Walking your dog without a leash, even in a park, is negligent. While dog bites often occur due to the owner not properly maintaining their dogs (i.e. Not closing a gate or restraining the animal upon opening a door) more than half of reported animal attacks can be avoided if animal owners would simply place their dog on a leash. The common statement by dog owners, “my dog doesn’t bite” is disturbing. Dogs are animals and have instincts that most owners are not aware. They may become protective or aggressive without notice. Every dog has teeth and every dog is capable of attacking without provocation. Children are often victims of dog bites while out playing in the neighborhood. Aggressive dogs are attracted to bicycles, skateboards and loud children playing.

Personal injuries suffered from dog bite cases often result in stitches, scarring, muscle damage, neurological damage and extreme distress for fear of animals.  If you or a loved one has been attacked and bitten by a dog, contact Benson & Bingham at 702-382-9797.

Dog Bites occur quite frequently in Clark County–about 4 per day!  The statistics show that 1,241 dog bites occurred in 2009 in Clark County.  This is the heaviest volume of dog bites recorded in the last 10 years, however, each year about 1,000 have been recorded annually give or take a few hundred.  The County keeps track of these statistics including the “bite by breed” statistic.   The overwhelming leader in Bites every year is the Pit Bull.  The Pit Bull accounts for 20% or so the bites every year.  Far greater than any other breed.   Bull dogs, labradors, mixed breeds, german shepherds, and terriers, consistently lead the pack here in Las Vegas dog bits.   Who knows if the shepherds bites are police related?  Upon reading the statistics, certainly some breeds may be more prone to bite, just as some breeds may be more prone to retrieve that ball you throw.  But, the major lacking component to the statistics is the TOTAL number of dogs that live in our community.

If Pit Bulls make up 50% of the households, then 20% of the bites is not a bad number!  It is likely hard to measure the total population of specific breeds unless each dog is officially registered.   No doubt that Pit Bulls are a popular animal–especially among Las Vegas residents.  The attraction may be the agility or the home defense characteristics that the dog breed possesses.  To prove my point, the Chihuahua in 2009 made up 11% of all dog bites in Clark County with 122 bites.  Compare this to 2000 when Chihuahua bites were only 1.3% of the total dog bites (14 total bites).  Perhaps Paris Hilton’s popularity of the animal tucked away in her dog purse helped Las Vegans want the animal more–who knows, but it is safe to say that Chihuahua’s population has increased, and that increase has had a marked impression on the total Chihuahua dog bites.  SO, WHAT DOES THIS MEAN?   Statistics must be looked at carefully.    If you have been the victim of a pit bull attack or other breed contact the dog attack lawyers at Benson & Bingham today 382-9797.

So if you have had Bull dog bite and need a Bull dog lawyer, or had a labrador bite and need a labrador attorney, a mixed breed bite, or a german shepherd bite, and/or  terrier bite, then you might just need a Terrier lawyer or shepherd attorney to handle that case. If is sounds silly it is, because personal injury lawyers don’t need to be specific breed attorneys, just solid dog bite attorneys who know the law.  Call us today:  702-382-9797

See the compiled statistics for animal attacks made by Clark County animal Control:

Plastic Surgery and Total Recovery Help from Benson & Bingham 702-382-9797.

Question: My son was in a motorcycle accident in 2008. He passed away at the scene. His girlfriend was on the motorcycle at the time and survived. She has since hired an attorney and they found the driver of the car partial at fault. Is there any recourse that I as his mother can take ?

Answer:  Sorry to hear about your loss.  I too have a motorcycle, and the darn thing is dangerous–but so are the drivers that are on our roads.  The issue presented in this case for potential recovery on your son’s behalf deals with the doctrine of comparative negligence and the law of joint and several liability.  If your son was more than 50% at fault, you (as the heir) can’t make a claim in Nevada. However, if your son was 50% or less at fault, he can make a claim for his damages–which are huge because he passed away.

Most of the time motorcycle accidents are caused by the negligence (carelessness) of the other driver, however, their are always exceptions.  If will be important to investigate the case and see how well the police report documents facts–especially any eye witness accounts–including the passenger girlfriend.   The girlfriend, on the other hand, has a much different case.

