Pedestrian Deaths Up By 35%

Recently, Smart Growth America released Dangerous By Design 2019, a report containing the results of their investigation of traffic accident data across the United States.  Smart Growth America is a non-profit organization that works with local and national governments and leaders to encourage safe development.

The report finds that pedestrian deaths on and around American roads increased 35% from 2008-2017. Pedestrian travel increased less than 1% during the same period.  Why are pedestrian deaths rising at such an alarming level, while the number of people walking is remaining essentially flat?

Why Is It Getting More Dangerous to Walk?

The Smart Growth report points the finger squarely at poor road design:

“Our federal policies, standards, and funding mechanisms that have been in place for decades produce dangerous roads that prioritize high speeds for cars over safety for all people.”

So where are the most dangerous places in America to talk a walk? Florida tops the list with a whopping 7 communities landing in the top 10 most deadly.  Our own Bakersfield, California is listed as the 7th most dangerous community overall.  Smart Growth reports that communities of older Americans, people of color, and low-income residents are the most affected by unsafe road design.

What Can We Do?

What can be done to push back against road designs that put pedestrians at risk?  Lawsuits against governments that design or approve unsafe road plans can be powerful tools.  But government immunities from criticism by lawsuits, such as “design immunity” in California, put up steep obstacles to such claims.  Design immunity prevents a government from being held liable for many discretionary decisions made by government officials.

It is recommended that if you or a loved one have been injured in a way that might suggest road design is even partially to blame, that you consult with a Pedestrian Injury Attorney, or Defective Road Design Attorney immediately, such as the attorneys at our law firm.

See the full report for a complete listing of the most dangerous communities in America for pedestrians, the most vulnerable populations, and an interactive map of the data collected by Smart Growth.

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Federal Tort Claims Act and the Feres Doctrine

Suing the Federal Government for negligence can be a daunting task. There are very strict requirements that you must follow in order for your rights to be protected. Our experienced attorneys are here to help.

Under the Federal Tort Claims Act, an individual may file a lawsuit against the federal government for injuries incurred as a result of the negligence of a government employee. In Feres v. United States, the Supreme Court concluded that members of the United States armed forces could not bring a claim under the FTCA for injuries related to their military service. (Feres v. United States, 340 U.S. 135, 138 (1950).) It is important to note that the Feres Doctrine only applies to active duty military members. It does not apply to claims brought by military spouses, dependents, or retired military personnel for injuries suffered as a result of the negligence of a government employee. Several cases have applied the Feres Doctrine to expand its scope and further limit the rights of active duty armed forces personnel when they have been injured by the negligence of government employees at military hospitals.

A lawsuit filed on behalf of an active-duty nurse who died after giving birth at a naval hospital intends to change that. In 2015, Walter Daniel filed a wrongful death lawsuit on behalf of his wife, Rebekah Daniel. In the lawsuit, Mr. Daniel alleges that the medical staff at Bremerton Naval Hospital were negligent in caring for his wife when she began experiencing significant post-partum hemorrhaging. The Western District Court of Washington dismissed the lawsuit citing the Feres Doctrine. Mr. Daniel appealed the decision to the Ninth Circuit Court of Appeals. The Ninth Circuit affirmed the District Court’s ruling concluding that the “case was barred by the Feres Doctrine” because the injury was “incident to [her] service.” (Daniels v. United States, 889 F.3d 978, 982 (2018).) The Court further stated “[i]f ever there were a case to carve out an exception to the Feres doctrine, this is it. But only the Supreme Court has the tools to do so.” (Id.)

After a rehearing in front of the Ninth Circuit was denied, Mr. Daniel set out to determine if the Supreme Court would do just that – carve out an exception to the Feres Doctrine and allow him to pursue justice for his deceased wife. Mr. Daniel has filed a petition to have the Supreme Court of the United States review his wrongful death lawsuit.  It remains to be seen if Supreme Court of the United States will grant the petition and reconsider this archaic judicial doctrine. You can follow the Supreme Court and read its opinions at https://www.supremecourt.gov/opinions/slipopinion/18.

