GM Offers Compensation Plan for Defect Victims

August 15, 2014 by Gregory J. Brod

Car makers should be focused on the future, on the next car to come down the assembly rather than the last. However, lately it seems GM is spending more time dealing with problems from yesterday’s cars than making tomorrow’s. Our San Francisco auto accident law firm is always concerned when an auto recall is announced and earlier this week The San Francisco Chronicle reported that GM had added six new recalls to the sixty already announced. The new recalls mean the auto giant’s recalls for 2014 cover more than 29 million vehicles.

GM Ignition Switch Recall and Compensation Program
GM.jpgWhile note every recall involves a problem that has been known to cause accidents, a piece in last week’s Wall Street Journal focused on a problem initially linked to at least 54 crashes and 13 fatalities. The actual toll may be much higher. GM recently began a compensation program and in the first eight days received approximately 120 claims, half of which involve purported fatalities and another dozen or so that involve catastrophic injury. The issue, which led to a recall of around 2.6 million cars, is a possibly faulty ignition switch that could slip out of the “on” setting, abruptly stalling the vehicle and disabling its air bags. Distressingly, reports say that GM knew about the underlying problem for over a DECADE, but only began to recall and repair affected vehicles this February.

A compensation program aimed at the ignition switch defect (note: the defect above, not to be confused with a more recent recall for an ignition-key problem that could cause SUV window-switches to catch fire) is expected to offer payments from $20,000 to several million dollars. Claimants must show: (a) they were hurt or their family member was killed (b) in a crash involving a vehicle on the relevant GM recall list (c) and a police report or similar reputable source shows the air bags failed to deploy. Under the plan, a fatality will automatically qualify for a $1 million pain and suffering payment above and beyond other damages. Ken Feinberg is overseeing the program for GM and expects it will to take until after Labor Day to evaluate the eligibility of the initial claims. Ultimately he hopes to be able to make payments within 90 days of an eligibility ruling for simple claims and within 180 days for more complex matters.

Safety Recalls and Victims’ Rights
A booklet published by the National Highway Traffic Safety Administration (“NHTSA”) discusses the auto recall program and its goals. Recalls are issued when either a safety-related defect exists or a vehicle/equipment piece does not meet federal standards. Typically, manufacturers issue recalls voluntarily and prior to NHTSA involvement. Once the safety issue is identified, the manufacturer can choose from three remedies: Repair the vehicle (at no cost); Replace it with an identical or similar vehicle; or Refund the purchase price (minus depreciation).

Beyond the recall remedies, victims injured because of the defect still have a right to be compensated for their injuries. A program like GM’s, however, will presumably require waiving any civil claim in return for the compensation payments. The program is, essentially, a settlement offer. As with any settlement offer, we strongly urge injured victims and grieving families obtain legal counsel before signing anything. You do not need to agree to a program that allows the car company to make a one-sided offer, a program managed by their lawyers and in their best interests.

If you were hurt or lost a loved one in Northern California as a result of a faulty ignition switch or any other recall-related defect, whether it is a GM recall or a recall by another manufacturer, call our firm. With three convenient offices, our auto recall law firm in Santa Rosa, San Francisco, and Oakland will help make sure you get the compensation you deserve.

See Related Blog Posts:
Recall Highlights the Importance of Child Safety Seats
Unexpected Braking Leads to Second Honda Recall

(Photo by Flickr User jm3)

Sewage Spills in Northern California: The Impact and the Legal Rights of Toxic Exposure Victims

August 13, 2014 by Gregory J. Brod

People talk about a “California Lifestyle.” Having met such diverse people in our practice, we’d be hard-pressed to define just one. Any definition would certainly include a mix of sand and surf, land and water, and an active engagement with our environment. Typically healthy, this lifestyle means environmental problems can quickly become health problems. In this post, our Oakland toxic exposure law firm looks at one example -- the health impact of sewage spills and sewage contamination.

Oakland Water Main Break Follows a History of Sewage Leaks and Spills
sewagesign.jpgOne way sewage can get into our waterways is following a water main break. While sewage isn’t mentioned, The Oakland Tribune recently reported on three water main breaks that occurred around Oakland on Monday. An East Bay Municipal Water District spokesperson linked the breaks with work on an aqueduct and related pressure changes. The largest break flooded Kingston Road near the Piedmont Border. There was also a break at 47th Avenue and a third at Walavista & Arimo Avenues. An official noted that all of the affected pipes were aging.

