Collateral Source Rule Today

Hospital bills after an accident

For most people who are injured in an accident, fretting over the medical bills is the furthest thing from their minds. But eventually, it becomes something that the injured must confront. It is common knowledge that medical bills are expensive and that there are often ways to reduce the amounts actually paid on those bills. For example, private insurance companies and government entities such as Medi-Cal routinely pay less than a hospital originally billed; either as a result of a previously negotiated discount contract or because of legislation that dictates maximum payments for certain procedures. Furthermore, many medical providers, particularly larger charitable hospitals, often offer need based discounts to individuals in certain income brackets. As a result, the amounts a provider bills out often bear little relationship either to the amount they will ultimately collect or to the actual hard cost of providing the included services.

Because of this widely known discrepancy, there exists an extremely complex medical services market in which different categories of patients pay different rate levels under different circumstances with insurance providers, lien holders, medical financiers, and government entities muddying the waters even further. Thus it is that when many accident victims are faced with choices about how to receive medical services, sometimes under the added stress of an emergency setting, the first thought on most patient’s minds is how to avoid as much of the potential expense as possible. It is important to understand that some kinds of payment can impact the amount and sources of any later legal recovery to which you may be entitled as a result of your injury.

Unfortunately, the world of hospital economics has become so convoluted in the United States that the advice of a qualified personal injury attorney is now recommended right from the beginning, if possible even before medical services are rendered, though not to the exclusion of emergency treatment. While the legal landscape surrounding medical payment recoveries is rough and currently in flux, a basic understanding of some of the key concepts at work can help.

What is tort liability?

Whenever a person does something carelessly which leads to another person’s injury, the first person – known in legalize as the tortfeaser – may be legally responsible for the injury. Usually by way of paying for medical costs associated with the injury. This basic concept underpins all of personal injury law, but it is limited or modified by several corollary rules which can apply in different combinations in different settings and by obscure rules of court which dictate the procedural aspects of a personal injury trial or settlement.

The collateral source rule

With the rise in private insurance many years ago came a concordant rise in the number of injured people who did not have to pay their full medical bills out of pocket because those bills were paid by a health insurance provider. To avoid allowing the party responsible for the injury to benefit from the injured party’s prudent choice to obtain health insurance, courts developed the collateral source rule to ensure that the defendant – the person responsible for an injury or accident – paid the full amount of the injury, not just that part the injured person had to pay out of pocket. Without the collateral source rule a defendant would reap the ultimate benefit of an insurance policy paid for by someone else. Moreover, the health insurance provider had to bear the costs of the defendant’s negligence.

For example, let’s say that two people are involved in a car accident. Driver A ran a red light hitting Driver B and broke his leg. Driver B goes to the hospital and is treated for the break. The hospital bills Driver B incurs is $1000 for treatment. However, Driver B is covered by an insurance plan that pays 80% of the bill meaning that Driver B only has to pay $200 out of pocket. In court, Driver A might argue that he should only have to pay for the $200 that Driver B actually paid out of pocket, contending that this amount is the real value of the injury. The collateral source rule steps in to prevent this injustice by requiring Driver A to pay for the entire hospital bill, unless other circumstances exist, even though part of the bill was paid off by Driver B’s insurance provider.

In a similar way, gifts made to Driver B from other third parties like generous hospitals or kind hearted doctors will similarly not be deducted from the amount demanded of Driver A under the law.

Previously negotiated rate discounts

While the collateral source rule is still very much in effect today, its application has been somewhat limited by recent court decisions; particularly with respect to the discounted rates many insurance carriers negotiate with medical providers as part of their in-network coverage agreements. Under these agreements, an insurance company and a hospital, for example, might agree that any patient covered under a policy written by the insurance company, who seeks treatment at the hospital, will only be liable for 50% of the billed rates. In other words, if Driver B were to visit this in-network hospital he would be charged only $500, instead of the usual $1,000, for the same broken leg, with the insurance company paying $400 and Driver B left with an only $100 out of pocket expense.

In several recent cases, the parties have argued that this type of discount should be treated the same as the earlier collateral source example we gave and therefore that Driver A should still be liable for the full $1000 the hospital would “normally” charge. However, California courts have not seen things this way. Several courts have decided that because the negotiated discount was arranged prior to the injury in question, and is not specifically related to the provision of care to Driver B, neither Driver B nor anyone else would, ever have to pay the full $1000 and therefore that the real value of treatment was at most the $500 negotiated rate. In short, because Driver B’s insurance company had the foresight to negotiate a lower rate for patients it insured, Driver A now gets to pay less for causing the same injury.