Our attorneys have successfully litigated multimillion dollar Federal tort cases against the United States government under the FTCA. If you are a military spouse, dependent, retired military personnel, or your child was injured at birth in a government hospital, you may be entitled to compensation. Please contact Mulligan, Banham, and Findley to speak with a lawyer about your rights.

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The most devastating fires in California’s history are still burning at the Camp Fire in Northern California and the Woolsey/Malibu Fire in Southern California —yet already there is talk about changes in California laws regarding fire liability. While consumer advocates will struggle to revoke the utilities’ ability to pass on the costs of fires, it is expected that utilities will seek immunity to further limit their exposure to liability.

Mulligan, Banham & Findley are investigating claims about the recent California fires. Call the number on this page, or use our Contact Form, to tell us about your experience.

Threatening to declare bankruptcy after PG&E was found responsible for previous fires, this utility company spent over $10.5 million dollars just last year lobbying the state legislature[i] with the hope of currying favorable laws. It is reasonable to assume their lobbying efforts are not at an end, and in fact, they will probably step up their efforts.

In response to lobbying, earlier this year, the California legislature enacted Senate Bill 901.  Unless amended, starting in 2019, this new state law will, under certain conditions, pass the expense of fire liability costs on to consumers and allow utilities to sell bonds to offset fire liability costs. While this new legislation won’t affect liability for the pending fires, it will give utilities a possible pass for future calamities. Before it even comes into effect, this new legislation should be amended to prevent utilities from passing the costs on to consumers.

Utility companies balk at California courts using a “strict liability” approach to hold utility companies accountable for fires caused by their equipment, regardless of negligence in maintaining the equipment. Why? Because electricity is inherently dangerous and it is well established that utility lines must be properly maintained and surrounding trees and vegetation must be frequently cleared away from power lines or devastating fires can occur. [ii]

Preliminary investigation reveals PG&E utility’s role in triggering the pending Camp Fire. This devastating fire obliterated much of Paradise and devastated surrounding Butte County, resulting in over 63 deaths, 631 or more people still missing and the destruction of over 7,600 homes–as of the time of this blog post.  What did PG&E do… or more accurately, what didn’t this utility do that contributed to the fire? The utility company neglected to clear trees that were interfering with lines, as required by law.   Just fifteen minutes before the blaze erupted, PG&E reported a power outage on an electrical transmission line in the immediate vicinity of where the fire sparked. While PG&E evaluated whether to shut down power lines in the area, it neglected to do so. To literally add insult to injury, PG&E is grossly underinsured with approximately $1.4 billion for the pending fiscal year, while some estimates for the Camp Fire exceed $15 billion dollars,[iii] or more than ten times the available insurance coverage.

Similarly, the massive Woolsey fire in Southern California was also apparently triggered by failure to clean up a contaminated utility subsite as previously contractually required. [iv]  The fire reportedly began about 1000 yards away from the site of a 1959 partial nuclear meltdown of a reactor, on property located at Santa Susana Field Laboratory (SSFL or Rocketdyne).  Two minutes before the Woolsey fire began, Southern California Edison reported an outage at its Chatsworth substation which is located at the SSFL complex, just a few hundred yards from the site of the previous partial nuclear meltdown.  This substation was originally built to provide electricity from the reactor. Just last year, the U.S. Department of Energy, NASA and the Boeing Company signed binding agreements to clean up this  contaminated SSFL site but never took any steps to do so.  While the investigation is ongoing, some maintain that the “Woolsey Fire likely released and spread radiological and chemical contamination that was in SSFL’s soil and vegetation via smoke and ash,” according to Dr. Bob Dodge, president of Physicians for Social Responsibility-Los Angeles. While all wildfire smoke can be hazardous, independent testing and air monitoring is pending to prove whether the Woolsey fire released radiation and other hazardous chemicals into the air, contributing to the fire as well as increasing risks to the public from toxic air contamination.

Given predictions for continuing Santa Ana winds and more fires in California’s future, the worst is yet to come. Unless the utility companies who contribute to devastating fires are held accountable to the families who lost lives and homes, there is no incentive for the utilities to change their ways.

If you have been affected by the California wildfires, read more HERE on how we can help. 

