Elopement is one of many risks to older adults with dementia. Even in the early stages of dementia, wandering behavior can be dangerous as seniors may be unable to find their way home or recognize hazards. Family members caring for someone with dementia at home often learn about this dangerous behavior when their loved one leaves home and gets lost. In fact, the fear of their loved one escaping and getting hurt is often a large factor in deciding to place a family member in a nursing home.

Families trust nursing homes to protect their loved one and give them the best care possible. One of the last things most families ever anticipate is a phone call from the facility informing them that they lost their loved one. Sadly, it’s more common than many would believe.

Nursing home elopement is often the result of understaffing in nursing homes and inadequate elopement precautions. Nursing homes have a duty to protect the safety and well-being of residents which includes preventing elopement and the factors that allow it to happen. If your loved one has been hurt after leaving a nursing home, a nursing home elopement attorney at Berman & Riedel, LLP can help you hold the negligent facility accountable.

What Is Elopement in a Nursing Home?

Wandering is normal and expected behavior among residents with dementia and it can even be beneficial. With an adequate wandering management program in place, residents that can safely wander can get exercise and may have less anxiety. Elopement is a specific type of wandering in which a resident leaves the facility unsupervised.

Dementia wandering comes in many forms which can be categorized by the intent and cause. Types of wandering include:

Elopement in nursing homes is generally distinguished from other forms of wandering because it involves purposeful and often repeated attempts to leave an area and poses a serious risk.

What Is Elopement Risk and Which Nursing Home Residents Are a High Elopement Risk?

Nursing home residents with Alzheimer’s disease and related dementia disorders should automatically be considered at risk of elopement. Along with cognitive impairment or dementia, other risk factors for wandering and elopement include:

People with dementia may also exhibit behavior that indicates a high elopement risk, or a risk that they will try to escape the facility, such as:

Research has found several patterns in dementia patient elopement:

Assessing Elopement Risk

Residents should be assessed to determine their risk of elopement. There are many ways to define wandering, and the severity of a patient’s dementia may not be immediately apparent. A resident’s condition can also deteriorate which increases their elopement risk.

There are many tools that can be used to assess the risk of wandering:

Dementia Wandering – Why Do People with Dementia Wander?

Wandering behavior is very common in people with Alzheimer’s disease and other forms of dementia. According to a study published in Psychogeriatrics, about 1 out of 5 people with dementia living in the community wander and 3 out of 5 dementia residents in institutional settings like nursing homes wander.

While the risk of wandering hasn’t been studied extensively between different forms of dementia, wandering or elopement risk does increase as cognitive impairment becomes more severe. It does seem to be more common with Alzheimer’s which commonly causes amnesia and spatial disorientation.

Dementia and wandering are complex and the reasons for the behavior aren’t well understood. There are many possible reasons for wandering behavior and several theories. It may be caused by a disconnection between regions of the brain responsible for motor, memory, and visuospatial functions. A PET study found a distinct pattern among patients known to wander as well as correlations between the types of wandering (such as pacing) and specific areas of the brain.

Wandering and exit seeking behavior may happen when a confused resident is:

There is no such thing as a dementia wandering stage. Wandering behavior can occur at any stage of dementia.

Consequences of Eloping – the Dangers of Patient Elopement

Not all wandering is dangerous or harmful for residents, but elopement, or actually escaping the facility, is incredibly dangerous. There have been many cases of elopement that have resulted in death. Residents with dementia who leave the facility are likely unable to find their way back, recognize dangers, or know how to get help (or that they even need it). This can lead to death due to exposure to the elements, drowning, a traffic accident, or some other hazard.

Sadly, a study of more than 300 cases of dementia elopement found that 30% of the people with dementia who eloped were dead when they were finally found. There is a 25% fatality rate for nursing home residents not found within 24 hours of elopement. This increases to 54% if they are not found within 96 hours.

Research has also found that nursing home residents prone to wandering are also at an increased risk of hip fractures. A study identified risk factors for hip fractures in nursing homes and found the most significant predictors are: female, impaired cognition, severity of dementia, wandering, able to independently walk and perform activities of daily living, diabetes, and easily distracted. About 36% of nursing home residents with a hip fracture die within 6 months and 17% previously ambulatory residents become fully disabled.

This is yet another reason for nursing homes to take elopement precautions seriously.

At a minimum, elopement from nursing home facilities can leave vulnerable residents frightened and confused for many hours. It can also cause them to miss critical medication that can worsen existing health conditions and lead to injury or worse.

What Is the Best Way to Handle Wandering Patients? – Elopement Precautions & Interventions

Wandering behavior itself is not a problem that needs to be eliminated: a wandering resident should be able to safely wander in the facility in a way that allows them to get exercise and alleviate anxiety. However, a nursing home facility has a legal duty to both provide a safe facility and prevent elopement.

Beyond assessing each resident’s elopement risk when they are admitted, a variety of elopement precautions can be taken that preserve resident rights and promote a safe wandering environment without restraints.

Adequate Staffing and Supervision

Understaffing in nursing homes is one of the biggest risk factors for nursing home elopement and nursing home neglect. Many cases of elopement from nursing home facilities are caused by inadequate supervision, understaffing, and overworked staff who simply do not have the ability to manage the number of residents they are assigned. Even the best monitoring bracelets and door alarms cannot overcome understaffing when there are not enough staff members to respond to alarms or implement protocols.