A 2009 article from an environmental science group said 20 million gallons of raw sewage had been release into California waterways in 2008, a record-breaking number they expected would be exceeded that year. Old worn-out pipes, severe weather, and a lack of funding could, per the article, “add up to a disaster of septic proportions.” Perhaps in recognition of that danger, the EPA and others filed a lawsuit seeking to prevent sewage spills. That suit was recently settled, as reported in The The Contra Costa Times, with an agreement that seeks to improve 1,500 miles of aging pipes that threaten to release sewage into San Francisco Bay following heavy rainfall. Cities and water districts agreed to pay for prior violations and the settlement continues the requirement that homeowners inspect/upgrade certain sewer lines upon selling the home or undertaking substantial renovations.

The Health Risks
There are good reasons for paying attention to sewage spills and similar toxic leaks. American Rivers, a water and waterways conservation group, hosts a general sewage spills webpage and PDF on related health risks. More than 850 billion gallons of untreated/raw sewage are released into our waterways each year. Sewage releases carry disease-causing pathogens into drinking water supplies and swimming areas with approximately 7.1 million mild-to-moderate and 560,000 moderate-to-severe cases of waterborne illness occurring annually in the U.S. The EPA believes 1.8 to 3.5 million people are sickened by recreational contact with sewage-contaminated waters each year. Authorities are also increasingly worried about pharmaceuticals finding their way into waterways via sewer overflows, a hazard that may cause serious hormonal health hazards.

We are comparatively lucky compared to many nations; most waterborne illnesses in the U.S. are intense but relatively brief thanks to medical care. However, there are still many cases in which sewage overflows lead to long-term or even fatal illnesses, with the elderly, infants, and the immunocompromised at greatest risk. In 1993, for example, a parasite contaminated Milwaukee’s drinking water, causing 403,000 illness and 70-100 fatalities (the majority of deaths involved HIV-positive individuals).

Legal Rights of Californians Sickened By Sewage Spills
Even with the recent settlement, sewage spills are unlikely to disappear. While some are truly unfortunate accidents linked to severe weather, numerous sewage spills can be traced to the actions of an entity or individual. The risk of illness is exponentially increased if an entity fails to report a leak or spill to the appropriate health authorities. These actions may be negligent (ex. if a failure to inspect parts of an aging system leads to a leak) or distressingly intentional (ex. if a company opts not to report a sewage release for fear of negative press or economic consequences and people are sickened because they are unaware that water is tainted).

The law protects the wrongfully injured. A toxic tort or other civil claim may allow a victim of sewage-exposure to recover economic damages. If you were sickened or lost a loved one because you were exposed to a sewage spill or other toxic release, call our Northern California toxic tort attorney in Oakland, San Francisco, or Santa Rosa. We can help.

See Related Blog Posts:
Coal Ash – A Dangerous Byproduct of Energy Production
California Toxic Torts Law and the Many Dangers (and Uses) of Chlorine

(Image by Flickr user bclinesmith)

Why We Fight: A Reminder of the Dangers Behind Fraudulent Referrals in the Health Care Arena

August 11, 2014 by Gregory J. Brod

At the Brod Firm, we do the work we do for many reasons. We enjoy the intellectual challenge and being able to constantly grow, using what we learned yesterday to improve our work today. We enjoy serving our clients and helping them through their legal challenges, difficulties that often arise during life challenges. From an injured pedestrian to a grieving parent, a wronged tenant to a patient whose well-being was sacrificed for someone else’s financial reward, we enjoy making a difference. In the particular case of our work as a California health care fraud law firm, we enjoy partnering with inspiring whistleblowers in anti-kickback and other matters to fight for our health care programs and for patients’ rights. We are honored to play this role.

Kickback Case Involving Prenatal and Infant Care
Last week, an FBI press release announced the guilty pleas of Tracey Cota and Gary Lang. Both pled guilty to conspiring to violate the Anti-Kickback Statute by referring patients to hospitals in exchange for illegal payments. Lang served as the CEO of a hospital that was a provider enrolled in the Georgia Medicaid program while Cota owned and acted as COO for a corporation that operated multiple medical clinics in the Atlanta region and on Hilton Head Island.

cash.jpgAccording to the allegations, Cota’s clinics focused on prenatal care services with a clientele consisting largely of undocumented, uninsured women. These women were not eligible for federal Medicaid coverage but did qualify for some coverage from the Georgia and the South Carolina Medicaid programs. In the period from July 2000 till July 2012, Cota and Lang were part of a conspiracy to pay kickbacks for the referral of patients from these prenatal care clinics to certain hospitals. Disguised as contracts for translation and eligibility determination services, the kickbacks actually amounted to paid patient referrals that earned the hospitals more than $100 million in reimbursements.