Janice F. Mulligan

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[i] Maclachlan, Malcolm. (November 14, 2018) “Legislators to Take Up Fire Liability”  Los Angeles Daily Journal p 1

[ii] California Public Resources Code 4292, 4293 , 4435 General Order No 95(above ground electrical wires) and 165 (inspection cycle)

[iii]  Franck, Thomas (November 15, 2018) “PG&E Has Lost Half its Value This Week as Shareholders Fear utility’s role in California Wildfires”. CNBC     https://www.cnbc.com/2018/11/15/pge-has-lost-half-its-value-as-shareholders-fear-its-role-in-ca-fire.html

[iv] Duffield, Denise (November 12, 2018) “Massive Woolsey Fire Began on Contaminated Santa Susana Field Laboratory, Close to Site of Partial Meltdown” Physicians for Social Responsibility

https://www.psr-la.org/massive-woolsey-fire-began-on-contaminated-santa-susana-field-laboratory-close-to-site-of-partial-meltdown/

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Unfortunately, it has been a record time for fires all over California.  We all worry about the safety of our families, followed by fear over safety of our homes and businesses. When we pay for insurance, we shouldn’t have to also worry about being paid for our losses…or do we?

We help people all over California. If you or your loved ones have been denied lawful payment for your loss by your insurance company, please call us. Insurance companies have a duty to us, their insured policyholders, to act in good faith when responding to claims for settlement to cover our fire losses.

What Do I Do if I Suffer a Fire Loss?

  • IF YOUR LOSS IS FROM A FIRE IN AN AREA WHERE THE GOVERNMENT HAS CALLED A STATE OF EMERGENCY, you are entitled to an advance on living expenses for covered losses, to get you settled immediately after the loss– even before you submit receipts and document expenses.

 

  • Ask your insurer for a list of what living expenses will be covered, and be sure to keep receipts for them.

 

  • You will then be required to submit a claim and proof of loss, and coverage for additional living expenses shall be for a period of up to 24 months or up to your policy limits.[i]

 

  • For any fire loss, call your insurance company as soon as you have a covered loss. Note the date, time of your call and with whom you spoke. Confirm all conversations in writing (an email or letter). Request:
    • A full copy of your insurance policy, including all riders, updates, exclusions and the declarations page.
    • Any information they will require you to file to submit a claim.

 

  • Take pictures of all of your losses and keep proof of costs and replacement costs and all out of pocket expenses, including receipts, estimates for repair or replacement. Note: Your insurance company cannot make unreasonable demands on you for proof of your loss.  [ii]

 

  • Send your insurance company a written claim with proof of losses as soon as possible (and keep a copy of it all!) Important: Your insurer must tell you all deadlines that apply to your claim. [iii] If you miss the deadlines, you may lose all rights against the insurance company to be paid.

 

  • Keep a log of all communications with the insurance company (including the date and time of the communication, whom you spoke to and what was said). Confirm it in an email.

 

  • If you are unsatisfied with the handling of your claim, the amount offered for your losses by the insurer, or if the claim is denied, speak with an experienced attorney immediately. If you do not file suit within one year, you may lose all rights for compensation.

What Does the Law Require of My Insurance Company Once I File a Claim?

 

  • When investigating the claim, your insurer has a duty to diligently search for and consider all evidence that supports coverage of your loss. If your insurance company does not do this, call an experienced California lawyer immediately because you may have a claim for the implied covenant of good faith and fair dealing based on the insurer’s failure or refusal to conduct a proper investigation of your claim.

 

  • California courts have held that to fulfill its obligation to you, the insurance company must give at least as much consideration to your interests as it gives to its own interests. If the insurer seeks to discover only the evidence that defeats your claim, then it is holding its own interest above that of you, its insured, and it will be liable to you for your losses. [iv]

How Much Do I Need to Cooperate With My Insurance Company’s Investigation?

  • You must cooperate with the insurer’s investigation of your claim, but you do not have any duty to cooperate with harassing adjusters or unreasonable requests. If you feel wrongfully pressured, request the adjuster to communicate in writing with all questions they have for you and then promptly respond in writing, or seek an attorney’s advice.

 

How Much Time Does My Insurance Company Have to Investigate My Claim?