Locks and Alarms on Nursing Home Doors, Exits & More

It’s no replacement for adequate supervision and staffing, but equipping exits that residents should not be operating with alarms and locks (in compliance with fire codes) is one of the most critical nursing interventions for wandering residents. Depending on the resident’s mobility and risks, alarms may even be used on beds and wheelchairs.

Monitoring Bracelets for High-Risk Patients

For residents with a high elopement risk, electronic monitoring may be appropriate. The WanderGuard bracelet is one example. A WanderGuard nursing home bracelet contains a unique serial number and is activated wirelessly to provide location monitoring and trigger alarms and/or lock monitored doors with geofencing technology.

Adequate Protocols & Training

It isn’t enough for a nursing home to have adequate staff; they also have a duty to make sure staff have the adequate training and the facility has sufficient protocols in place.

Some areas that should be covered in training include:

Nursing homes should not underestimate a resident’s ability to wander or elope. Even non-ambulatory residents in wheelchairs can wander and escape the facility without proper safeguards.

In the event a resident does elope, the facility should have missing resident protocols. Staff should be trained on these protocols and potentially even put through periodic missing resident drills. Basic protocols should include:

Other Elopement Precaution Methods

Nursing homes with dedicated memory care units, or facilities that specialize in Alzheimer’s disease and other forms of dementia, often adopt creative solutions to the question of how to keep Alzheimer’s patients from wandering dangerously. Exit diversion strategies like disguising doors don’t just reduce the risk of elopement – they save residents from avoidable stress and reduce staff time spent redirecting residents.

The mere appearance of an hospital-grade exit door can prompt exit-seeking behavior. For some residents with dementia, an “exit” sign can be interpreted very literally as a direction.

Disguising exits will not work for all residents with dementia as it depends on the individual, the stage, and the severity of the dementia. However, methods like disguising doors or placing black mats can be very effective when combined with other precautions like alarms. Different types of dementia cause damage to the brain’s ability to process visual information, recognize objects, and judge distances. These methods of disguising exits and redirecting residents take advantage of these changes to visual processing:

Door masking, such as disguising a door as a bookshelf or painting it the same color as the wall, should be done with care because it can affect exiting during an emergency. A local fire marshal can usually assist with interpreting safety codes.

Another method for redirecting residents and preventing elopement is setting up authentic-looking fake bus stops and shelters in common areas and gardens and adding benches in hallways. These additions attract wandering residents to sit and wait for a bus. This can prevent elopement while making it easier for staff to supervise them and alleviating stress or confusion that may have prompted their wandering.

Nursing Home Elopement Liability & the Duties of a Nursing Home

Nursing homes have a duty to provide adequate care, maintain a safe environment, and protect vulnerable residents from escaping. The duties of a nursing home include:

The requirement to assess residents for elopement risk and develop a care plan is a federal law under the Omnibus Budget Reconciliation Act or the Nursing Home Reform Act of 1987.

While the facility must provide a safe, secure environment, any elopement precaution measure should be weighed against the rights of residents. This means residents cannot have their movement and autonomy restricted beyond what is necessary such as the use of restraints.

When a nursing home resident is allowed to escape, nursing homes can generally be held liable. Nursing homes must not only assess resident elopement risk and implement reasonable nursing home elopement precautions, they must also take prompt action to locate and return missing residents.

At-risk nursing home residents should not be allowed to simply walk out of a secure facility. It is almost always the result of nursing home negligence, whether the facility failed to assess the resident, did not adopt adequate precautions, or did not have adequate staff levels or training to supervise residents.

Schedule a Consultation with a Nursing Home Elopement Attorney

When California nursing homes fail to ensure adequate supervision, elopement risk assessments, and security, they may be liable under state and federal law if their negligence results in a resident getting hurt. If your loved one has been allowed to leave the facility unsupervised and suffered injury or even death, an experienced nursing home elopement law firm can help you seek justice and hold the facility accountable.

Berman & Riedel, LLP represents nursing home residents and their families throughout California. Our law firm specializes in cases of nursing home negligence and abuse with case results that speak for themselves. Contact a nursing home elopement attorney at our law office today to schedule a free consultation to discuss your case.

Most nursing home residents rely on a careful treatment regimen and medication to maintain their health and quality of life. When nursing homes, physicians, nurses, or pharmacists are negligent and allow medication errors to happen, residents can suffer serious harm.

Despite strict federal and California regulations governing the ordering, storage, administration, monitoring, and recording of medications, medication errors in nursing homes are very common.

If you suspect your loved one has been the victim of nursing home abuse or medical malpractice involving medication errors, an experienced California medication error attorney can help.

What Is a Medication Error?

The most widely used definition of a medical error comes from the National Coordinating Council for Medication Error Reporting and Prevention (NCC MERP):

“A medication error is any preventable event that may cause or lead to inappropriate medication use or patient harm while the medication is in the control of the health care professional, patient, or consumer.”

Medication errors can include events that cause harm to the patient, have the potential to cause harm, “near miss” events, and mistakes that do not actually cause harm. These mistakes can happen at any point in the chain of treatment from prescribing and dispensing the drug to administration and monitoring.

California Nursing Home Medication Regulations

California nursing homes or skilled nursing facilities (SNFs) are licensed by the California Department of Public Health. Most are also certified to participate in Medi-Cal and Medicare and must meet California and federal standards. Nursing homes are subject to federal and California care standards and usually Medi-Cal and Medicare standards as well related to medication administration and management.

Title 22 CA Code of Regulations requires skilled nursing facilities to meet many pharmaceutical regulations:

There are also specific long-term care medication administration guidelines under Title 22:

Here are additional important nursing home regulation requirements.