As a passenger, she is fault free.  She can collect from your son’s policy AND the other driver–this is the law of joint and several liability.  This basically means she can collect if the driver of ANY vehicle was 1% or more at fault, so if their is shared responsibility for the accident, even if slight, she can exhaust both insurance policies.  If your son had no insurance or minimal insurance coverage, that would explain the claim against the other party.  You only have two years in Nevada to make a claim–so you MUST act ASAP before the two year anniversary or you totally lose your rights.

Using a cell phone, Eating and drinking, Talking to passengers, Grooming, Reading, including maps, Using a PDA or navigation system, Watching a video, Changing the radio station, CD, or Mp3 player are all major causes of accidents because they are examples of distracted driving.   Wouldn’t be a shame if your airline pilot decided to text while landing the airplane and missed the runway?

Well, the fixed attention required to operate machinery is and should be a mandatory choice for the driver, but we are all human and we can actually think and do two things at once.  Society appears to be at ease with a certain level of distractions while driving:  the radio, billboards, etc, all take your eyes off the road, but we tend to allow certain distractions for the sake of functioning.   Imagine no billboards on the freeways?  Not likely to ever happen, but certainly, at least one auto accident has occurred because someone looked too long at the billboard and didn’t realize traffic had stopped in front.  Should we sue the billboard company for creating the distraction, or the county for allowing the billboard?  Likely not given our tolerance for certain levels of distractions.  If you have been the victim of distractive driving call Benson & Bingham today 702-382-9797.

Below are some statistics from the U.S. department of Transportation:

In 2008, there were a total of 34,017 fatal crashes in which 37,261 individuals were killed.

In 2008, 5,870 people were killed in crashes involving driver distraction (16% of total fatalities).

The proportion of drivers reportedly distracted at the time of the fatal crashes has increased from 8 percent in 2004 to 11 percent in 2008.

The under-20 age group had the highest proportion of distracted drivers involved in fatal crashes (16%). The age group with the next greatest proportion of distracted drivers was the 20- to-29-year-old age group (12%).

Motorcyclists and drivers of light trucks had the greatest percentage of total drivers reported as distracted at the time of the fatal crashes (12%).

An estimated 21 percent of 1,630,000 injury crashes were reported to have involved distracted driving.

Driving while using a cell phone reduces the amount of brain activity associated with driving by 37 percent. (Source: Carnegie Mellon)

Nearly 6,000 people died in 2008 in crashes involving a distracted driver, and more than half a million were injured. (NHTSA)

The younger, inexperienced drivers under 20 years old have the highest proportion of distraction-related fatal crashes.

Drivers who use hand-held devices are four times as likely to get into crashes serious enough to injure themselves. (Source: Insurance Institute for Highway Safety)

Using a cell phone use while driving, whether it’s hand-held or hands-free, delays a driver’s reactions as much as having a blood alcohol concentration at the legal limit of .08 percent. (Source: University of Utah)

Personal injury attorneys typically handle cases for victims of car accidents and other tragedies who often are uninsured.  These victims treat with doctors and medical facilities on a lien basis to avoid out-of-pocket expenses.  A lien is nothing more than a promise to pay when the settlement or verdict is reached.    The quagmire is whether patients should use their health insurance or treat on a lien basis when involved in a 3^rd party personal injury action.   Health insurance, under Federal Law, must be reimbursed if funds are collected from a 3^rd party (except in rare cases).  But, there is a huge benefit for those insured victims to use health insurance because they can save tons of money in the long run given they have the protection of contracted health care rates. Lien providers can charge whatever they wish in a car accident case—as long as it is reasonable. What is reasonable is often gauged by market prices—and to some degree Medicare Rates (even though most would argue Medicare is on the cheap end of a reasonable charge.)