  • Your rights are initially protected only once you file a written claim with your insurance company, and then only until they either agree to pay or they deny your claim. Do not wait- file the claim as soon as possible, and if you do not file it within the time allotted, you may lose all rights to be paid for your losses, no matter how bad your losses or how unreasonable the insurer may be in responding to you.[v]

 

  • Once you file a written claim under California law, you are entitled to prompt and timely responses from your insurer.  The company must respond to your communications within 15 calendar days and give you a complete response based on known information. This includes answers to your questions.[vi]

 

  • In California, insurance companies are required to accept or deny your claim within 40 calendar days after receiving proof of your claim.

 

  • If an insurer denies or rejects your claim for fire loss, it must do so in writing and shall provide you a statement listing all of the reasons for such rejection which is then within the insurer’s knowledge.

 

  • If your insurer needs more time to consider your claim, it must give you written notice of the need for additional time, including any additional information the insurer requires in order to make a decision and any reasons for the insurer’s inability to make a determination and provide you with an estimate as to when the determination can be made.

 

  • If your claim is accepted, payment must be made within 30 days from the date settlement was reached.

 

  • In California, insurance companies have a duty to properly investigate your claim for compensation for loss due to fire. If your insurance company acts unreasonably in the investigation of your claim, you may be able to recover money for losses caused by the delay in paying you fully for your losses.

 

  • If your claim is denied or insufficient payment is offered, do not delay in hiring an experienced California lawyer. A lawsuit must be filed within one year of the denial of the payment or you will lose all rights to payment from the insurer.

What Does it Take to Win a Lawsuit Against My Insurance Company?

 

To win your case, a lawyer will have to establish that the insurer acted unreasonably (without a good reason) by failing to properly investigate your claim. What does this mean? To establish this claim against your insurance company, a lawyer will need to prove all of the following:

 

  • You suffered a loss covered under an insurance policy;

 

  • You properly presented a timely claim to your insurance company;

 

  • Your insurance company failed to conduct a full, fair, prompt, and thorough investigation of your claim;

 

  • You were harmed by this denial or delay in paying you fully for your claim; and,

 

  • Your insurer’s failure to properly investigate your claim was a substantial factor in causing you harm.[vii]

If I Hire a Lawyer, What Can I Hope to Recover in My Claim Against the Insurer for Bad Faith Denial of My Claim?

Depending on the facts of your claim, you may be entitled to recover:

  • Full value of your covered losses.
  • Out of pocket expenses reasonably incurred because of the insurer’s unreasonable delay/denial of benefits.
  • Costs of your lawsuit, including attorney’s fees and court costs
  • Damages for anxiety and emotional distress caused by your insurer’s unreasonable delay or denial of benefits.

If you have been denied coverage for your fire loss by your insurer, call an attorney immediately.

MULLIGAN, BANHAM & FINDLEY have successfully battled large corporations and insurance companies seeking to deny just compensation for losses.  Call us or use the contact form on this page today.

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[i]  Cal. Ins. Code Section 2051.5

[ii] Cal. Ins. Code Section 790.03

[iii] Cal. Ins. Code Section 2071 and Cal Code of Regs Section 2695.7

[iv] Mariscal v. Old Republic Life Ins. Co. (1996) 42 Cal.App.4th 1617, 1620, Jordan v. Allstate Ins. Co. (2007) 148

Cal.App.4th 1062, 1066

[v] Cal. Ins. Code Section Section 790.03

[vi] Cal. Code of Regs Section 2695

[vii] CACI No. 2332. Bad Faith (First Party)—Failure to Properly Investigate Claim Judicial Council of California Civil Jury Instructions (2017 edition)

 

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We are years away – decades, probably – from self-driving cars comprising the majority of the vehicles on our roadways.  Until then, we will have to put up with a mix of human-piloted vehicles and autonomous ones, in varying stages of testing and refinement.

As it is, nearly 40,000 people die every year in automobile crashes on U.S. roads.  Vastly more are injured.  And given the small amount of autonomous vehicles on the road now, it’s safe to say that nearly every one of these crashes are caused by people, crashing into people or other objects.  The promise of bringing these numbers down is the primary argument of advocates of robotic cars.