Finally, residents must be free of significant medication errors under Title 42 § 483.45. Medication errors in nursing homes must be kept at or below a rate of 5%.

Causes of Medication Errors & How to Prevent Medication Errors in Nursing Homes

Despite many clear long-term care medication administration guidelines, nursing home medication errors are common. These prescription errors are usually preventable and caused by carelessness, understaffing, and poor management. Here are some of the most common causes of medication errors in nursing homes – and what facilities should do to prevent them.

Improper Administration of Medication

Many medication errors in nursing are related to incorrect drug administration. This includes using the incorrect administration technique, administering the wrong dose, giving medication to the wrong patient, or administering the wrong drug.

Nursing staff have a duty to follow medication instructions and make sure drugs are administered correctly. This means:


Poor Communication

Sadly, many medication mistakes happen due to poor communication between nursing staff, nurse practitioners, physicians, hospitals, and emergency rooms. There are many communication issues that are common in long-term care settings:


There are many ways nursing home facilities can support better communication among staff and care providers:

Dangerous Adverse Effects from Inappropriate Medications

Most nursing home residents take at least one prescription medication, but many have a complex drug regimen with multiple prescriptions. Older adults are already at an increased risk of adverse effects from medications, but this risk increases with multiple drugs. When a medication poses a high risk of adverse reaction or is considered unnecessary, it’s considered an inappropriate medication.

For example, antipsychotics are commonly overprescribed despite research showing they can be dangerous for older adults who are more likely to experience seizures as a result.

Warfarin is one of the most common medications used in nursing homes. It’s used to reduce the rate of stroke associated with atrial fibrillation, but research has questioned the safety and quality of warfarin therapy in long-term care. About 10% of nursing home residents receive warfarin treatment, but less than 50% of time is spent within the therapeutic range.

Preventable medication injuries and near misses are common and about 30% of adverse effects like bleeding are preventable. The most serious, life-threatening, or fatal events, which happen at a rate of 2.5 per 100 resident-months on warfarin, are preventable 60% of the time.

One study of Georgia nursing homes found 46.5% of patients received at least one inappropriate medication based on the Beers criteria and almost 13% of patients had at least one adverse outcome.


Proper screening for risk factors can reduce the risk of adverse drug events. Effective screening tools like the Screening Tool of Older Person’s inappropriate Prescriptions (STOPP) and the Screening Tool to Alert to Right Treatment (START) help predict adverse medication events and help clinicians review medications that may be inappropriate in older adults. The CMS Adverse Drug Event Trigger Tool helps recognize common, preventable adverse drug events, risk factors, and triggers.

Look-Alike and Sound-Alike Drugs

Look-alike or sound-alike (LASA) medications are easily mistaken for each other and may lead to serious harm if the error is not noticed before it reaches the patient. It’s estimated that LASA errors are involved in 6.2% to 14.7% of all medication error events.

Here are just some examples of prescription drugs in nursing homes with similar names:

In elderly or frail patients, these errors can cause serious side effects, drug interactions, and even death. For example, atenolol treats angina, hypertension, and heart rhythm disturbances while allopurinol prevents gout and treats kidney stones. Giving a patient with normal blood pressure atenolol by mistake can cause loss of consciousness, an increased risk of falls, and even death.


ISMP maintains a List of Confusing Drug Names which can help providers and nursing homes develop safeguards to avoid wrong medication errors. ISMP offers many suggestions for preventing prescription mistakes including

Poor Handwriting

The illegible scrawl of doctors is a common joke, but it’s a problem that can have serious consequences for patients. Research estimates 21% of handwritten prescriptions have at least one error. Even worse, a correctly written prescription can be misread or misinterpreted by pharmacists and hospital workers.

A decade ago, sloppy handwritten prescriptions were responsible for over 7,000 deaths and even more adverse effects every year. These deaths have declined dramatically since the widespread adoption of electronic prescriptions, but handwritten prescriptions are still used by some physicians and facilities.


Using a computerized provider order entry (CPOE) system. This ensures prescriptions and treatment instructions as well as lab and radiology orders are entered and received electronically to eliminate errors caused by handwriting.

Medication Borrowing

This happens when understaffing and poor medication management collide. During med pass, overwhelmed staff may borrow medication from one patient and give it to another to speed up medication administration. While the intention may be to replace the borrowed medication, busy staff can forget and patients may miss their dose. Medication borrowing is even more dangerous when staff fail to account for or note the borrowed medication which can lead to additional errors.

A 2008 ISMP survey found half of the 1,296 nurses surveyed borrowed drugs when the doses for patients was missing.


Other Forms of Nursing Home Negligence & Medical Malpractice

There may be many other reasons for medication errors in assisted living facilities and nursing homes, many of which rise to the level of negligence or malpractice.

How Common Are Nursing Home Medication Errors?

About 66% of all adults in the U.S. take at least one prescription drug, but this rate rises to 75% for 50- to 64-year-olds, 87% for seniors 65 to 79, and 91% for elderly people aged 80 and older according to Georgetown University’s Institute for Health Care Research and Policy. Nursing home residents are more likely to rely on prescription medications and more likely to take two or more medications every day.

How many medication errors occur each year? About 1.5 million people are harmed by medication errors and an estimated 7,000 to 9,000 Americans die as a result of a medication error every year.

The statistics on medication errors in nursing homes and long-term care facilities are frightening:

The Office of the Inspector General released a 2014 report finding 1 in 3 skilled nursing facility Medicare beneficiaries were harmed by a temporary harm or adverse event within their first 35 days’ stay. About 60% of these events were preventable.