The Danger of Kickbacks in the Medical Care Field
Both the Federal Anti-Kickback Statute and its California equivalent (see also listing within Medi-Cal Fraud prohibitions) prohibit anyone from paying money or offering other compensation in exchange for a referral for services under government health care programs. Language cited in the recent press release gives context to these crimes, noting that the executives profited by using the expectant mothers and infant children “as commodities [] whose health care could be bought and sold for kickbacks and bribes.” Kickback schemes of this nature not only misuse Medicaid fund but also “can lead to increased Medicaid costs, corrupt medical decision-making, overutilization of medical services, and unfair competition—and most importantly, insufficient or inadequate care for patients.”

A Partnership Against Fraud
Knowledge of fraudulent schemes of any sort is the type of thing that can keep a person awake late into the night, especially when the fraud not only diverts money but also endangers lives. The best cure for this brand of insomnia is speaking up. In the case of health care fraud (and other forms of government contracting fraud), California whistleblowers’ lawyer Attorney Greg Brod can help you rest easy, knowing that you are part of the fight against fraud and also that your own rights and well-being are being protected. Call to arrange a consultation.

See Related Blog Posts:
Tainted Decisions: Kickbacks Leave Providers Focused on Money, Not Patient Care

Putting Money Over Medicine: Health Care Fraud, Kickbacks and Patient Recruiters

(Photo by Stan Dalone)

California Attorney on Hotel Pools and Civil Liability

August 8, 2014 by Gregory J. Brod

August is often a time for family vacations, with parents squeezing in travel before the school year starts again (although some schools now start in early August!). For many people, the hotel pool is the first stop after they drop their bags in their rooms and parents often struggle to get kids to wait that long! Hotel pools are often filled with laughter and the site of long-lasting, happy memories. Unfortunately, however, hotel pool drowning is a real danger. While we hope that one day the service is no longer needed, until that day we will proudly serve drowning victims and their families as a Northern California pool injury law firm.

Heroic Passerby Pulls Family Out of Hotel Pool, But Outlook for Victims Unclear
The headline of an NBC Los Angeles article told an amazing part of the story: “Man Learns CPR, Rescues Family Week Later at Motel Pool.” According to the report, an 11 year old boy and 12 year old girl were playing in a motel pool when they wandered into deep water on Monday. Their mother instinctively jumped in to help, but neither she nor her children could swim. A Good Samaritan heard their screams, scaled a fence, pulled all three out of the pool, and began CPR until emergency personnel arrived. The man had only learned CPR the week before.

When paramedics arrived, all three were in cardiac arrest. An update from CBS San Francisco on Wednesday said the mother and daughter remained on life support but the boy was breathing on his own.

pool3.jpgDrowning Statistics
While their outlook is unclear, we still consider the passerby a hero. Drowning is a serious threat as a statistic-filled infographic on the U.S. Consumer Product Safety Commission’s Pool Safely website illustrates. Drowning leads to more unintentional deaths for children between one and four years of age than any other cause. In an average year, 390 children die nationwide from drowning in pools and spas and 5,100 children suffer drowning-related injuries that lead to emergency department visits. 48% of drowning injuries occur in residential pools and 24% occur in public pools (including apartment complex pools). A map on the infographic page shows California had the third highest number of accidental drowning deaths in 2012 for children aged 0 to 14.

Civil Law Protections for Hotel Pool Drowning Victims
Premises liability law involves the duties that a property owner and/or operator owe to those who enter the property. If a drowning occurs in a hotel pool, premises liability is the area of law most likely to provide recourse to the injured or the family of the deceased. Generally speaking, an owner/operator must use reasonable care to maintain property, including pools, in a condition that is safe for foreseeable users. Civil liability could attach if a pool area is negligently maintained. For example, a hotel may be liable if a pool’s exit ladder is not well-attached and a patron is hurt or drowns because the ladder comes loose when the patron tries to use it. Another example might be if a patron drowns after slipping and falling because the hotel used the wrong cleaning agent and it made the deck unreasonably slippery. A hotel may also be liable if a pool area does not meet safety laws and requirements, including having safety equipment available and accessible and making sure drains are properly covered.