And it is a compelling argument.  Once the cars are all communicating with each other, using microchips and wireless tech over simple turn signals, they will bump into each other less, right? They will operate more like cars on a train than… thousands of individual trains, right?

Yes, it makes sense that once all, or the vast majority, of cars are replaced with self-driving ones, the roads are going to get much safer. But what happens in the meantime?

A Different Kind of Driver

There is a concern that, as our highways become testing grounds for robotics technology firms, injury and fatality numbers may increase.  And the basis for that is not just that the robot cars will malfunction.  Though they have, and they will.

No, the curious twist is that autonomous cars are getting into crashes at a significant rate, even when fully functioning and obeying all traffic rules.  The implication is that the crashes are being caused precisely because the cars are obeying every rule.  And humans don’t expect it.

Sure, it’s better to program these cars on the safe side, leaning more toward stopping for no good reason, than accelerating through a crowd.  But, right or wrong, human drivers expect a more subtle approach to the rules:  Acceleration through a yellow light; rolling through a stop; speeding to pass.  Humans certainly do not expect a car at full speed to stop in the middle of the road, for no reason, “just in case.”  But that is exactly what some self-driving cars are doing.  Data from the California DMV supports the conclusion that autonomous cars are making too many unexpected stops:  When self-driving cars crash, they are most frequently rear ended.

These reports and others on autonomous vehicle crashes are collected by the California government, where much of the testing has taken place.  Kyle Vogt, co-founder and CEO at Cruise (Chevy’s self-driving project) is reported in this month’s Wired as saying the crash reports make clear that humans expect other humans to bend or break traffic rules. But his robots won’t follow suit:

“We’re not going to make vehicles that break laws just to do things like a human would.  If drivers are aware of the fact that AVs [autonomous vehicles] are being lawful, and that’s fundamentally a good thing because it’s going to lead to safer roads, then I think there may be a better interaction between humans and AVs.”

 

Labeling the Experiment

If we know robots drive differently than humans, and we aren’t going to change the robots, then a good start to helping humans know what to expect would be regulations requiring clear marking of autonomous vehicles.  On all sides. We know that the big rig in front of us makes wide right turns because it tells us, with a sign.  We know the postal jeep in front of us may stop at any given house because it is painted like a post office vehicle.  By contrast, many self-driving cars are indistinguishable from human-driven ones.  If the public has been involuntarily drafted as subjects for a decades-long robotics experiment on our roads, the least we deserve is notice when one is driving in our midst.

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Palomar Medical Center in San Diego has just announced that the personal information of 1,300 patients was breached by an employee.  The personal information includes, name, date of birth, gender, medical record number, diagnosis and other information.  Some patients have had their health insurance information, financial data, social security and driver’s license numbers accessed.

A news story reporting the breach is here.

If you received a notice from Palomar Medical Center of this data breach, or you believe that your medical records or personal information was disclosed without your permission, you may be entitled to compensation. Call our office at the number below to discuss your rights.

For further information on your rights when a hospital fails to protect your personal information, click here: JanMulligan.com:  Your Rights In Data Breach Cases.

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California penalizes hospitals for preventable errors, through the only program of its kind in the nation.  But the program has failed to make a significant difference in curbing mistakes, the Union Tribune reports.  UT reporter Paul Sisson has some excellent tips on how YOU can protect yourself when seeking medical care:

[View the full article]

“* ALTERNATIVES: Inquire about better alternatives to the procedure you’ve been recommended. Visit choosingwisely.org for information about which treatments may be unnecessary.

* HIGH VOLUME: Choose a hospital, whenever possible, that performs a high volume of the procedure you need to undergo. Studies show such places and physicians tend to have better outcomes for that procedure.

* VACCINATIONS: Verify that your vaccinations are up to date before you’re admitted to the hospital.

* CURRENT MEDICATIONS: Tell your doctor, nurse, pharmacist and anyone else involved in your care about what medications you’re taking. Arrive at the hospital with your full list of drugs and be honest about any other self-medication. That includes dietary supplements, vitamins, herbs and recreational drugs.

