San Francisco Injury Lawyer Blog

Growing old in America is not what it was, let’s say, 100 years ago. It used to be the case that age was venerated in society. Today, however, there is a negative perception associated with aging that is fostered by our culture. For the most part, the experience of the elderly is discounted by the media, or it is not represented at all–very definitely, youth and prestige have gained superiority over experience. Age has diminished as a distinguishing element among the elderly as it pertains to their worth. Without argument, the message in society today is this: to be worthwhile, you must be young. Consequently, as the negative image associated with aging is continually perpetuated throughout society, it leaves the elderly with a sense that they are worthless. Sadly for some elderly, the feeling of worthlessness is compounded when they are placed in a nursing home, especially if it is not a well functioning one. Without proper care at nursing home, the elderly commonly suffer from what we consider “nursing home abuse.”

Medicare and Medicaid have had a large impact on the use of nursing homes and the changes in patterns of financing have encouraged the construction of nursing homes. Despite Medicare and Medicaid funding and laws created to protect the elderly, there are few safeguards to ensure that a standard of patient care is maintained. Countless nursing home studies have found that proper staffing is one of the main factors to a well functioning nursing home. Investigators usually find that understaffing leads to verbal abuse and neglect. When nursing homes cut staff, pay lower wages or let caregiver levels slip below a state mandated minimum, the residents suffer. State inspectors continually undercover a litany of violations, such as neglecting bedsores and giving patients the wrong drugs. There is an implicit good faith agreement between staff and residents that they will receive proper care. Yet some nursing homes house, as part of their business plan, a high percentage medically fragile patients in order to receive higher reimbursements–which is dangerous when combined lower staffing rates.

A common injury due to understaffed nursing homes is the development of pressure sores–a telltale sign of neglect. Some patients, especially diabetics or those with high blood pressure, can develop pressure sores on ankles and tailbone. Sores can become so deep to the point that bone becomes exposed and then becomes severely infected. When a bed sore develops, nursing home staff must be quick to identify the wound and implement the use of medical equipment, such as pressure relieving mattresses and heel protectors, to prevent the wounds from worsening. When bed sore are not treated in their initial stage, they progress and become difficult and more costly to treat. A stage 3 or 4 bed sore typically requires aggressive medical treatment. In some cases, though, by the time significant medical treatment his utilized, many patients are already suffering from serious complications. In the most extreme cases, gangrene can set in and a patient has to have their leg amputated. And the worst cases of all are those that result in the death of a patient.

Here is a scenario that may or may not sound familiar to you: A financial advisor meets with an elderly client (maybe your mother or father or some other elderly person you care about) and encourages that client to exchange their fixed annuity for a variable annuity. Then, some years later, that same financial advisor, persuades their client to annuitize the policy, thereby causing the client to lose a substantial amount of money. This type of act is a violation of fiduciary duty and California’s elder abuse statue, which makes it illegal to wrongfully obtain and use an elder’s property. Under California’s Elder Abuse and Dependent Adult Civil Protection act, it is stated that “financial abuse” occurs when a person or entity “takes, appropriates, or retains real or personal property of an elder or dependent adult to a wrongful use or with intent to defraud, or both.” “Wrongful use” occurs when any of the above mentioned actions is taken “in bad faith.” “Bad Faith” is shown when a person or entity should have known that the elder or dependent adult had the right to have the property transferred or made readily available to the elder or dependent adult or to his or her representative. Basically, bottom line is, an elder abuse claim is warranted when a financial advisor does not inquire enough about their client to determine that an exchange of an existing fixed annuity for a variable annuity is in their best interest.

These ‘unsavory’ marketing practices by insurers or other deceptive practices in connection with the sale of annuities to senior citizens are a common type of elder abuse. The following are some “red flag ” type situations to consider if an elderly person you care about is going to meet with or has already met with a financial advisor regarding annuities:

• Sometimes the damages arising from rolling over a fixed annuity into a variable annuity, rather than liquidating the annuity can often be substantial.