The new reasonable charge may be drastically lower given that all will have healthcare.  Given that everyone will now required to be insured, this will eliminate, in essence the need for liens as all persons will now have the remedy of insurance to treat for car accident cases.   Medical providers will likely now be forced to be providers on insurance or risk not being utilized.   Personal injury attorneys will not have the advantage of “inflated” or “non-contracted” rates when dealing with automobile insurance carriers (except in rare cases).  But, there is a huge benefit for those insured victims in Nevada to use health insurance because they can save tons of money in the long run given the have the protection of contracted health care rates.  Lien providers can charge whatever they wish in a car accident case—as long as it is reasonable.  What is reasonable is often gauged by market prices—and to some degree Medicare Rates (even though most would argue Medicare is on the cheap end of a reasonable charge.)  The new reasonable charge may be drastically lower given that all will have healthcare.  Given that everyone will now required to be insured, this will eliminate, in essence the need for liens as all persons will now have the remedy of insurance to treat for car accident cases.

Medical providers in Nevada will likely now be forced to be providers on insurance or risk not being utilized.   Personal injury lawyers will not have the advantage of “inflated” or “non-contracted” rates when dealing with automobile insurance carriers  (Geico, State Farm, Farmers, Allstate, American Family, Progressive, USAA, etc.), thus many should expect that lower medical costs will decrease personal injury settlements in minor car accident cases where value is often determined by the extent of the medical expenses and underlying treatment (verses the injury value in a large damages case where the human damages may have a residual affect).

Many states, such as Nevada, have imposed egregiously unfair limits on pain and suffering damages in Medical malpractice cases.  These cases often have horrible damages leaving the victims unfairly compensated for bad medicine.  Nevada currently has a cap of $350,000 for pain and suffering.   Two states in 2010 have now repealed their respective States’ laws on caps.  The first this year was Illinois and now Georgia (who has a cap similar to Nevada $350,000.)

These States’ Supreme Courts banned such limitation based on the Separation of Powers Doctrine Embodied in the US Constitution.  The crux of the argument is that the legislature can’t impose rules on those duties fundamentally outlined for the judiciary—here reducing verdicts.   The principle behind the Courts’ rulings is likely to be challenged.   Can a legislature make laws that affect the judiciary?  It really depends on your legal philosophy.  In some respects, it seems like a conflict of interest to have a Court decide whether they have the power over the legislature to interpret a law—in other respects, it does make sense that our Separation of Powers doctrine was implemented to serve the very issue of fairness over the legislature.  With the new health insurance reform, time will tell how this may impact our Medical mal-practice laws.  What do you think?

The Nevada Legislature has capped damages from Punitive damage awards limiting it to three times the amount of general damages per NRS 42.005. $300,000 cap for small verdicts (< $100K) and three times the verdict for those over $100K.  These do not, however, apply to Product’s Liability cases, nor insurance bad faith cases.   These are the most common cases a personal injury lawyer will  deal with, except perhaps the DUI driver Defendant where the conduct is so reckless it may amount to crossing the line of intentional conduct.

Given this, the only cap on product’s liability (e.g. Ford Motor, or Tire cases where there was malice or knowledge of the defect and a jury feels compelled to punish the manufacturer) is the Governing Cap developed by our very own US Supreme Court.  The US Supreme Court in a landmark decision BMW vs. Gore  outlined specific notions of fairness in a platform analysis for State Judges.  The platform looks at the following two prongs:  Reprehensibility & Ratio.  How bad was the conduct?  Did the malicious conduct affect safety? = Reprehensible Conduct and Ratio:  Are the two verdicts Compensatory and Punitive Damage awards have a common ratio so as to not deprive one of due process of law…property.  The guideline was basically a 10:1 ratio that they could not exceed when awarding a punitive damages awards.  Since this decision the Court has further narrowed the guidelines in decisions that we will not address here, but the point is clear that the Nevada Legislature has designed the guidelines for Product manufacturer’s to product safe products and do it with some integrity.   Below is the statute on Punitive damage guidelines for Nevada Cases:

NRS 42.005  Exemplary and punitive damages: In general; limitations on amount of award; determination in subsequent proceeding.