* ALLERGIC REACTIONS: List any medications you shouldn’t take because of reasons such as allergic reactions or other known adverse outcomes.

* LABELING: Make sure all medicines you receive in the hospital — including through syringes, tubes, bags and pill bottles — have labels. Don’t be afraid to read these labels to see if they match what your physician prescribed.

* HAND-WASHING: Ask caregivers to wash their hands before they tend to you, if they haven’t done so. Unwashed hands are a main way of spreading infection in hospitals.

* CHECKLISTS: Find out whether your surgeon uses a checklist for your operation. Research shows that such checklists, even simple ones that include steps for preventing infection, can significantly lessen the error rate.

* SURGERY SITE: Confirm with nurses, imaging technicians, anesthesiologists and your doctor that they have correctly identified the part of your body targeted for a procedure. For example, all of your caregivers should agree on which kidney, knee or arm is slated for surgery. One common step is for the surgeon to sign his/her name on the area targeted for surgery.

* CATHETERS: Request an update each day on when your central-line or urinary catheter can be removed. Studies show that catheters, a prime source of infection, are often left in place long after they’re no longer needed.

* BEFORE YOU LEAVE: Go over all medication instructions before leaving the hospital.

* ASK AWAY: Ask as many questions as you need. If you don’t understand something your caregivers are about to do, speak up. Doctors, nurses and others should take action based on your consent.”

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There is an epidemic of cyber security breaches of consumer’s personal information- no doubt about it. At a fast and furious pace, cyber attacks on hospitals are seemingly coming from anywhere and everywhere. With each breach, hackers’ show increasing boldness and sophistication. Health systems have become a one-stop shop for cybercriminals who not only steal valuable credit card information, but also access even more lucrative confidential patient information. Unlike a credit card that can be cancelled, when personal health information is stolen, the stolen information is at risk of being used illicitly for the rest of the victim’s life because it contains valuable identifying information (such as social security number, birth date, employment record, family member medical history, genetic information and personal health history).

How much information is being stolen?  One recent example involves Banner Health. Over 3.7 million of Banner’s health plan members’ sensitive patient information and valuable payment card information was hijacked. Banner is only one of at least 13 reported health information data breaches that occurred in the single month of August, 2016. The numbers of patients’ personal information being hacked are staggering: For example, 655,000 Bon Secours patients were also exposed to a data breach within just days of the Banner breach.

The number of patient records violated by these recent breaches still pales in comparison to the potential number of overall health records that can be hacked in one fell swoop: In the largest healthcare breach to date, 80 million personal records were stolen from Anthem in 2013, occurring just shortly after the FBI warned that hackers are now targeting health care.

These health care providers are not alone: There have been four reported cyber-thefts of Kaiser Permanente members’ records in the last five years. Healthcare has taken the lead for the most frequently targeted industry for cyber attacks cyber attacks, (edging out even the banking industry.)

No one is immune: Every industry, person, company, and government is at risk for a cyber attack. Over half a billion personal records were stolen or lost in 2015, ransomware increased by 35%, and 9 mega-breaches occurred. Soberingly, most companies are still not reporting the full extent of their security breaches, likely due to commercial reasons. Cybercriminals function in a myriad of ways from infiltrating and paralyzing entire systems and holding them for ransom, to stealing personal data and selling it in an underground market. As economic and political opportunities continue to flourish around breached cybersecurity, so too have the opportunities in the healthcare setting.

What can a consumer whose information has been cyber-stolen do about it? For a long time, there was no remedy. Fortunately, times are changing and there are potential remedies available:

  1. California Medical Information Act

California has one of the more progressive state laws protecting consumers. California Medical Information Act (CMIA). California Civil Code Section 56 et seq. provides:

“No health care provider can disclose or release medical data about a patient without authorization.”

A $4.1 million dollar settlement was paid by Stanford Hospital after 20,000 patients’ bills with sensitive, private patient information was posted online.  The data was posted by Stanford’s business partner it contracted with for purposes of the patients’ emergency room bills.