37% of these adverse events were related to medication. One of the most common issues was excessive bleeding caused by anticoagulant use which resulted in hospitalization or even death.

A 2017 study followed 25 nursing homes in North Carolina to evaluate a web-based medication error reporting system. Over one year, 23 of the 25 facilities entered 631 medication error reports for 2,731 “discrete error instances” as many mistakes happened repeatedly before they were detected. Of the 631 reported errors, 51 were reported to have a serious impact on the patient requiring intervention, monitoring, or worse. One of the serious mistakes required transportation to the emergency room and two required intervention necessary to sustain life.

The most common types of medication errors were:

The most commonly reported causes of these errors included:

47% of errors happened during medication administration, 38% occurred during documentation, and the rest were related to dispensing (11%), monitoring (3%), or prescribing (2%).

Licensed practical nurses (LPNs) were responsible for the medication errors in 59% of the cases followed by registered nurses (22%), support staff (11%), pharmacists (6%), physicians (1%), and medication aides (1%).

Just seven medications were involved in 28% of the prescription errors: lorazepam, oxycodone, warfarin, furosemide, hydrocodone, insulin, and fentanyl.

Antipsychotics are often prescribed to nursing home residents without a valid diagnosis and despite serious risks. A 2016 study found 16% of nursing home residents were on antipsychotic medication. 68% of residents with dementia in 57 nursing homes were taking antipsychotics and, in many cases, families and patients were not warned of the dangers or the medication was administered without consent.

Who Is Liable for Nursing Home Medication Errors?

Prescription errors can never be completely avoided, but the majority of these mistakes are preventable. Medication errors can be considered nursing home abuse or medical malpractice when they are the result of negligence by the facility or medical providers.

Multiple parties may be held liable for medication errors in nursing:

A medication error lawsuit can help you recover compensation for the harm your loved one suffered and make sure they get the proper medical care they need. An experienced California nursing home abuse lawyer can help you investigate your loved one’s case, gather evidence, and hold the responsible parties accountable.

Contact a Nursing Home Medication Error Attorney for a Free Consultation

If your loved one has suffered harm from a medication error, the first step is informing your loved one’s primary care doctor or calling 911 if it’s a medical emergency. Your long term care ombudsmen can also help you as an advocate to ensure your concerns are addressed and your loved one’s health is guarded. The next step is contacting a California medication error attorney to help you explore your legal options and make sure your loved one gets the care they deserve.

Berman & Riedel, LLP is a tireless advocate for nursing home residents and their families with case results that speak for themselves. Our law firm is located in San Diego, but we accept nursing home medication error cases throughout California. Contact our law office today for a free case review with a San Diego nursing home abuse lawyer.

A concussion is a type of brain injury that’s common in all types of accidents, from car accidents to falls. Unfortunately, many concussions are not apparent at first or may only cause very subtle symptoms. This can lead injury victims to presume they are fine and do not need treatment.

How hard do you have to hit your head to get a concussion? The truth is you do not even need to hit your head to suffer a concussion. Brain injuries can occur when the brain strikes the inside of the skull without any external trauma.

We’ll explore common misconceptions about how you can get a concussion and why you should seek treatment as soon as possible if you are injured or have concussion symptoms – even if you did not hit your head or lose consciousness.

Can You Get a Concussion Without Hitting Your Head?

One of the most dangerous myths about concussions is that a concussion can only happen after a blow to the head. The truth is you can get a concussion from a car accident without hitting your head, or from any accident that causes sudden, violent movement of the head or rapid deceleration.

Concussions are trauma to the brain that happen when the brain strikes the inside of the skull. This can happen when your head strikes your steering wheel, the ground, or a hard surface. It can also happen due to rapid deceleration or a violent twisting or shaking motion.

There are many well-known examples of concussions and other forms of brain damage that do not involve a blow to the head. You may be familiar with examples such as:

To imagine how easy it is to suffer a concussion without hitting your head, imagine your brain as a water-filled balloon floating in higher density saltwater in a jar. Shaking the jar gently or moving it does not cause the balloon to touch the sides of the jar. If the jar is struck hard enough, or you move the jar very fast and stop suddenly, the balloon will be struck against the jar.

When a vehicle stops suddenly in a crash, your body continues to move. If you are wearing a seatbelt, your body is forced in the opposite direction. However, the brain, which floats in a cushioning fluid, has nothing to stop its forward acceleration. It strikes the inside of the skull and, if the force is great enough, bounces and strikes the opposite side of the skull. This is known as a contrecoup-coup injury.

Concussions occur in much the same way when the brain hits the inside of the skull or the force of an accident cause more widespread damage to the brain.

This is why a brain injury from a car accident can happen at even low speeds.

Can You Get a Concussion Without Loss of Consciousness?

Another common misconception is a concussion requires losing consciousness. While a loss of consciousness is a sign of a concussion or more serious brain injury, passing out is actually uncommon. A study by the University of Pittsburgh Medical Center (UPMC) found less than 10% of concussions involved loss of consciousness.

Losing consciousness after an accident can indicate a more serious brain injury, but you should always seek medical attention even without loss of consciousness, headache, or other signs of a concussion.

How Much Force Does it Take to Get a Concussion?

A concussion happens when the force of impact or sudden deceleration causes the brain to move forcefully against the opposite side of the skull. There is no threshold of force that will result in a concussion for everyone as every person and brain is different.