What does all this mean?

While the details are complex and filled with legalize and healthcare economics math, the outcome has real consequences for everyday patients. The bottom line is that if you are injured in an accident, your best bet is to seek immediate legal help; we understand the law in regards to evaluating the real damages that you have incurred.

An experienced personal injury attorney can help you to understand specifically how the various laws are likely to impact your particular case which might impact your later legal strategy. Ultimately, a good attorney can help to make sure that you are fully compensated for your injury whatever the circumstance under which your medical bills are paid.

Automatic License Plate Recognition (ALPR)

You are being tracked

In a report released last week, the ACLU describes in chilling detail the rapidly expanding law enforcement use of automatic license plate recognition (ALPR) systems nationwide. Originally designed to automatically scan surrounding vehicle plates for comparison against a “hot list” of wanted vehicles – such as those reported stolen or owned by a person for whom an arrest warrant was outstanding – ALPR devices have now become a seemingly indispensable investigative tool. While law enforcement use of emerging technologies is not in itself a problematic practice, how those tools are used can be of great concern.

How it works

While the underlying algorithms that make ALPR possible can be highly complex, the basic technological principles are fairly straight forward. Essentially the technology involves a camera, a computer, and a piece of software designed to “read” any vehicle license plates picked up by the camera. Mounted on police cruisers or road fixtures such as overpasses or street lights, sets of connected cameras can effectively scan the license plates of every vehicle within range.

While one or two such systems pose relatively little threat to everyday privacy, hundreds of such cameras are now active all over LA County and are being used by the LAPD, the LA County Sheriff, and the California Highway patrol. Together, the accumulated data from all these sources (all of which is shared between departments and even the Federal government through a backend server system known as BOSS) can be mined by law enforcement and the results used to paint a picture of the movements of any citizen who drives on public roads – going back months or even years into the past.

ALPR grows up

Originally developed in England as an offshoot of the massive public surveillance camera system long in use there, ALPR was first put to practical use in the late 1970s. However, despite its early potential, the prohibitive cost of computing and camera equipment made widespread use of the technology impractical until the last decade. Broad public knowledge of the practice is still underdeveloped. News reports were covering ALPR back in 2006, including an article published in Wired; but even at that relatively late date, the more nefarious aspects of the technology were still all but unknown. Even the ACLU is quoted in that article as being unconcerned about the practice at the time stating that there had been no legal challenge because the activity was not illegal – what a difference a few years can make.

Lost cost digital storage and the rise of privacy concerns

Much has changed since 2006 to make ALPR technology a much bigger concern today than it was just a few years ago. Of primary concern is the rapidly decreasing cost of huge computer storage capacity. Once a barrier to privacy invasion, digital storage technologies now allow law enforcement to maintain the records of their scans indefinitely; a possibility many agencies are all too happy to embrace. In the early days, hits were only scanned against a short list of “hot” vehicles. Today, everything has changed. Now, every single scan is logged into a database with some jurisdictions storing more plate data points per year then there are residents under their protection. What was once a benign police tool has now become every bit as controversial as the NSA phone surveillance program revealed earlier this year.

Indefinite storage

While police agencies tout the many legitimate uses of the ALPR technology, privacy concerns about the system stem not from its legitimate uses but largely from the length of time for which collected data is retained. Because every scanned plate is logged and stored in the database, Los Angeles streets are effectively under nearly permanent video surveillance. In the absence of any statewide regulation, agency privacy protections vary dramatically between institutions. The LAPD, for example, apparently holds the data for approximately two years, even on entirely innocent individuals. While the department has been hesitant to respond to ACLU records requests, written procedures appear to allow for data retention even of information not linked to any crime.

Dragnet

ALPR Camera Dragnet

Perhaps worse, no warrant is typically needed to mine the data, most of which is statistically worthless to law enforcement. Even in large jurisdictions such as LA County, the ACLU report reveals that less than one percent of the plate data recorded ever leads to any meaningful police action. The problem, however, is that location data, especially location data over long periods of time, can tell a great deal about personal behaviors. Which doctor you visit, what church you attend, which political rallies you have marched with, what friends you keep, which streets you take to work each day; all of this and much more can be gleaned from the plate databases of the LAPD alone. Even more troublesome is the fact that much of the data is stored by private companies with clear profit motives and that there are few, if any, access guidelines attached to the data. In short, it may be that anyone can access your location data at any time, even for commercial purposes.