1.  Except as otherwise provided in NRS 42.007, in an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud or malice, express or implied, the plaintiff, in addition to the compensatory damages, may recover damages for the sake of example and by way of punishing the defendant. Except as otherwise provided in this section or by specific statute, an award of exemplary or punitive damages made pursuant to this section may not exceed:

(a) Three times the amount of compensatory damages awarded to the plaintiff if the amount of compensatory damages is $100,000 or more; or

(b) Three hundred thousand dollars if the amount of compensatory damages awarded to the plaintiff is less than $100,000.

2.  The limitations on the amount of an award of exemplary or punitive damages prescribed in subsection 1 do not apply to an action brought against:

(a) A manufacturer, distributor or seller of a defective product;

(b) An insurer who acts in bad faith regarding its obligations to provide insurance coverage;

(c) A person for violating a state or federal law prohibiting discriminatory housing practices, if the law provides for a remedy of exemplary or punitive damages in excess of the limitations prescribed in subsection 1;

(d) A person for damages or an injury caused by the emission, disposal or spilling of a toxic, radioactive or hazardous material or waste; or

(e) A person for defamation.

3.  If punitive damages are claimed pursuant to this section, the trier of fact shall make a finding of whether such damages will be assessed. If such damages are to be assessed, a subsequent proceeding must be conducted before the same trier of fact to determine the amount of such damages to be assessed. The trier of fact shall make a finding of the amount to be assessed according to the provisions of this section. The findings required by this section, if made by a jury, must be made by special verdict along with any other required findings. The jury must not be instructed, or otherwise advised, of the limitations on the amount of an award of punitive damages prescribed in subsection 1.

4.  Evidence of the financial condition of the defendant is not admissible for the purpose of determining the amount of punitive damages to be assessed until the commencement of the subsequent proceeding to determine the amount of exemplary or punitive damages to be assessed.

5.  For the purposes of an action brought against an insurance company.

Court won’t disturb $82.6M award in SUV rollover

Supreme Court rebuffs Ford appeal of $82.6 million award to woman paralyzed in SUV rollover

• On 10:22 am EST, Monday November 30, 2009

WASHINGTON (AP) — The Supreme Court has left in place an $82.6 million award to a woman who was paralyzed after her Ford Explorer rolled over.

The justices on Monday rejected Ford Motor Co.’s challenge to the portion of the award, $55 million, that was intended as punitive damages. Ford argued that it should not be punished because its design of the vehicle met federal safety standards.

A California state appeals court earlier rejected Ford’s contention and upheld the award to Benetta Buell-Wilson.

She was driving on an interstate east of San Diego in January 2002 when she swerved to avoid a metal object and lost control of her 1997 Explorer, which rolled 4 1/2 times. The mother of two was paralyzed from the waist down when the roof collapsed on her neck, severing her spine.

A jury initially awarded Buell-Wilson $369 million, including $246 million in punitive damages but courts twice cut the size of the award. The jury concluded that Ford knew the Explorer had design defects that made it prone to rollovers in emergency maneuvers and the collapse of its roof.

The case is Ford v. Buell-Wilson, 09-297.

In 2003, the Nevada Legislature created political campaign entitled, “Keep our doctors in Nevada.”  The argument was that due to medical malpractice insurance premium increases local doctors could no longer practice affordable medicine due to the escalating costs.   The Victim’s rights groups and Personal injury attorneys banned together to unsuccessfully fight this tort reform legislation.  In essence the laws were reformed to:

1.) Limit the amount of pain and suffering a victim could collect to $350,000; therefore a person who dies or is paralyzed gets only $350,000!

2.) Limit the attorney fees to discourage attorneys from taking good cases from 40-50% to 15% on amounts over $600,000.

3.) Reducing the time Victims have to sue from 2 years to 1 year; aka, the statute of limitations.

4.) Medical expenses and Wage losses (economic damages) are not part of the pain and suffering cap and are unlimited, but truly these costs are just reimbursement of costs and wages the client/victim would have made or need to make.

What these rules have done is effectively stopped good lawyers from taking good cases.  Unless a person understands why, they may disagree with this author.  We need to fight for just and fairer laws.  A laymen’s perspective may ask, “attorney fees seem like a lot for $15% over $600,000?”  Not true.  When personal injury lawyers decide whether they want to take a case they ask themselves:  Does the case have merit?  Is the case Just? Can we prove it?  Is the case worth it from a business standpoint? The official rule for attorney fees is: Forty percent of the first $50,000 awarded; 33 and one-third percent of the next $50,000; 25 percent of the next $500,000 awarded; and a cap of 15 percent for awards of $600,000 or more.

