Prop. 46 Targets Caps On Punitive Damages in CA Medical Malpractice Cases

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This November 4th, California voters will have the chance to vote on Proposition 46, known as the Medical Malpractice Lawsuits Cap and Drug Testing of Doctors Initiative.

In 1975, California Governor Jerry Brown signed the Medical Injury Compensation Reform Act (MICRA). MICRA capped non-economic damages for pain and suffering in medical malpractice lawsuits to $250,000. The measure passed because many legislators and physicians’ groups felt that massive lawsuit verdicts against doctors accused of malpractice dramatically increased malpractice insurance premiums, and ultimately affected the cost that patients had to pay for care.

If Prop. 46 is passed, California’s cap on non-economic damages (commonly known as punitive damages) will be raised from $250,000 to over a million dollars for medical negligence lawsuits. The increase in the limit on damages for pain and suffering reflects the amount of inflation from 1975 to today’s dollars. 

In addition to increasing the limit on punitive damages, Prop. 46 will also require that physicians submit to random drug and alcohol testing. This part of the measure ensures that doctors with substance abuse issues are not actively treating patients while impaired.

The measure would also utilize a state-wide database which logs the number and amount of prescriptions patients receive of certain drugs. Under the new system, doctors would check the state-wide database before prescribing narcotic painkillers to a patient. This process would, ideally, reduce the number of patients who abuse prescription painkillers by going to multiple doctors.

Supporters of this measure believe that raising the cap on punitive damages and requiring random testing would make doctors more responsible for malpractice mistakes without significantly increasing the costs of care for patients. Opponents believe the opposite, and argue that malpractice premiums would increase and that a statewide database could jeopardize the security of patient medical records.

No matter what your opinion is on Prop. 46, all Californians will have the opportunity to make their voices heard on November 4th. Learn more about the issue before you vote by visiting California’s Official Voter Information Guide

If you or your loved one has been injured by medical malpractice in California, Arizona, New Mexico or Utah, the experienced injury attorneys at Phillips Law Group are here to help. Call 1-800-706-3000 to set up your free initial consultation today!

GM Warns Corvette Drivers of Potential Legal Issue

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General Motors, under fire for multiple vehicle recalls over the past year, has a new issue to worry about in its Corvette sports car.

The Corvette, which retails at around $55,000, comes with a new safety feature called “valet mode,” which helps owners monitor their expensive vehicle while they are not inside of it.

Switching the vehicle to valet mode activates audio, video, and driving data recording systems which monitor the car. In addition, valet mode also keeps storage compartments and entertainment systems locked and turned off.

Valet Mode May Violate Wiretapping Laws

While this system may give Corvette owners peace of mind, and ensure that valets or other occupants are not out joyriding, General Motors did not consider the fact that 11 states, including California, prohibit secretly recording other people.

Federal law, and many states’ laws, allow for people to clandestinely record others without their permission. However, two-party consent states like California prohibit the taping or recording of any private or confidential conversations or actions. If a person could reasonably assume that what they are doing is private, for instance, parking an otherwise empty car, then it would be illegal to record that person without his or her consent. A person who turns on valet mode and secretly records another person could be liable for civil and criminal penalties.

In order to get around these laws, GM has issued a letter to drivers and dealers with instructions about the valet mode. The letter advises drivers to obtain the consent of passengers, valets, or other occupants who may be in the vehicle while valet mode is activated, or suggests keeping valet mode off. GM will also be releasing a software update in the coming weeks which may fix the problem

Vehicle Defects Can Lead to Accidents

The potential legal issues with the Corvette’s valet mode are not sufficient for the automaker to issue a general recall of the vehicles, unlike other problems which have plagued GM. The car company has recalled over 29 million vehicles worldwide for safety issues this year—most notably, major recalls after reports of engine shutoffs while driving caused by a defective ignition switch. This particular defect was linked to at least 13 deaths. 