There are two areas pf premises liability law that may be particularly relevant in pool cases. The first is a duty to warn of dangers that are not obvious. Potential examples in the case of hotel pools might be posting a sign warning that water is too shallow for diving or making it clear where the depth of a pool begins to increase. The second is the extra duties owed to children. These are particularly relevant in the case of an “attractive nuisance,” a dangerous but appealing space like a trampoline or pool. This duty may require taking special efforts to keep children from accessing a pool when it is closed and otherwise ensuring they are not alone in a pool area.

Our Commitment to Your Safety
Pools can be great fun. They can also be dangerous. If the negligence of a hotel (or another pool owner/operator) leads to a drowning injury or death, call our swimming pool lawyer in San Jose, Santa Rosa, Oakland, or San Francisco. We can help you get money damages from those at fault.

See Related Blog Posts:
Summer Safety Primer: Avoiding Accidental Pool Drownings
Nalwa v. Cedar Fair – The California Supreme Court on Amusement Park Injuries

(Photo by Tim Simpson)

Negligence Per Se – Applying a Legal Theory to the Collision of a Big Rig and a Muni Light Rail

August 6, 2014 by Gregory J. Brod

Few concepts are as fundamental to the field of civil injury law as the notion of negligence. As a plaintiff’s law firm, a key part of our job is proving that the defendant was negligent and that this negligence was the cause of the plaintiff’s injuries. In this post, our San Francisco personal injury attorney looks at a special form of negligence – negligence per se – a concept that helps plaintiffs fulfill their legal burden and show the judge/jury that the defendant should be held liable and ordered to compensate the plaintiffs for their injuries.

Big Rig’s Illegal Turn Leads to Crash with Light Rail Train
San Francisco’s ABC affiliate reported on a serious collision that occurred last Friday between a big rig and a light rail train. Witness reports helped San Francisco Police conclude that the driver of the big rig attempted to turn left onto Third Street from Innes Avenue despite signs clearly stating that left turns were not permitted. While attempting the illegal turn, the 18-wheel truck was struck by the Muni light rail train. Police did not immediately charge the driver despite concluding he was at fault

Following the collision, emergency personnel set up a triage system to treat passengers. Twenty people were injured in the crash and eleven were taken to the hospital for ailments that ranged from minor to more serious injuries.

The Law of Negligence… scales.jpg
In most cases, accident claims rest on a theory of negligence. This is described in California Civil Jury Instruction (“CACI”) Number 401: “Negligence is the failure to use reasonable care to prevent harm to oneself or to others.” Broadly speaking, negligence is present when a person fails to act in the manner a reasonably prudent person would act under the circumstances and this results in someone else being injured. In order successfully argue a negligence claim, the injured plaintiff will need to prove four elements: 1) Duty of care (ex. duty of a store owner to keep the property safe; duty of drivers to other motorists); 2) Breach (failure to meet that duty); 3) Causation (the breach caused the injuries); 4) Damages (the injury, usually looked at in monetary terms).

…and the Special Rule of Negligence Per Se
Negligence per se provides a shortcut for proving negligence. In these cases, the plaintiff does not need to show that a reasonable individual would have acted differently. Negligence per se exists when the defendant violates a law that is intended to protect the public from harm. Again, the California Civil Jury Instructions are useful with CACI Number 418 providing: “If you decide 1. That [name of plaintiff/defendant] violated this law and 2. That the violation was a substantial factor in bringing about the harm, then you must find that [name of plaintiff/defendant] was negligent [unless you also find that the violation was excused].”

Last week’s accident may give rise to one or more personal injury lawsuit. Since it appears that the truck driver violated one or more traffic laws, rules that exist to keep all motorists and bystanders safe, the rule of negligence per se will probably apply. If that is the case (and this is merely speculation, not legal advice for those involved), the plaintiffs would still need to show that the conduct caused their injuries and show the monetary value of those injuries, but the plaintiffs would not need to show that a reasonable person would have behaved differently than the truck driver acted under the circumstances..

Our Personal Injury Law Firm
With more than three decades of experience, Attorney Wes Pittman is committed to serving as a lawyer for injury victims in Northern California. Whether your case involves negligence per se or some other legal theory, our team will keep you informed as your case progresses and work to get you the compensation you deserve. Call to schedule a free initial consultation.