G-force is a measure of acceleration against the gravitational pull of the earth. For years, researchers believed that concussions mostly happen at 90-100 g-force, but numerous studies are finding concussions happen frequently at 60g. 90-100 g-force is equivalent to the skull smashing into a wall at 20 mph. Far less forceful blows can cause a concussion.

The National Football League commissioned research using crash test dummies that calculated blows above 85g would most likely cause a concussion while anything below this would not.

However, the University of North Carolina’s Center for the Study of Retired Athletes found otherwise. Of the 13 concussions the researchers recorded over five seasons, six resulted from hits at or below the 85g threshold and seven ranged from 100g to 169g. Using helmets with sensors that recorded over 104,000 impacts, many hits over 98g did not cause concussions and just 0.33% of all blows over 80g caused concussions. Many hits at 60-63g did cause concussions, however.

It’s also important to remember that low-speed car accidents at just 5-15 mph can also cause concussions and other serious brain injuries. Low-speed crashes do not result in serious damage to the vehicle. Energy that doesn’t go into damaging the car is transferred into kinetic energy or acceleration. This is the cause of brain injuries. That means a lower speed crash with virtually no property damage has a higher chance of causing injury than a higher speed crash that causes structural damage to the car.

According to the Spine Research Institute of San Diego, a 5 mph car crash usually produces 10-12g of acceleration of the passenger’s head. The head has a higher peak acceleration than the vehicle’s peak acceleration. Even low-speed crashes can be sufficient to cause a concussion or a coup-contrecoup injury because they cause a proportionally greater energy transfer.
In fact, research even shows an inverse relationship between the potential for injury and property damage.

There is no link between the severity of damage to a vehicle in a crash and the severity of injuries.

Can You Have a Concussion Without Knowing?

Because many people believe that a concussion requires a blow to the head or losing consciousness, it’s common for accident victims to suffer a concussion without realizing it. This is especially true because mild concussions may have no symptoms at first or the symptoms may be disregarded.

After a fall, car crash, or sports injury, it’s possible for concussion symptoms to be masked by shock. They can even take days or weeks to develop. Some victims develop confusion after an injury that makes them unable to recognize that they may have suffered a brain injury.

A growing body of research even indicates that “subconcussive” damage can have a cumulative effect. A subconcussion is a possible brain injury that does not rise to the level of a concussion and generally has no symptoms.

The most common early symptoms of a concussion include dizziness, memory loss, headache, and confusion. Victims may mistakenly attribute these symptoms to the shock and pain of the accident itself. Mood and sleep changes and sensitivity to light and sound are more likely to be delayed by days or weeks.

How Do You Get a Concussion?

A concussion is a brain injury caused by a blow to the head or a jolt or sudden deceleration that causes the brain to strike the inside of the skull, axons to shear off, or more widespread damage to the brain.

Most people are familiar with common causes of concussions that involve blows to the head including contact sports like football and car accidents. It’s important to understand the many ways in which you can get a concussion without hitting your head including:

Symptoms of a Concussion to Watch for

After an accident, it’s a good idea to seek medical care right away. You should also watch for any symptoms that may indicate a brain injury, even if you did not get your head. These symptoms may not appear for days. A concussion may not be detected during initial medical treatment, but you should return to your doctor if you later develop symptoms.

Concussion symptoms without hitting head may include:

A headache is one of the most common symptoms of a concussion and a symptom that makes many injury victims first suspect they may have suffered a brain injury. However, a concussion without headache is possible with or without hitting your head.

Contact Berman & Riedel, LLP for a Free Consultation with San Diego Concussion Lawyers

Have you or someone you love suffered a concussion in a car accident, fall, or other accident? After seeking medical attention, your next step should be contacting an experienced San Diego brain injury lawyer to discuss your options.

Sadly, insurance companies often fight back against concussion injury cases, especially those involving low-speed collisions. They may claim you could not have been seriously hurt without significant damage to your vehicle or downplay the severity of your injury.
Berman & Riedel, LLP is prepared to fight on your behalf for the compensation you deserve to get the treatment you need and preserve your quality of life. We have secured life-changing traumatic brain injury settlements for our clients and we will work to do the same for you.

Our personal injury law firm is based in San Diego, but we represent injury victims throughout California. Contact our law office today for a free consultation with a California brain injury attorney to discuss the details of your case.

Despite the well-known dangers of texting while driving, a Harris Poll in 2022 found 70% of drivers have used a cell phone while driving in the past 90 days. 62% of respondents video called, talked, or texted on their phone while driving recently, 37% checked social media or another app, and a shocking 26% recorded or watched a video or livestreamed. At any given moment, the NHTSA estimates that 8% of drivers are using a hands-free or handheld cellphone.

Currently, 36 states ban handheld phone use and 48 states to ban text messaging while driving. What is California’s cell phone law? The hands free law in California was first passed in 2008 but it has been expanded several times. As a general rule, drivers in California cannot use a handheld device while driving, but hands-free devices are acceptable. Drivers under 18 are prohibited from using a cell phone in any way while driving.

California distracted driving law doesn’t just result in penalties for violations. If you are injured in an accident caused by a distracted driver, proving they violated a California texting and driving law can be enough to establish negligence.

Here is what you need to know about cell phone laws in California and how these laws can strengthen your case after an accident.

Understanding California Hands Free Laws

The California hands free law went into effect in 2008, prohibiting all motorists from using a handheld cell phone while driving. The law places even stricter restrictions on minors: drivers under 18 cannot use a cell phone while driving, even hands-free. A year later, the California Wireless Communications Device Law went into effect. This 2009 law prohibits drivers from reading, writing, and sending text messages while driving.