Settlements under the CMIA are not always a “slam dunk” when cyber hacking of patient records occurs. The California Court of Appeals has attempted to limit liability under the CMIA in the following ways in order for a consumer to win under the CMIA :

     (a)     Disclosure of “individually identifiable information” has been required, such as the patient’s medical history, (such as mental or physical condition) or treatment. Eisenhower Medical Center v. Superior Court (Riverside County) 226 Cal.App.4th 430 (2014).

     (b)     Negligence. While some courts have required proof of negligence, the CMIA does not expressly require this. The California Supreme Court could well find that based on the legislative history, this is a strict liability statuteIn the mean time, negligence may not be difficult to prove. The U.S. Food and Drug Administration (FDA) has found that the most common causes of medical records being hacked include lax password distribution, disabled, weak and/or absent passwords, lack of updated security software and lack of encryption. Who can argue that such rookie moves in the handling of voluminous and sensitive patient information is not negligence? In fact, criminal recklessness comes to mind!

     (c)     Proof: Unauthorized person actually viewed the medical information: It is this proof that an unauthorized person actually viewed the information that has been most difficult for a consumer to establish.  For example, in Regents of the University of California v. Superior Court, 220 Cal. App.4th 549 (2013), a UCLA physician’s laptop containing thousands of patients’ electronic charts was stolen.  Because the patients couldn’t allege that the data was illegally “disclosed” after it was stolen, the case was kicked out. Left uncertain after the UCLA case was whether proof of disclosure was enough for a lawsuit to go forward. While the California Supreme Court has yet to rule on the issue, another Court of Appeal case holds that even disclosure alone isn’t sufficient: a plaintiff must prove that the “stolen medical information was actually viewed by an unauthorized person.” Sutter Health v The Superior Court of Sacramento County (Atkins), 227 Cal.App.4th 1546 (2014). The court held that mere possession of medical information or records by an unauthorized person was insufficient to establish a breach of confidentiality if the unauthorized person has not viewed the records.

All is not lost for consumers: There the California Supreme Court has yet to rule on these issue, and the California Supreme Court could well find that the legislative history imposed no such restrictions on recovery.  Further, as outlined below, federal lawsuits have eased requirements for similar lawsuits.

  1. Federal Class Actions

Recently, there have been pro-consumer decisions rendered by multiple federal Courts of Appeal in consumer class actions.

For example, in September, 2016, the United States Court of Appeals held in Galaria v. Nationwide Mutual Insurance Co. __F.3d. __ (6th Cir. 2016) that where a data breach targets personal information, a reasonable inference can be drawn that the hackers will use the victims’ data for the fraudulent purposes alleged in Plaintiffs’ complaints. The court reasoned that where Plaintiffs already know that they have lost control of their data, it would be unreasonable to expect Plaintiffs to wait for actual misuse—a fraudulent charge on a credit card, for example—before taking steps to ensure their own personal and financial security….Where the Plaintiffs allege they and  other putative class members must expend time and money to monitor their credit, check their bank statements, and modify their financial accounts, these costs are a concrete injury suffered to mitigate an imminent harm, and satisfy the injury requirement.

Similarly, the court in Remijas v. Neiman Marcus Group, LLC, 794 F.3d 688 (7th Cir. 2016) reasoned: “[w]hy else would hackers break into a store’s database and steal consumers’ private information? Presumably, the purpose of the hack is, sooner or later, to make a fraudulent charge or assume those consumers’ identities.”  This is consistent with the Court of Appeal’s rationale in Lewert v. P.F. Chang’s China Bistro, Inc., 819 F.3d 963 (7th Cir. 2016), where restaurant customers’ credit-card data was stolen in a data breach, because a “primary incentive” for a breach is to commit fraud.

Closer to home, the Ninth Circuit (which includes California) similarly found standing in Krottner v. Starbucks Corp., 628 F.3d 1139 (9th Cir. 2010), where employees brought suit after a thief stole a company laptop containing their personal information.

Not all federal Court of Appeals decisions are in favor of consumers on this point.  The Third Circuit reached a different conclusion in Reilly v. Ceridian Corp., 664 F.3d 38 (3d Cir. 2011). In Reilly, a hacker broke into a payroll processor’s network, but it was not clear “whether the hacker read, copied, or understood” the personal data stored on the system.  The plaintiffs whose data was in the system alleged an increased risk of identity theft, but the court concluded that the injuries were too speculative because there would be an injury only, “if the hacker read, copied, and understood the hacked information, and if the hacker attempts to use the information, and if he does so successfully.”  The Third Circuit also distinguished the case from data-breach cases where courts found standing: “Here, there is no evidence that the intrusion was intentional or malicious.”

