On February 27, 2009 local chiropractor Steven Shaw, D.C., was hit with a multimillion-dollar verdict by the family of a local Las Vegan who died after a scuffle with the doctor at a local gas station. The civil trial is an example of a personal injury wrongful death case that is truly based on negligence. The issue of this discussion is to examine whether the case itself presents one of fairness. A jury trial that ended with a large verdict number in compensatory damages for the heirs of the deceased may be unjust. To figure this case out, a person must understand the legal principles of intent and causation. Conduct that is merely careless is considered negligent. Conduct that is willful is considered intended, and conduct that is done with a conscious disregard of a known risk is recklessness. The 3 tiers of conduct are important to understand because the consequences of civil punishment and compensation depend on what conduct occurred and therefore what compensation is owed.

Let’s take a look at the facts. It is a well-known fact that Dr. Shaw was responding to an emergency call from his wife where she allegedly cut off the deceased in a vehicle. It was clear that the deceased began the confrontation by getting angry with Dr. Shaw’s wife. Dr. Shaw then appeared at the scene and confronted the man. Words were exchanged and Dr. Shaw pushed the man into a steel caged fence near a propane gas storage tank. The contest has been argued unfair given the size and youth of Dr. Shaw verses the older man, a retiree. The man hit his head on the propane tank and died two days later. Was this negligent, reckless, or intentional conduct? The jury thought it was all 3. I disagree.

First, there is an issue as to why Dr. Shaw was first there. Why? To protect his wife—could the police have been called, sure, but hindsight is 20/20. The trial lasted a week. The 30-second ordeal was paraded for 7 days in a courtroom analyzing each move made by three emotionally distraught parties. Obviously, it is easy to Monday morning quarterback. Second, the issue is whether the conduct was negligent? It may have been. If a party was careless in the way the matter was handled, then the answer is sure. The best thing would have been to walk away from the scene. But did he feel threatened? Dr. Shaw is allowed under the law to protect another and especially come to the rescue of his wife. The difference between a car accident case and this one is that the conduct was meant to happen here. But did the man who felt cut-off instigate it? This is the tricky part. Was the conduct reckless….maybe. Was it intended to kill him? No. In a car accident case a person is distracted or not paying attention causing a serious injury.

The difference in this case is that Dr. Shaw pleaded guilty to involuntary manslaughter nearly a year ago– Meaning someone died, but he did not do it voluntarily. Similar to a drunk driving accident (although this is arguably voluntary—the drinking aspect.) This hurts his civil case, as the criminal conviction is admissible in the civil trial. The burden in the civil trial is much lower—preponderance of the evidence…like 51%–more likely than not. So it is not unusual to have a verdict rendered like this.

If the man caused the incident by making a mountain out of a molehill over the road rage incident, then the jury must consider this. Road rage had tragic consequences for both Dr. Shaw and the deceased. Next week, the jury will decide the punitive damages portion of the trial.

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The Nevada State Bar has a referral service to assist victims in identifying an attorney, often times for parties located out of the state of Nevada. While the service is meant to aid individuals obtain legal representation, often times the referring firms don’t bother to reply to communications when they feel the cases aren’t money making opportunities.

At Benson and Bingham, every case brought to our attention is handled will compassion and equal care, regardless of monetary opportunity.  This is once again prevalent thanks to a fax from a firm located in Australia, McGrath, Dicembre & Company Solicitors & Barristers, seeking personal injury representation for an Australian victim:

“We refer to the abovementioned matter and thank you for your letter of 22 December 2008.

We would be pleased if you would advise as to whether your Firm may be able to direct us to another Law Firm who might be prepared to consider assisting us with regard to this matter.

We note that in the past we tried to obtain referrals from the Lawyer Referral Service of the Nevada Bar. Of the four (4) Firms nominated, your Firm was the only one courteous enough to even respond to our request for information.

We thank you for your anticipated assistance and await your early reply.

Yours faithfully
McGRATH, DICEMBRE & CO.