A third new CA cell phone law went into effect in 2017 to further strengthen rules against distracted driving. The 2017 law bars drivers from holding a cell phone while driving but allows the use of a cell phone as long as it’s mounted properly to a center console or windshield. However, the driver may only use voice control or a single swipe or finger tap to perform actions on the device. Before this law was passed, drivers could still hold their phone while driving if they were using speakerphone or voice control.

All three of these California text and driving laws prohibit certain behaviors while driving and establish penalties for violations. A fourth law that went into effect in 2021 adds an additional penalty for texting and driving in California.

California Vehicle Code (CVC) Cell Phone Laws:

New California Cell Phone Law (2021) – Violations Now Add a Point to Your Record

The latest of new driving laws in California in 2021 introduces an additional penalty for violating cell phone laws under the California Vehicle Code. Under the new law, which went into effect on July 1, 2021, a single point is issued to a motorist’s driving record if they have been convicted of the same cell phone violation in the past 36 months.

Existing California law prohibits adding points to a driver’s record for electronic device violations. However, the new law only applies to CVC distracting driving violations that occur within 36 months of being convicted for the same offense.

The California DMV issues points to a driver’s record for specific violations of the Vehicle Code. When a driver accumulates a certain number of points, their license can be suspended or revoked. A small number of offenses can result in automatic suspension such as driving without a license or driving under the influence (DUI), but other point offenses have a penalty of 1 or 2 points.

A driver can face license suspension or revocation if they accumulate: four points within 12 months, six points within 24 months, or eight points within 36 months. The California DMV will suspend a driver’s license for six months for being a negligent operator or having too many points.

One-point traffic violations include:

Two-point traffic violations are more serious and include:

How Much Is a Cell Phone Ticket in California?

Texting and driving fines in California are not cheap. The base fine is $20 for a first offense and $50 for a second or subsequent offense – but penalty assessments and fees significantly increase the cost of a ticket. A texting while driving ticket in California is at least $162 for a first citation and at least $285 for a second offense.

The penalty may seem high, but it’s currently the lowest base fine of any violation of the California Vehicle Code.

Is a Cell Phone Ticket a Point in California?

The new California cell phone law that went into effect in 2021 adds a point to your driver’s license only if you are convicted of a second CVC cell phone offense within 36 months. There are no points added to your license for a first offense.

Injured in a Crash? Proving a Texting While Driving Accident Case

If you are injured in an accident, you have the right to file a lawsuit against the at-fault party to seek compensation for the losses you suffered. In most cases, a successful case requires proving negligence which means the defendant failed to behave in a way a reasonable person would have in the same situation. This can be challenging, even in a case that seems straightforward, but there is another option if the at-fault driver violated a safety law.

Negligence per se is a legal principle that presumes someone is negligent if they violated a statute and caused injury to someone the statute was intended to protect. California cell phone laws are a good example as these laws are designed to prevent accidents caused by distracted drivers.

To establish the defendant was negligent per se, you will need to show that they:

A California texting and driving accident lawyer can help you build your case by gathering evidence that shows the defendant violated cell phone laws and this behavior caused your injuries. A citation issued to the other driver, eyewitness statements, and traffic camera footage can all be evidence that they violated the law. Your attorney will also seek a subpoena from their wireless provider which can show when phone calls and texts were made and sent to see if they overlap the time of the accident.

Negligence per se is rebuttable which means the defendant can challenge the presumed negligence in a few ways:

Establishing negligence per se shifts the burden of proof to the defendant who must provide evidence demonstrating why they were not negligent. This is not easy in cases involving texting while driving. Unless the defendant can prove they had very good reason for violating the law, such as an emergency that required they use their phone, proving negligence per se may be enough to succeed in your case.

Contact a San Diego Distracted Driving Accident Lawyer

Have you been injured in a crash caused by a distracted driver? An experienced San Diego personal injury lawyer can help you pursue the fair compensation you deserve. Berman & Riedel, LLP represents clients throughout California from our San Diego law office. Our firm has recovered over $100 million in settlements and verdicts with case results that speak for themselves.

Contact our law office today to schedule a free case review and discuss your case.

You have probably heard the term “negligence,” especially how it applies to personal injury cases. When someone is negligent and causes another person injury, the law says they are responsible for paying for the injured person’s losses and suffering. Proving negligence is not always easy as there are several elements of negligence that must be established. However, there is another legal principle that can make it easier to win a personal injury case.

If the at-fault party caused your accident because they were breaking the law, “negligence per se” is an important legal doctrine that can reduce your burden of proof and make it easier to recover the compensation you deserve.

Here is how the California negligence per se doctrine works and how it can play a crucial role in your personal injury lawsuit.

What Is Negligence Per Se?

Negligence per se is a legal doctrine that presumes someone is negligent if they caused injury to someone else because they violated the law. The legal negligence per se definition is covered by California Evidence Code Section 669.

To win a personal injury case, you must prove the defendant was negligent and their negligence was a major factor in causing your injuries. In a typical case, this requires proving the defendant did not behave in a way a reasonable person would have in the same circumstances. Negligence per se means the defendant’s actions are already presumed to be unreasonable once they violate the law.

Negligence per se example:

Joe strikes another car in an intersection. Rebecca, the other motorist, suffers a fracture and concussion. Police cite Joe for speeding and texting while driving.

Rebecca files a lawsuit against Joe seeking compensation for her injuries. During the trial, Rebecca establishes Joe was negligent per se because he violated laws designed to avoid accidents. She does not need to separately show that Joe’s behavior was unreasonable when he caused the accident.