See Related Blog Posts:
Understanding Injury Law: Preparing Your Case Begins with the Facts
San Francisco Bicycle Accident Attorney on Safety and The Policy of Contributory Negligence

(Photo by Clyde Robinson of work by Jason Luper)

Hazards from Lead-Based Paint Must Not Be Overlooked in Landlord-Tenant Law

August 5, 2014 by Gregory J. Brod

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The implied warranty of habitability is a core principle of landlord-tenant law in California, and it gives every tenant the right to a habitable rental unit, which includes protection from weather, working plumbing and electricity, appropriate garbage receptacles, a unit free of rodents and other vermin, etc. And San Francisco landlord-tenant law attorney Gregory J. Brod would note that another important issue that can render a rental unit uninhabitable is the presence of lead or lead-based paint, a danger that should be of particular concern to renters with children.

Disclosure is a key element of regulations on lead in the United States that apply to landlords, which is spelled out in the so-called Lead Disclosure Rule, or Title X Section 1018 of the Residential Lead-Based Paint Hazard Reduction Act of 1992. In that federal law, Congress directed the Department of Housing and Urban Development and the Environmental Protection Agency to require the disclosure of known information on lead-based paint and lead-based paint hazards prior to the sale or lease of most housing units constructed before 1978. The 1978 date is important because lead was prohibited from all housing build from that date forward. Landlords must include an addendum to a lease, or language within a lease, that includes a Lead Warning Statement and confirms that the landlord has complied with all notification requirements.

A major potential problem with pre-1978 housing, of which there are plenty of examples in the Bay Area’s housing stock, is whether lead that may have been used in the construction process will ever get released in the form of paint chips or dust. In that form, it is particularly toxic to children, especially those age 6 and younger, who may inadvertently inhale or ingest it. According to the Centers for Disease Control and Prevention, there are at least 4 million households in the United States that have children living in them who are exposed to high levels of lead. In addition, there are approximately 500,000 children ages 1-5 in this country with blood lead levels above 5 micrograms per deciliter, which is the reference level at which the CDC recommends the initiation of public health actions.

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In California, a landmark case was decided in December 2013 in which a California Superior Court judge in San Jose ruled that three major current or former paint companies – Sherwin-Williams Co., NL Industries Inc. and ConAgra Grocery Products Co. – must contribute $1.1 billion to a fund that has been earmarked for cleaning up the hazardous substances present in lead paint in hundreds of thousands of homes in California. According to the Wall Street Journal, the three firms would have to decide among themselves how to apportion the cost of the program that has come about as a result of the lawsuit. The lawsuit was filed by 10 city and county governments in the state, including San Francisco, Alameda and San Mateo counties.

The cleanup plan does not mandate removal of all lead paint from homes, but it does require work to remove lead from household areas such as window frames and doors where friction may lead to the release of lead dust or chips.

Continue reading "Hazards from Lead-Based Paint Must Not Be Overlooked in Landlord-Tenant Law" »

Working With and Protecting Whistleblowers, Bringing Down Schemers Who Defraud the Government and Its Citizens

August 4, 2014 by Gregory J. Brod

Imagine starting a new job. You’ve probably left behind another job and made other changes to prepare for the new experience, perhaps even relocating. No matter how experienced and educated you are, it is a nerve-wracking experience. It takes time to learn company practice. Now suppose you are asked to do something you know is wrong. What would you do? In the case of health care fraud and other forms of government contracting fraud our Northern California whistleblowers’ law firm helps people who find themselves in this situation, helping them report the wrongdoing while protecting their own interests.

False Claims Allegations Brought Thanks to Whistleblower and Supported by Another Inside Witness
Last week, an FBI press release detailed federal health care fraud charges filed against Jocelyn Gumila, a nurse who served as the manager for Doctor At Home (“DaH”). The release details allegations including double-billing, over-billing, and improperly certifying patients as eligible for home-based care. Doctor At Home allegedly helped home health agencies pursue false billings such as claims for more than $1,000 per month to provide nurse visits that were not medically necessary.

healthcash.jpgAn affidavit details interviews with one current and seven former DaH employees as well as company patients and their primary care providers. This included a physician’s assistant who reached out to investigators in January 2014. Additionally, a former company doctor, known as “Physician D”, had been independently recording concerning conversations and saving records like e-mails, claims data, and patient files. Physician D had only been working for DaH for a few weeks when she recorded a conversation where she told Gumila that several patients were not qualified for certain services. In reply, Gumila told Physician D to act as an “artist [and] paint the picture” of the patients so that Medicare would pay for the services.