To see additonal testimonials of Benson & Bingham, please refer to our comment cards.

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Pedestrian accidents in Las Vegas occur very frequently.  Today, A 61-year-old woman was struck by a car and killed Tuesday evening while jaywalking on Lake Mead Boulevard west of Buffalo Drive.  Las Vegas police said the woman was crossing Lake Mead from south to north and walked into the path of a 2005 Volkswagen Jetta.  Legally, there is no liability for the driver of the vehicle due to the pedestrian’s violation of the law.  The protection of a cross-walk is so critical and should be utilized.

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If you have been involved in an accident,  you may understand that using your health insurance to pay for your medical bills is a huge benefit due to the offset in contracted medical pricing–the prices your medical providers must bill you are predetermined by your health insurance’s contracted pricing.  The downside, however, is the fact that if it is a group health policy, it likely must be paid back from any settlement from a 3rd party.

Under Nevada Law, insurance companies must specifically exclude the “make-whole doctrine” in the policy to avoid its enforcement. The “make-whole doctrine is a general equitable principle of insurance law that prevents an insurance company from enforcing its subrogation rights before the insured has been fully reimbursed for their losses. Under the doctrine, an insured who has settled with a third-party tortfeasor is liable to the insurer-subrogee only for the excess received over the total amount of his loss. Unless it is explicitly excluded, the make-whole doctrine operates as a default rule that is read into insurance contracts. The make-whole doctrine limits a plans subrogation rights where an insured has not received compensation for his total loss, i.e., has not been made whole.” Canfora vs. Coast Hotels and Casinos, 121 Nev. 771, 778 (2005).

This law is useful when there is an issue as to comparative negligence in an accident case. Nevada currently only allows for an offset of attorney’s fees from a worker’s compensation case under the Breen Formula, a/k/a the common fund doctrine where the theory is that all parties should share some of the attorney costs for collection of suit.  In a 3rd party accident case, often the victim is left without full compensation and therefore a reduction is implicit in the subrogation clause whether the insurance company knows it.   Subrogation agents assume that they have a right to the whole amount until challenged with the Canfora “make-whole” doctrine.  It truly is unfair for an insurance company to not pay their fair share when health insurance premiums have been paid, and the victim is left paying a premium payment and also a subrogation lien.  Contact Benson & Bingham regarding any personal injury matter.

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Wouldn’t it be great if there was a website other than google that could simply rate the best plumber, attorney, or doctor to help you decide whom to choose for your broken pipes, car accident, or treat your illness?  Every site from the yellow pages, dex knows, google, yahoo, msn, all seem to have an “opinion” section, but really all this does is confuse people.  There is no real way to legitimize the referral.  The owners of the site give it 5 stars, the competition gives it 1 star.  So how do you choose?

At Benson & Bingham, we critique ourselves.  Every personal injury client gets a comment card where we are rated on professionalism, service, value, and whether we would be recommended to others; we take this to heart.  Overwhelmingly we get amazing responses.  Why?  Because we simply care.  Check out our  client comment cards and decide for yourself.  No gimmicks, no holds barred. Do we make every client happy?  We certainly try

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Even with a down economy Las Vegas continues to offer the best party for the money.  As 2009 begins, the party season kicked off with New Years where the Nevada Highway Patrol (NHP) reported its usual amount of arrests and alcohol related accidents.  The Superbowl then brought out the beer drinking drivers. President’s day weekend was another big weekend for personal injury attorneys as the drunk drivers just don’t know how to limit themselves– Now that we have past Valentine’s day (which fell on a Saturday-President’s weekend), we await the other big drink fest:  St. Patrick’s Day, the mother of all drinking days.

The Nevada Highway Patrol and other police agencies are trying to protect the public by doing DUI checkpoints, but until our District Attorneys and judges do their part, we are stuck with repeat offenders.  Did you know, that first time offenders will likely get probation for their first offense if the blood alcohol is 1.5 or less?  The legal limit is .08.  Now, Las Vegas prepares for its version of Mardi Gras–start throwing the moon pies, because that’s about the extent of the punishment for these criminals who drink and drive.