Vehicle defects can lead to safety issues which cause or contribute to accidents. If you believe your auto accident was caused by an underlying defect, you may be able to file a claim for compensation for your injuries. Contact the Phillips Law Group by calling 1-800-706-3000, and speak with an experienced California personal injury attorney today!

FTC Issues Warning to Deceptive Advertisers

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FTC

The Federal Trade Commission announced today that it sent out a warning letter to more than 60 companies warning them of their failures to make adequate disclosures about their products in television and print ads. These letters went to companies who have advertised across the country, including at least 20 of the country's largest 100 advertisers. 

The FTC’s investigation, known as Operation Full Disclosure, focused on advertisements which concealed important consumer information in the fine print or in hidden parts parts of advertisements.

The FTC warned advertisers about specific problematic ads, as well as recommended that the companies review all other advertising to look for violations.  

Disclosures Must Be Noticeable

According to FTC regulations, disclosures in advertisements need to be close to the claims to which they relate—not buried in the background. Disclosures on television ads need to be on the screen long enough to be noticed, read, and understood, and should not be obscured by other elements of the advertisement.

Many of the objectionable ads quoted a price or free trial period for a product, but did not adequately disclose hidden conditions for receiving that price. Others did not disclose issues relating to the safety or legality of a service. Still others made false claims, or included a demonstration of a product that had been materially altered.

The warnings went out to companies who advertise all kinds of products in both English and Spanish. While the FTC did not name the businesses which received the warnings, the Commission’s press release about the subject should serve to put all advertisers on notice that disclosures must be clear and conspicuous.

Did a Deceptive Ad Lead to Your Injury?

The FTC works to ensure that advertisers are honest about the risks of their products. When a company fails to disclose known risks which could be dangerous to the consumer, that company is responsible for the subsequent harm its products caused.

From household products to pharmaceutical medications, the Phillips Law Group has worked to hold companies responsible for deceptive advertisements which harm consumers. If you have injured by a product with a deceptive or hidden warning, you may be eligible for compensation. Call 1-800-706-3000 to speak with the experienced California products liability attorneys at Phillips Law Group today. 

New Mexico Court of Appeals Rules Workers' Compensation Must Cover Medical Marijuana

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States around the country are grappling with changing legislation and social attitudes towards medical marijuana. In New Mexico, the state’s Court of Appeals added to the national conversation by decided that an injured employee was entitled to reimbursement for medical marijuana under the state’s workers compensation law.

Case Background

Gregory Vialpando sustained a lower back injury in 2000 during the course of his job at Ben’s Automotive Services.  Multiple doctors examined Mr. Vialpando, and found that he had sustained a whole body impairment between 43% and 46%, and had a 99% permanent partial disability rating. He and his employer entered into a workers’ compensation payment arrangement in 2008.

In reviewing his case, Mr. Vialpando’s main doctor found that he had, “High intensity, multiple site, chronic muscle, joint, and nerve pain directly resulting from back injury, followed by failed spinal surgery and attendant myalgia/myositis from compensatory structural imbalances.” In discussing Mr. Vialpando’s pain, the doctor went on to say that he was suffering from “some of the most extremely high intensity, frequency and duration of pain, out of all the thousands of patients I’ve treated within my 7 years of practicing medicine.”

Mr. Vialpando was prescribed multiple narcotic pain relievers and antidepressants, but still suffered from excruciating pain. Finally, he was prescribed medical marijuana which afforded him relief.

He applied to New Mexico’s Workers’ Compensation Board and asked for his medical marijuana expenses to be covered or reimbursed through his workers’ compensation payments. A Workers’ Compensation Judge (WCJ) held a hearing on the issue, and found that Mr. Vialpando was authorized to take part in a medical cannabis program authorized through by New Mexico’s Compassionate Use Act (Lynn and Erin Compassionate Use Act, NMSA 1978 §§26-2B1- to 26-2B-7 (2007)).

The WCJ ordered that Mr. Vialpando pay for his own medical marijuana, and ordered his employer to reimburse him for his expenses.