According to the Associated Press, a total of 89 class action lawsuits have been filed against Toyota nationwide as of Monday, which could result in 3billion in payouts (if each individual receives around $500). Speaking of Class Action Lawsuits, have you ever received a notice in the mail from the courts that you are a member of a class action lawsuit and wondered what the heck it means? Then, not knowing what was the best thing to do or what you really could gain or lose from taking action, thrown the notice in the garbage? Here at the Brod Law Firm, we believe in the class action suit, as they give the everyday, hardworking citizens a chance to fight large corporations and private entities. So, with that said, we would like to give a brief tutorial about class actions for our readers, for the next time they might receive notice from the courts or have a potential class action claim of their own.

Let’s say you buy a car with faulty brakes and contact the company who makes the car, asking them what they will do to fix the problem. Then they delay or avoid taking responsibility for the issue, leaving you frustrated enough to hire an attorney. At that point your attorney will do some research and file a lawsuit on your behalf, and any other parties involved, and the company is put on notice. Then your attorney takes some depostions and asks the court to certify the case as a class action, meaning all people in the same circumstance get redress. Next, the court directs that notice be given to all parties having a similar claim during a particular time period. Those parties are then to be notified (usually by the defendants’ attorney) so that they may be informed and have input into the case. At that time, all parties, including the persons who bring the claim, are treated equally.

So basically, what a class action does is it allows cases that have merit to be filed that would otherwise be too expensive to litigate had they been filed individually. In the course of a class action case, several notices are mailed to class members, giving them a chance to “opt-out”. If they choose to “opt-out”, they have no further standing in the case. They can forget the matter or bring about file an action on their own behalf. If a party does not “opt-out,” they are considered to be a party to the case. From that point on you are bound by court’s decision and prohibited from taking any further action in the matter. The case could settle quickly or take years. Then, at the end, the parties will either reach an agreement, and the judge will approve the fairness and propriety of the settlement, or the case is tried and the judge renders a decision.

Did you ever go shop for something at a store that guaranteed a rebate, say at a electronic or office supply store? A lot of consumers love rebates, but few know the exact meaning of rebate or how it works. “Rebate” means the return of a payment or a partial payment, which serves as a discount or reduction in price. They are also called promos, offers, deals, or rebates, calling on the customers to buy a product or service right now. Depending on the particular type of promotion, the customer receives a rebate check or a rebate card back by mail, also called MIRs or mail-in rebates. The rebate process is not a straight forward process. How it works is manufacturers, service providers, and retailers or E-tailers, who fund the rebates, hire third-party fulfillment companies; also known as fulfillment houses, fulfillment services providers, FSPs or rebated processors; to process the request for the customers who, sometimes, wait long periods for receipt of their rebates. So what motivates companies to offer rebates, anyway?

When companies offer a rebate in place of immediate discounts on a certain product, they increase the odds of that product being purchased. But often, filling out the receipts and putting together the collection of paperwork and proofs-of-purchase required to redeem them can be frustrating, especially if you are not a very organized, meticulous person who saves all your receipts. Also some buyers simply forget or can’t be bothered to go through the hassle of trying to get $10 back or follow instructions correctly. Companies seem to bank on consumers not being organized, forgetful or careless. Added to that is the fact that, sometimes, even when a consumer properly follows instructions, the rebate never arrives, leaving the consumer feeling they have been scammed. When a consumer does not receive their rebate, it can translate into millions of extra revenue for retailers and their suppliers each year. And, sometimes, when the check does arrive, it gets thrown in the trash because it looks like junk mail. Bottom line: What rebates do is get consumers to focus on the discounted price of a product, then buy it at full price.

But many consumers, including state and federal authorities, such as the Federal Trade Commission, suspect that companies design the rules to keep redemption rates low. Manufacturers and retail stores make good use of this phenomenon, as they know most consumers won’t put up a fight or spend money to hire an attorney to help them get back a 50 dollar rebate that they never received– it would cost 10 times that amount to pay the bill of even the cheapest of attorneys. When a company offers a rebate and then does not follow through, that is what we call “rebate fraud“. Here at the Brod Law Firm, we are ready to help victims of fraudulent business practices recover what is owed to them. Additionally, we have listed some ways to avoid being a victim of rebate fraud:

Last week Mayor Gavin Newsom submitted a new piece of legislation to the Board of Supervisors: a citywide ban on sitting or lying on public sidewalks, including in front of your house. He introduced the legislation in response to the harassment of pedestrians and merchants by street persons, especially the harassing that takes place in the Haight on a daily basis. Similar ordinances are in effect in other cities, including Santa Cruz, Seattle, Wash., and Austin, Texas. The legislation consists of the following:

• No sitting or lying on sidewalks from 7 a.m. to 11 p.m. daily

• Dogs cannot be more than 2 feet away from owner when stationary

Last week a lawsuit filed by the Bologna family, the family whose father and two sons were fatally shot in 2008, against the city of San Francisco was thrown out. The presiding judge, Charlotte Woolard, ruled that the surviving members of the Bologna family can’t sue the city for allegedly harboring accused murderer Edwin Ramos from federal immigration authorities under federal immigration laws. In her ruling she stated: “In California and in their jurisdictions, it is well established that public entities generally are not liable for failing to protect individuals against crime.” Unlike injury cases where public entities and local jurisdiction can be held liable for injuries suffered at those locations, criminal cases do not follow the same rule. The lawsuit also claimed that that Ramos, an alleged illegal immigrant, had been previously arrested multiple times for violence and drug offenses, and the city failed to notify immigration enforcement. It is interesting to note that the Bologna family had also filed suit in federal court in 2008, and that that suit was also dismissed last year after a U.S. district judge reached the same conclusion. The crime and the criminal’s immigration status are two separate issues (issues that are too complex for the purposes of this blog), the former having no bearing on the latter.

Here at the Brod law firm, complex and tragic cases like this always leave us pondering the nature of justice, really. After all the lawsuits are filed, who is the last person to blame? Of course the person with the gun is the one responsible, but often the families of victims, such as this case shows, believe more than one person be held responsible–which is completely understandable– in the face of the facts. It is hard to fathom the depth of grief any family feels after such a monstrous crime. Obviously, the family in this case has to come to terms with the result of the lawsuit; but, more importantly, they must come to terms with the deaths of their family members. We have seen our own clients face similar challenges during wrongful death lawsuits. Clients sometimes alienate themselves behind a lawsuit, thereby making it harder to accept and deal with their loss. It is an arduous task coming to terms with death of a loved one; it requires a courageous act of allowing the full measure of grief to penetrate one’s faculties and then by adjusting one’s life accordingly. Let’s be clear, in no way do we claim to be experts on the subject of grieving. Consequently, we always recommend victims’ families to seek out the appropriate form of grief counseling.

Poor MUNI. It seems MUNI just can’t get a break these days. Our wonderful city’s transit system is being buried alive under a huge deficit, and its riders are going down with it. Anyone concerned about the current proposed MUNI service cuts and fare increases should attend the SFMTA meeting on Friday February 26 in Room 400 at City Hall at 9am. These are hard times for MUNI, as their budget is out of control, there has already been a ton of service cuts, people are just starting to get used to paying more for their fast passes, and violence on buses and bus crashes continue. So it is imperative that MUNI riders speak up regarding issues that pertain to their safety and financial well-being during this Friday’s morning meeting. There you can offer your ideas on how MUNI can balance its budget.

There is no doubt that the most significant factor in the agency’s recent budget crises is the state’s cut of transit funds-the MTA has lost $179.1 million in State Transit Assistance funding over the past three fiscal years. Now, the MTA is proposing more service cuts to Muni in order to close a $16.9 million projected budget gap through the end of the fiscal year. The cuts are as bad as the ones introduced in December, and, if approved, are scheduled to go into effect in May. Some of the changes include reducing frequencies on every Muni line; increasing fares on services including the F-line, express routes, and cable cars; and charging MTA employees for parking. The major factors affecting the deficit are:

• the projected increases in the cost of benefits including health, retirement, and other benefits, which add up to about $37 million over two years;

Last week San Francisco Police Chief George Gascon promised to put in place significant crime reducing policies, including implementing crosswalk stings-like the ones recently conducted by the Ingleside Police Department. SFPD spokeperson Lt. Lynn Tomioka said that crosswalk stings are good way to educate drivers about being aware of the danger they pose to pedestrians. She also said that they want to see all stations become involved, not just the pilot station. Sting operations are the best way to reduce vehicle-pedestrian collisions. Some common reasons for pedestrian-auto crashes are:

• drivers do no yield to pedestrians,

• drivers run red lights or turning on red without stopping for pedestrians,