How to protect yourself

In effect, your entire vehicle related paperwork is being continually monitored without your knowledge by most local law enforcement agencies in the LA area. To protect yourself it is critical that you make absolutely sure that your DMV paper work is complete and up to date. Maintain car insurance, make sure your registration is current, and keep up on your car payments. Any slip could give officers potential probable cause to pull you over and from there even a complete search of you and your vehicle is a possibility.

Gang Allegations

Street gangs

Criminal street gangs represent a serious problem for police departments all across California. While the numbers vary widely, FBI estimates rank Los Angeles and San Bernardino counties as first and third in the nation respectively for numbers of gangs and gang members. With an estimated gang population of more than 68,000 in Los Angeles county alone, as of 2011, it is not hard to see why law enforcement and the district attorney’s office take such a hard stance against suspected gang related criminal behavior. However, as the FBI threat assessment report is quick to point out, numbers do not tell the whole story and there is not necessarily a direct correlation between gang population and rates of criminal activity.

A number of factors can warp the impression given by the numbers alone and it is important to take in a more full perspective before jumping to conclusions. But, whatever the political ramifications of the numbers, gang allegations are perhaps most serious for those defendants facing gang related criminal charges.

Two gang laws?

First passed in 1988 (and later amended by proposition 21 in 2000) California’s STEP Act both criminalizes participation in a gang and enhances the sentence of defendants convicted of committing a crime on behalf of an active gang. While this might seem like a distinction without a difference, the penalties associated with each offense are dramatically different. Let’s look at each independently to better understand this area of law. A gang is defined as an association with three or more people who have as a primary activity the commission of any one or more of a list of 25 specifically enumerated crimes, share a common name, and who show a pattern – meaning 2 or more – of criminal behavior.

Part (a) – gang participation

Under section 186.22(a) of California’s penal code, it is a crime to actively and knowingly participate in the activities of a street gang. A violation of this code section carries a variable penalty ranging from one to three years. Gang participation may be charged in addition to any charge related more directly to the specific offence at issue.

Part (b) – gang enhancement

Under section 186.22(b), a defendant can be charged with, in addition to the above, the crime of furthering the interests of a criminal street gang. Under this part of the code, a defendant can face up to an additional 10 years of jail time for any crimes which are knowingly committed in association with, or for the benefit of, a street gang. In other words, part (b) is a rider, which adds substantially to the sentence of any person convicted of an underlying crime and also convicted under the gang enhancement section.

In addition, there is a firearms provision which, if successfully prosecuted in conjunction with the gang enhancement against any member of a group under consideration, can add up to 25 years to a sentence depending on the underlying nature of the alleged crime. For example, if three members of a gang are each convicted of robbery and also convicted under the gang enhancement provision, and one of the members of the group used a gun to assist in the robbery, additional time can be added to the sentence of each of the three convicted participants even if the other two were unarmed during the robbery.

An allegation is not a conviction

Given the large gang problem facing many parts of California, it is perhaps to be expected that some prosecutors will overzealously pursue gang enhancement or participation charges against criminals for whom such charges are not appropriate. This is why it is critical to remember that a charge is not a conviction. Gang add-ons can very often be fought, and the charges reduced or even dropped entirely with the right legal help. There are a number of defenses to gang charges. The gang enhancement codes require the prosecution to prove a relatively complex set of variables including, for example, that a defendant knew that the crime was for the benefit of a gang, that the gang had a pattern of criminal behavior, that the defendant knew the group was a gang, and that the defendant intended the crime to further the gang’s interests.

In addition, as in every criminal trial, the prosecution must prove every element to the jury beyond a reasonable doubt, the highest burden under the law. If you are facing a gang enhancement, or any other criminal charge, contact a qualified and experienced criminal attorney as soon as possible to ensure that your legal rights are not jeopardized.

Criminal DNA Testing

DNA testing under the microscope

With the proliferation of CSI type crime dramas over the last few years, many people from Juries to the lay public have come to assume that DNA testing is a quick and foolproof way of proving the guilt or innocence of a criminal suspect. In fact, some experts even worry that this “CSI culture” is invading the purview of the courts; leading juries to expect and even demand DNA evidence from the prosecution even in cases where such evidence would add little of substance to the analysis. Adding to the confusion are the range of media reports, some of which warn about the possible inaccuracies of DNA testing procedures and others which hail the ways in which the technology has been used to absolve and free convicted criminals.