The employer appealed the decision of the WCJ to the New Mexico Court of Appeals.

Court of Appeals Decision

The employer first argued that medical marijuana was not covered by the workers' compensation statute. The Court looked at the statute, and found that it authorized “reasonable and necessary health care services from a health care provider.” 

The Workers' Compensation Administration (WCA) and the administrative judge in charge of the case both found that a Mr. Vialpando’s participation in a course of cannabis treatment would constitute reasonable and necessary treatment. The Court of appeals agreed. 

Next, the employer argued that a medical marijuana dispensary was not an authorized health care provider within the meaning of the statute. While the Court agreed that a dispensary is not listed as an articulated type of authorized provider, the Court found that the law does allow health care to come from “any person or facility that provides health-related services as approved by the director of the WCA.” Since the WCA had approved the treatment and the dispensary, the appellate court dismissed this argument. 

Alternatively, Mr. Vialpando's employer argued that medical marijuana should be viewed as a prescription drug, meaning that it would have to be provided by a licensed pharmacist or authorized health care provider. The Court of Appeals also disagreed with that argument, and found that even if marijuana were characterized as a prescription drug, it would still be covered as an authorized treatment or service under the Compassionate Care Act.

Finally, the employer brought up federal law, which still classifies marijuana as illegal under Schedule I of the Controlled Substances Act. The employer argued that providing reimbursements for the purchase of medical marijuana would be akin to forcing the employer to violate federal law.

The New Mexico Court of Appeals refused to consider this particular argument. The employer did not cite any specific law which providing reimbursement would violate, and pointed to the Department of Justice’s other advisories to states about the legalization of medical marijuana. The Court of Appeals found that the legislative intent of New Mexico’s lawmakers, as well as shifts in public opinion and policy weighed heavily on the side of allowing compensation for recognized medical treatment with cannabis.

Visit the New Mexico Court of Appeals website to read the full text of this decision. 

Phillips Law Group Will Fight For Your Right to Workers’ Compensation Benefits

At Phillips Law Group, we know that receiving the workers’ compensation benefits to which you are entitled can sometimes be an uphill battle. If your benefits, or a particular treatment, have been denied, you need experienced representation to appeal your case to the Workers’ Compensation Board.

Call (800) 706-3000 to speak with an experienced workers’ compensation attorney today. We will help you secure the justice you deserve after an injury at work. 

Arizona Ranked High in National Driver Safety Survey

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A new study by the Allstate Insurance company ranked the nation’s 200 largest metro areas in terms of drive safety.

While drivers in Fort Collins, Colorado came in on top for the second year in a row, Arizona drivers fared relatively well in the study, with several cities ranking in the top 50.

The East Valley region of the Greater Phoenix area boasts several impressively ranked cities. Mesa, Chandler, Tempe, and Gilbert all have the best ratings in Arizona. Nine of Arizona’s metropolitan areas rank within the top 80 spots.

The state's drivers may benefit from sunny weather for most of the year. Drivers here do not have to worry about accidents caused by snow and ice, which becomes a problem for drivers in northern states.

Arizona cities that made the cut of the top 200 areas include:

  • Gilbert—20th
  • Mesa—22nd
  • Chandler—31st
  • Tempe—33rd
  • Tucson—43rd
  • Scottsdale—45th
  • Peoria—47th
  • Glendale—65th
  • Phoenix—79th

While Phoenix is the lowest Arizona city on this list, another Allstate study looking at cities with a population of over one million people ranked Phoenix first for safety. That study found that the average Phoenix driver is in an accident every 9.5 years. In comparison, Boston drivers can expect to be in a collision every 4.4 years.  

Arizona’s driver accident statistics may be impressive, but collisions and injuries will always be a fact of life for even the most careful drivers. If you have been injured in an auto accident, you deserve to be represented by experienced and knowledgeable accident attorneys. Call 1-800-706-3000 to speak with the attorneys at Phillips Law Group about your accident claim today. 

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