Negligence Per Se Elements

There are four key elements of negligence per se. To establish negligence per se, you must show:

To prove the first element, your case must show that the defendant violated a specific statute or regulation. In a car accident, this may involve showing the defendant was speeding, driving under the influence, texting while driving, or committing another type of traffic violation.

To have a valid case for negligence as a matter of law, you must be a member of the class of people the law was designed to protect and you suffered harm the law was intended to prevent. This is straightforward with traffic violations: traffic laws are designed to prevent accidents and injuries to other motorists, pedestrians, cyclists, and passengers.

Finally, you must show that it’s more likely than not that the defendant’s conduct and violation of the law was a proximate cause of your injuries. Proving causation can be straightforward, but it isn’t always clear. There are also two elements to causation: the actual cause and the proximate cause. Actual cause is the action that instigated the accident or harm. Proximate causation means something was a significant factor in causing the accident or harm.

Actual cause is easy to establish in some cases such as a motorist running a red light and hitting someone in the intersection. Proximate cause can be more complicated. To prove the defendant’s violation of the law caused your accident, the court may consider:

What Is the Difference Between Negligence and Negligence Per Se?

The general standard of negligence requires proving four elements:

The doctrine of negligence per se can be used to prove the first two elements of negligence: standard of care and duty of care. By establishing negligence per se, you have shown the defendant owed you a duty of care (you were someone the statute was designed to protect) and they violated the standard of care you were owed by violating the law.

This means it is no longer up to a jury to decide what the standard duty of care was in your circumstances, or how a reasonable person would have behaved. They are also not left to decide if the defendant’s behavior was outside of what a reasonable person should have done.

Negligence Per Se Is a Rebuttable Presumption

It’s important to understand that negligence per se can be rebutted. This means the defendant has the right to submit their own evidence to counter that they were negligent. However, establishing negligence per se shifts the burden of proof from the plaintiff to the defendant who must now prove they were not negligent when they violated the law.

According to Evidence Code Section 669, the presumption of negligence can only be rebutted by proving:

Once you have established negligence per se, it isn’t easy to counter. The defendant must provide evidence that a reasonable person could be expected to break the law in the situation. They may submit evidence that:

While difficult, it isn’t impossible to counter negligence per se. If the defendant’s brakes failed and they could not slow down before the accident, they may not be found negligent per se. A defendant talking on the phone while driving may have a valid excuse if they were reporting an emergency like an injured pedestrian they passed on the street. A driver may also have a valid excuse for speeding if they were transporting someone to the doctor or hospital whose condition suddenly worsened.

How Negligence Per Se Affects California Personal Injury Cases

If you believe the at-fault party was violating the law when your accident occurred, the negligence per se doctrine can make it easier to win your case. By proving negligence per se, you do not need to prove the standard of care and how the defendant’s behavior differed from how a reasonable person would have behaved in the same circumstances. You have also shown that the defendant’s actions were a proximate cause of your accident.

Proving negligence per se alone isn’t enough to win your case. You must still show actual causation, generally the easier aspect of causation to establish, and your damages. However, it makes the burden of proof much lower and shifts the burden to the defendant. If the jury does not find the defendant was negligent per se, they will still consider other evidence in your case to decide if the defendant was still otherwise negligent.

A California personal injury lawyer will present the strongest case possible to establish negligence per se. Depending on the circumstances of your accident, proving the defendant violated the law may involve:

Juries in California are given California Jury Instruction CACI 418 or “Presumption of Negligence per se” to help them determine when a defendant is negligent as a matter of law. The instructions clearly state that if the plaintiff proves the defendant violated the statute in question and it was a substantial factor in causing the harm, the jury must find the defendant was negligent without a valid excuse.

If you have been injured due to someone else’s careless, intentional violation of the law, Berman & Riedel, LLP is ready to fight for you. Our San Diego law firm represents clients throughout California in cases involving car accidents, bicycle accidents, dangerous products, and more. Contact our law office today to schedule a free consultation with a San Diego personal injury lawyer to discuss your case and how we can help.

Most people mistakenly believe that Americans become malnourished because they do not have the financial resources to buy food, but malnourishment is usually caused by dozens of interconnected factors like disease, prescription medications, poor nutrient absorption, difficulty chewing or swallowing, and depression.

Malnourishment can happen at any age, but seniors are at the highest risk of malnourishment. Elderly malnutrition is a hidden epidemic that affects almost 1 out of every 2 older adults.

Elderly nutrition problems can be hard to recognize but need to be taken seriously. The effects of malnutrition in adults can be wide-reaching and life-threatening, especially in older adults. Seniors can be malnourished even if they are a normal weight or overweight and even if they do not look malnourished or sick.

Here is what seniors, caregivers, and family members need to know about malnutrition in elderly adults including what causes malnourishment, how it can be recognized, and treatment options.

What Does Malnutrition Mean?

There is no widely accepted definition of “malnutrition” but it’s generally accepted to mean under-nourished. Malnutrition most often refers to any of the following that result in an adverse effect on someone’s health, function, or body composition:

Someone may be malnourished if they are not getting enough calories and experience involuntary weight loss. It can also refer to someone who is not getting enough protein, vitamin C, or other necessary nutrients.

Malnutrition can come in many forms. Protein energy malnutrition or protein-energy undernutrition in seniors is most common.

Elderly Malnutrition & Why It Happens

As we age, we usually become more sedentary. Combined with natural changes to body composition and bodily functions, this leads to reduced muscle mass and increased body fat. While this naturally comes with a reduced caloric need, seniors are at high risk of malnutrition.