The first question is usually easy:  we simply ask another medical expert their opinion on the facts of the case and whether the doctor deviated from the standard of care.  Often, this is even easier if the facts indicate an obvious error. The next question is whether the case is Just?  This is simply a balancing test on whether the victim was so injured as to justify the need of litigation over the need to sue a caregiver.  Some cases are so minor that they don’t warrant a lawsuit.  The third question is a matter of proof.  Cancer victims often cry fowl that the doctor misdiagnosed the disease leading to a death.  These can be tough to prove:  would you have survived if they had diagnosed properly? –Tough question that borders on speculation, which is a fundamental basis, the law does not allow.  Can you prove that the doctor accidentally cut your bowels during the stomach operation leading to your infection, or was that an appendicitis issue?

THE BUSINESS DECISION:  RISK VS. REWARD

Also, a legal practitioner will always ask, “Does this case make economic sense?”  Most people don’t understand the personal injury lawyers take the case and front all the expenses necessary to perform a jury trial.  This is very, very expensive.  Each doctor that testifies, as an expert must be paid.  The victim usually can’t afford this, so the attorney’s front these costs.  Why would an attorney represent a victim that has suffered immensely, but the case is too expensive and the risk of losing is great.  They won’t.  Remember that law firms are businesses that employ many persons.  A firm can’t take too many losses or they wont operate; hence the art of case selection.  These laws create public policy; in essence, reducing the number of attorneys taking cases, which in turn, means they only take the most horrific, easy to prove, profitable cases.  The rest of the maimed public is stuck.

THE ULTIMATE RECOVERY

I don’t think anyone besides doctors will argue that $350,000 cap is fair.  There are just too many horrific injuries that justify more compensation.  This is just an idiotic law.  Forget attorneys, forget doctors, this is about injured victims—people who have been harmed and in essence are tortured for life.

THE TIME FRAME:  1 YEAR

This is also a horrible law.  One year is not enough time to realize you are injured due to malpractice, you must interview possible attorneys, collect all the necessary medical records which are normally stored in other states, hire an expert (which will also be located out of state), and finally, allow for a party to grieve.   If you lose a loved one, litigation and suing is not on the forefront of someone’s mind.  One year is simply too soon to be the cut-off.

THE OTHER TIME FRAME:  NOT MORE THAN THREE YEARS

If you have a sponge left in your abdomen after surgery, but it is not recognized for five years, you can’t sue!  Is that fair? No.  Enough said.

Our law firm handles mal-practice cases because we believe the system needs experience attorneys to protect the public from harmful doctors and to encourage proper medical treatment.  No one is above the law.  Contact  Benson and Bingham if you have been injured through no fault of your own.

NRCP 68 and NRS 17.115 are the governing rules for Offers of Judgments as they relate to prevailing parties.  These rules are extremely important for Las Vegas personal injury lawyers who litigate cases in Nevada.  A failure to properly submit an Offer of Judgment can cost your client dearly in attorney fees and costs.  Normally, costs are awarded to the prevailing party in a lawsuit.  The award of attorney fees, however, are governed under the rules of offers of judgment.  An offer of judgment (OOJ) can be submitted anytime after a party is served.  There are factors known as “Beatty Factors” that control specifics of the fairness of the OOJ; for example, the timing of the OOJ, and the fairness of the other parties knowledge of the facts so that they could actually make a reasonable assessment of the risk.  The failure of accepting an offer of judgment can cost the losing party thousands in attorney fees.

In the Estate of Miller, 125 Nevada Adv. Op. No. 42 September 24, 2009, the court ruled that judgment on Appeal can qualify as a “more favorable judgment” for purposes of the fee shifting provisions of the NRCP 68.  It also rules that appellate fees are recoverable, and that those pro se persons who represent themselves and later hire an attorney can get those fees awarded for the attorney who defended or prosecuted the case.