According to the FBI, investigations revealed a number of other actions that Gumila allegedly took and that would violate Medicare rules, resulting in improper payments by Medicare to DaH. It appears clear the case could not exist without individuals willing to speak out. While press release provides more detail about Physician D, it appears a physician’s assistant is the realtor in this case, the whistleblower who initiated the case by coming forward with information. We applaud this move.

Protecting Whistleblowers & Stopping Fraud
When such individuals come to our whistleblower’s law firm in Oakland or our other offices, we make sure they receive all the protections provided by the law. The primary law used to prosecute these fraud cases is the False Claims Act. Section 31 U.S.C. 3730(h) protects realtors and others who help in the case from retaliatory employment actions due to their involvement. The statute provides double damages; for every dollar the employee lost due to the defendant “punishing” him or her for involvement, the defendant will owe the employee two dollars. Realtors are also eligible for very substantial rewards for their role in bringing and pursuing a successful case.

We will always consider the people who walk into our office and report fraud on the government to be brave. We want anyone considering taking that step to know we will support them and we will fight for their legal rights. Let us help you. Together we can pursue justice and recover government funds that are critical to all of our fellow citizens.

See Related Blog Posts:
The Experience of Whistleblowers
Addressing Medicare Fraud

(Image by Flicker user 401(K) 2013)

Lightning Strikes and California Injury Law

August 1, 2014 by Gregory J. Brod

Whether you find it beautiful, terrifying, or both, lightning is a “striking” example of nature’s power. Lightning can cause enormous property damages and it can also cause serious injury or even death. While you can’t sue Mother Nature for lightning injuries, there are sometimes individuals or entities that contributed to the danger. Our San Francisco lightning injury law firm can help victims pursue money damages and hold such entities responsible for their role in lightning tragedies.

Venice Beach Lightning Strike Injures 13, Kills 1
lightning.jpgAs CNN reported, people enjoying Southern California’s Venice Beach last Sunday saw their day quickly shift from relaxing and fun to frightening and deadly. A round of thunderstorms had been forecast and a lightning strike hit the water and beach at 2:51 PM. The bolt left 13 people injured; all had been in or near the water and 8 required hospital treatment. One additional person, a 20 year old man, was killed, although officials were not initially certain whether he died because of the lightning itself, drowned, or was trampled.

Lightning, Negligence, & Legal Liability
At first it might seem that a lightning strike victim would be without a legal recourse. Sometimes that holds true, but sometime there are potential avenues for civil liability. For example, a person or group may have failed to fulfill a legal duty to protect the injured person. In other cases, the potential defendant may have contributed to the possibility of a lightning injury. Examples of lightning strike cases that gave rise to civil claims include:


  • In July 2011, one Boy Scout was injured and another killed when they were struck by lightning in Utah. The Deseret News reported that their families filed suit asserting that Scout leaders failed to properly evaluate safety risks and had not received adequate training on recognizing and responding to weather emergencies. In addition to claiming the campsite was in an unduly dangerous location, the families blamed troop leaders for exposing the boys to danger by sheltering on a ridge rather than in a mess hall that was a mere 100 feet away.

  • In September 2011, a day after his 21st birthday, a lifeguard was struck by lightning and killed. The Tampa Tribune explained that he was hit while standing in shallow water and evacuating water park guests. His family filed suit, saying the park was negligent in failing to follow appropriate procedures and in delaying evacuations despite receiving warnings from lightning detection equipment. Additionally, the Occupational Safety and Health Administration fined the park for safety violations and failing to follow procedures, thus exposing workers to lightning dangers.

  • NBC news reported that a Texas man died when lightning sparked an explosion at his friend’s home in August 2012. His family sued, noting the fire marshal concluded the bolt burnt holes in piping that supplied gas to the home’s appliances. The suit was one of several, with outcomes on both sides, that claimed the manufacturer knew the product was unsafe.

  • Lightning struck an 11 year old boy during football practice at school in Fort Meyers, Florida during October 2012. He died a few days later. The Southern Baptist Press reported, that his parents sued the school and church sponsor for negligence. The claim settled with a portion of the funds going towards preventing future lightning tragedies using early detection equipment.