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The local outbreak of Hepatitis C and HIV caused by  Las Vegas Docter Depak Desai had the whole city of Las Vegas upset and rightly so.   There is no word in the English vocabulary that fittingly describes the conduct:  ”Outrageous” does not even fit.   Us Medical Malpractice attorneys couldn’t believe this one.  These were cost saving measures that put the public at great risk–but it was not an accident.  It was done on purpose–can you say, “Punitive damages?”  This doctor was performing endoscopy procedures reusing vials of medication and syringes–all in an effort to save some money, and was cross contaminating patients with lethal diseases.

What a disaster.  Now his assets are frozen, his business license is revoked, he’s about to lose his medical license, and he’s facing hundreds of lawsuits.  The stress of the event caused him to have a seizure/stroke back in July of 2008.  Today he claims he is still incapacitated from the stroke and therefore can’t participate in his licensing revocation trial.  If we could, as a society, just do the right thing, he wouldn’t be in this position, and we wouldn’t need to pursue legal actions against such negligence.

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Prominent Nurses, Doctors, Chiropractors, Pain specialists, and Surgeons, send their patients to the personal injury attorneys of Benson & Bingham because they know the cases will be handled from start to finish by skilled and qualified lawyers. The cases will not be “farmed out” to other law firms. They understand that the clients will not be gouged by excessive attorney fees, nor stuck with unnecessary case costs. The biggest reason Benson & Bingham gets these clients is because they truly care about the end result and the client’s overall satisfaction. As a smaller law firm, they can offer the personal touches of a boutique styled law firm and the personal attention that injury victims require. Everything is “one on one” at our law firm, “Client and Attorney.” No case managers, no unlicensed “negotiators” are allowed.

The firm is run like a family business because it really is a family business; Mr. Bingham and Mr. Benson are cousins. We believe our cohesive style helps the overall case, and our office staff always remembers our clients are #1. As master trial attorneys, Joseph L. Benson and Ben Bingham have both achieved so much at a very young age. At 37 and 36, they both are skilled and aggressive to fight for every penny. We realize that we have a stake in the case and want the best result for everyone on our team. We are best in service and the medical professionals know it. UMC rehabilitation knows it best! Nevada Spine Clinic, Neck and Back Centers, Aaron Neck and Back, Canyon Lake Neck and Back, Summerlin Hospital, St. Rose, Advantage Health Care, Urgent Care Centers of Nevada, UMC Quickcare, Complete Care Medical Centers, Tropicana Chiropractic, Advance Chiropractic, and many more all do business with Benson & Bingham.

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The flight that went down in Buffalo, NY this month lends flyers to be a little cautious about flying.  The plane was a relatively new plane: less than a year old having been put in commission in April 2008.  Aircraft accidents are a rare thing when compared to the amount of passengers carried, but the thought of going down in a plane is truly a terrifying thought.  Bad weather can certainly contribute to an aircraft accident, but it usually is not the reason for a crash given the high tech equipment used in modern day airliners as they can fly in practically any weather.

Certainly the decision to fly is a judgment call by the pilots and the FAA.  Pilot error tends to be the biggest factor in plane crashes.   Until the NTSB announces their findings we all await what actually caused the accident that tragically took the lives of 58 people. Equipment failures do occur:  engines fail, hydrolic lines can rupture, and system can stop working–but, these are very rare.  Lighting strikes many aircraft each year without problems.  Birds, as we now are aware, can be the biggest single natural problem of jet engines.  The WSJ reports that it could be the navigation system. Investigators probing the fatal crash of a Continental Connection commuter plane last week near Buffalo, N.Y., are looking into previous reports of problems with an airport-navigation system and how many hours the pilots worked on the day of the accident.  If you or a loved one has been affected by a transportation accident call the experts at The Benson & Bingham Law Firm 702-382-9797.

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