However, despite the media hype and many public misconceptions to the contrary, DNA testing is a highly reliable and accurate method of matching a sample with a donor, or of proving that no match exists. But, this accuracy depends entirely on the methods used, the care and skill of investigators and lab specialists, and the presentation of the resulting evidence by lawyers during trial.

What is DNA testing?

DNA testing is the process of comparing a sample of DNA, such as from a crime scene, to a potential suspect; a match implying the suspect’s presence at the scene. This is possible because every person’s DNA is unique, distinct in some way from every other person who has ever lived or who will live – with the exception of identical twins who share exact DNA. However, while each individual’s DNA is unique to that person, current testing methods do not allow for a complete DNA profile.

Methods are improving however. First developed in 1985 by British scientist Alec Jefferys and colleagues, DNA testing has come a long way from the early days, both in quality and cost. Analyses that once required a fresh tissue sample the size of a quarter can now be completed with just a few partially degraded cells from a cold case file. Tests which were once impossible, such as distinguishing individual DNA profiles from the mixed semen of multiple rapists, have now become common place and DNA testing has even been used to compare non-human samples, such as the seeds of a tree which were used to tie a suspect to a crime scene in one recent Arizona case.

How accurate is a match?

The entirety of a DNA sample is not currently tested. Instead, sections known to vary substantially among humans are sampled and compared. While any single sample site has about a 7.5% chance of matching another random human, insufficient for criminal identification, the odds increase exponentially with every additional sample site considered. At about 4 to 6 sample sites – called markers – identification becomes reasonably possible. For good measure, the standard FBI test compares 13 markers, leading to greater than 1 in 1 billion certainty that a suspect is in fact the person who left the sample. In other words, by comparing 13 quality (which means highly variable) markers, less than 7 people in the entire population will be statistically probable matches. Given that the pool of suspects cannot ever include the entire population of the planet, this level of certainty can provide the evidence necessary for conviction beyond a reasonable doubt.

(For more details on these numbers please visit here)

What’s the catch?

Naturally, there are some caveats about the numbers listed above. While the statistics are solid, they have been tested repeatedly by many different mathematicians and scientists the world over, the accuracy of any purported match comes down to process; and here is where CSI type shows drive unreasonable expectations about DNA results. As with much of the criminal justice system, human error is a major factor. Collecting DNA samples from a crime scene often requires expert training and professional equipment. Samples must then be transferred and stored in approved ways to avoid degradation. A qualified lab must properly utilize expensive edge equipment to analyze the sample to produce a DNA profile. That profile is then compared against either a sample taken from a suspect or against one of the many available databases of DNA profiles, which imply a number of privacy and security concerns, and a match determined.

Every step of this process is fraught with potential error. Crime scenes can be contaminated or evidence planted, samples can become contaminated or degrade, labs might employ outdated techniques or scientists might not have the requisite training, computer error could be introduced, jurors might give too much weight to DNA evidence; and all along the way, human malfeasance might undermine the validity of a match. And all this stems from but a single situation; a single trial.

Institutionalization

While for individuals the results of a single DNA match are of the utmost importance, whether the evidence is being used to convict or exonerate, for the criminal justice system – and its promise of fairness and justice for the public as a whole – systemic problems become the more critical consideration. On this level, a number of issues must be dealt with if DNA testing is to remain a viable tool in criminal prosecutions.

Evidence from analysis of the UKs national DNA database shows that a disproportionate number of the DNA profiles in the system come from minorities. While it can be argued that this represents the increased prevalence of minority convictions, the increasing use of so called “cold matches” wherein DNA from every arrested person is periodically checked against the database, leads to possibilities of institutionalized racism and prejudice. Additionally, the increasingly popular practice of collecting samples from arrestees prior to any conviction is leading to a number of very serious privacy and security considerations. DNA samples can, in addition to providing material for a possible match to a criminal investigation, also reveal family connections, expose health conditions, and even predict sexual orientation or inclinations.

Protecting the future

DNA profiling has become an increasingly important feature of our criminal justice system, both exonerating the innocent and convicting previously unreachable suspects; however its future use is imperiled by a growing number of developing problems with the practice. More must be done to protect this valuable criminal justice resource from corruption, error, and prejudice.  The worrisome backlog of untested samples should be cut down, and the public at large – many of whom ultimately become jurors – must be better informed about the accuracy, and potential shortfalls, of the science.