The pro-consumer decisions in the federal courts may conceivably open the way for similar findings in class actions under the California statute, and the California statute provides for penalties of $1000 per person in addition to actual damages (such as costs associated with changing bank accounts, freezing credit etc.), and the defendant would have to pay all attorney’s fees.

Stay tuned as the state and federal courts scramble to keep up with the raging technological advances that allow cyber-thieves to remotely and repeatedly steal your most cherished private information with the click of a mouse.

If you or someone you know has had their personal medical information or other personal data stolen by a cyber attack in California, please contact us using the button at the bottom of this page, or call 619-238-8700.

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DSC_0458In an article published August 19, 2016, the LA Times reports on the proliferation of “stem cell clinics” in America. The Times finds that the treatments – which generally consist of injecting patients with stem cells drawn from their own body fat – are expensive and unproven. The concern is that these treatments are marketed with heavy-handed tactics by some clinics to the most vulnerable in our society, those with degenerative, disabling or incurable diseases.  Clinics promise treatment or cures for patients’ ailments with no proof that the treatment is safe or effective, no FDA approval, and a price tag in the thousands, or tens of thousands of dollars.

The article quotes Mulligan, Banham & Findley founding partner, Jan Mulligan, on the firm’s current class action investigation into these clinics:

“Stem cell scientists include the best and the brightest doing great work, and I admire them…. At the other end of the scale, there’s snake oil.”

The article also draws from a recent “stem cell tourism” study by UC Davis stem cell scientist Paul Knoepfler, and bioethicist Leigh Turner of the University of Minnesota. Their study found 570 U.S. clinics now marketing these unproven stem cell interventions, with “hot spots” in Southern California, Phoenix, New York, San Antonio and Austin, Texas.

See the full LA Times article here.

Our firm continues to investigate this important issue, including claims of false advertising, violations of consumer protection statutes, fraud and misrepresentation by stem cell clinics.  If you feel you were harmed or misled by a stem cell clinic in California, please contact us using the button at the bottom of this page, or call 619-238-8700.  See this page for more information.

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heading_departmentEight California hospitals were fined a total of $483,650 for serious issues in patient care, according to a report released Thursday.  The fines, levied by the California Department of Public Health, came after the Department’s investigations discovered non-compliance with licensing requirements which “caused, or was likely to cause, serious injury or death  to patients.” The fines ranged from $47,025 to $86,625 per hospital.

Administrative penalties are issued to hospitals under authority granted by California Health and Safety Code Section 1280.1. Newly adopted regulations allow the Department to assess an administrative penalty for incidents occurring on or after April 1, 2014, against a specified licensee for a deficiency constituting an “immediate jeopardy” violation up to a maximum of $75,000 for the first administrative penalty, up to $100,000 for the second, and up to $125,000 for the third and every subsequent violation within three years.

San Diego’s Vibra Hospital was among those fined.  Vibra was fined $47,025 in connection with a patient’s brain damage and death in 2014, attributed to staff ignoring signs and alarms that should have alerted them that a breathing ventilator had become disconnected, as reported by the San Diego Union Tribune.  A full report of the incident can be found on the Department of Public Health’s website.  The fine was noted as the hospital’s first “immediate jeopardy” administrative penalty since the program began. Vibra was also required to submit a “plan of correction” to California’s health regulators.

Licensing requirements exist to protect us from the increasingly consolidated, powerful, and for-profit medical industry.  As patient-advocates, and members of the community, we applaud these recent regulatory measures by the Department of Public Health.  At the same time, we question whether a $47,025 penalty for a preventable injury that ended a patient’s life sends a strong enough message of the value we place on patient safety.  Ultimately, it is not the amount of a single fine that will keep us safe. Safe care is brought about by long-term attention and support from consumers — and voters — for vigilant oversight of the medical industry.

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