We did not find news reports on the resolution of several of the above claims, perhaps because they ended in settlement including confidentiality clauses. Still, they are just a few examples of lightning-related injury and wrongful death litigation and the fact that they made it beyond initial pleadings shows there is legal merit in the concept.

As the CNN report on the Venice Beach tragedy notes, lightning fatalities are relatively rare in California (note: Florida sees the highest number of lightning deaths, consistent with two of the four examples above coming from Florida). Still, lightning injuries and lightning deaths remain a danger everywhere. If lightning or another weather-related tragedy injured you or a loved one and you believe a negligent individual or group contributed to the event, you may have a civil claim. Call to arrange a consultation with our Northern California civil negligence attorney in Santa Rosa, San Jose, Oakland, or San Francisco.


See Related Blog Posts:
Wildfires and Your Homeowner’s Insurance Policy
Scrap Metal Fire Extinguished, But Noxious Effects May Linger

San Francisco Skateboarding Accident Attorney Protecting Skateboarders Injured by Negligent Drivers

July 30, 2014 by Gregory J. Brod

At The Brod Firm, we’ve found that people often make quick judgments based on a person’s choice of hobby or choice of travelling vehicle. Motorcycle riders are a prime example, with many assuming they are rough-hewn, “scary” individuals. Another example: Skateboarders. While some do take unnecessary risks, others enjoy the hobby and make every effort to skate smart. Too frequently, these individuals are put at risk by negligent drivers. When a skateboard accident stems from a driver’s negligent or dangerous decisions, our Northern California skateboard accident lawyer is here to help.

15 Year Old Skateboarder Seriously Injured in Fremont Collision
This week, CBS’s San Francisco Bay affiliate reported on a skateboard-vs-car collision that left a teenage boy seriously injured. The 15 year old was riding near Lake Elizabeth in Fremont on Monday afternoon. At approximately 4:50 PM, he attempted to cross Paseo Padre Parkway at Baylis Street when he was hit by a Toyota sedan. The teen, who was taken to an area trauma center, suffered major injuries that thankfully were not deemed life threatening. The Toyota’s driver remained at the scene and cooperated with authorities. Pasedo Padre Parkway remained closed until around 9:30 P.M. Authorities are continuing to investigate the cause of the collision.

Skateboarding Fatality Statistics
Skaters for Public Skateparks, a non-profit group that advocates for safe and accessible skateparks, publishes an annual list of individuals who lost their lives while skateboarding in the United States. Published in February 2014, the 2013 Skateboard Fatalities page notes 21 deaths, 19 of which occurred on public streets (the other two occurred on a golf course and a private parking lot). Two were listed as hit-and-run victims and the eldest victim (age 50) was hit by a police cruiser while riding for transportation.

skateboard.jpgNotably, the 2013 fatality figures marked a significant decline from the 2012 report which memorialized 30 skateboarding fatalities (including 2 deaths from accidents that had occurred the prior year), all of which occurred on a roadway and 24 of which were described as being struck by a vehicle. The 2012 figures also marked a decline from the prior year which saw 42 deaths. Discussing the list of losses, the group notes that the leading cause of death for riders is “bodily blunt force trauma” due to a collision with a vehicle, in one case a vehicle as small as a motorcycle. Fourteen of the deaths occurred in California. The deceased in 2012 included victims ranging from an 8 year old who rolled out of his driveway and onto the street to a 42 year old man described as a veteran skateboarder and skateboarding advocate who was hit by a vehicle while riding his skateboard to his parked car.

The Law, Liability, and Representation
California law typically requires skateboarders to ride on sidewalks and follow the rules applicable to pedestrians (see CHP’s Safe Skateboarding fact sheet). That said, simply being on the street does not make a skateboarder liable for any accident that may occur. If a car hits a skateboarder because the driver was not paying attention, the driver will generally be liable for the resulting injuries or death. Do not be intimidated by a defense attorney or insurance company. If a negligent or reckless driver caused a skateboarding crash that left you injured or claimed a loved one’s life, call our Northern California skateboard injury lawyer in San Francisco, Oakland, Santa Rosa, or San Jose. A consultation is always free and most injury cases are handled on a contingency fee basis so you only pay us if you get money.

See Related Blog Posts:
Motorcycle Accidents: Statistics & A Reminder of the Real-World Rule of Comparative Negligence

San Francisco/San Jose Motorcycle Lawyer on Overcoming Bias

Golf Cart Accident Spurs Family to File Product Liability Suit on Behalf of Victim

(Image by Naoki Tomeno)