Anorexia of aging, or the reduced appetite and food intake in the elderly, is a major factor in malnutrition with serious consequences. This term was coined to describe a number of conditions common among frail elderly people that aren’t simply part of a traditional syndrome or disease.

Nutritional concerns for elderly people are complicated. Along with natural changes in appetite and nutritional needs, seniors often have health concerns that make it hard to get the nutrition they need. Geriatric nutrition is also complicated by medications and unique issues like bereavement, depression, finances, and living conditions.

Causes & Risk Factors for Malnutrition in Older Adults

Malnutrition in older adults is a complicated issue. There is rarely a single cause; most malnourished seniors are dealing with interconnected issues that contribute to malnourishment. Natural changes that come with aging already contribute to nutritional concerns for elderly people, but disease, medical interventions, and external factors can combine to make malnutrition a greater threat.

There are many risk factors for malnutrition in elderly people ranging from environmental to psychological and physiological. The most common risk factors and underlying causes of malnutrition are often called the “nine D’s” of geriatric weight loss. Other factors can also be involved in malnutrition including living conditions, financial resources, accessibility of food, and whether the senior has a social and family network.

Dysphagia (Difficulty Swallowing)

A common problem experienced by the elderly is an inability or difficulty swallowing, eating, or drinking. It affects about 15% of seniors. Along with malnutrition and dehydration, dysphagia can even cause pneumonia as liquids and food are misdirected to the lungs.

Dysphagia can be caused by:

Dysgeusia (Reduced Sense of Taste)

Changes in taste are common in older people. Some experience a persistent bitter, salty, or metallic taste while others find their sense of taste muted, completely absent, or familiar tastes dramatically changed. Dysgeusia can be caused by medications, smoking, changes in the tongue, oral health problems, nutritional deficiencies, inflammation, neurological disorders, and nerve damage. Beyond the age of 50, taste bud cells also lose their sensitivity and regenerate less frequently.

Reduced sense of taste can decrease appetite by affecting quality of life and the enjoyment of eating. Up to 17% of adults experience dysgeusia at some point, but it’s even more common in seniors. One study found up to 11% of elderly people taking multiple medications experience this side effect.


Many forms of physical dysfunction can contribute to malnutrition. Reduced gut integrity and function can cause intestinal infections and impair nutrient absorption. Immune system dysfunction can cause more frequent and severe infections and reduced wound healing, both of which can cause malnutrition. Seniors with physical disabilities may struggle to get and prepare food.

Drugs (Medication Side Effects or Drug Interactions)

Medications are a commonly overlooked cause of malnutrition in the elderly. Because older adults are more likely to have one or more chronic medical conditions, the rate of polypharmacy (using multiple drugs) increases. One study found that 43% of surveyed seniors took more than one medication and 51% of them were taking five or more medications. The more medications an older adult takes, the greater the risk of nutritional problems.

The most commonly used classes of medications to treat seniors are:

Many medications can cause nutritional concerns for elderly patients. Drugs can reduce nutrient absorption, affect appetite, make it difficult to swallow, lead to dry mouth and oral health problems, and other complications that directly lead to malnutrition in seniors.


Virtually any diseases or conditions can contribute to malnutrition in the elderly. Older adults who have had a stroke or have chronic obstructive pulmonary disease (COPD) or cardiac disease have a higher nutritional need yet they frequently fail to reach protein and nutrition goals. The dietary recommendations for diabetes can also be challenging for geriatric patients. Health conditions can contribute to nutritional imbalance or malnourishment which can worsen the underlying conditions and lead to microvascular disease.


Chronic diarrhea is a major risk factor for weight loss, malnutrition, and dehydration. It affects about 10% of seniors and can be disabling. It can be caused by everything from colorectal cancer, inflammatory bowel disease, and irritable bowel syndrome to medications. Malnutrition can happen when seniors avoid foods that seem to trigger diarrhea, experience impaired nutrient absorption, or due to side effects of medications to treat chronic diarrhea.


Dementia doesn’t just impair memory and activities of daily living; it also affects everything from posture to physical function. Weight loss due to malnutrition often precedes dementia’s onset and it tends to worsen as the disease progresses. People who have dementia may not remember to eat and develop changes in appetite, preferences for food, and difficulty swallowing. Between 13% and 57% of dementia patients have difficulty swallowing.

New research even shows that malnutrition is a good predictor for faster functional loss in dementia.


About 1-5% of older adults who are living in the community experience major depression. 11.5% of hospitalized seniors and 13.5% of seniors who require home health care experience depression. Older adults living in nursing homes may be at the highest risk of depression.

One study found 14.4% of participants in nursing homes had major depression, 14.4% had minor depression, and 18.6% were diagnosed as “depressive” according to records and physicians. However, less than half of nursing home residents with major depression were diagnosed as depressive, half were receiving antidepressants, and almost 18% were receiving antidepressants without a diagnosis.

Depression can be caused by chronic pain, financial issues, abuse, chronic health conditions, reduced function, loneliness, and bereavement. It can lead to reduced appetite and has been shown to be a predictor for poor nutrition and weight loss that leads to malnutrition.


Tooth loss, poor oral health, and poorly fitting dentures can all limit a senior’s choice of food and their ability to chew. Malnutrition also affects oral health and may lead to tooth decay, gum disease, and other issues when bacteria and acids in the mouth become imbalanced.

About 57% of older adults between 65 and 74 wear dentures, according to the American Dental Association. About 70% of seniors have at least one lost tooth. The use of complete dentures, especially improperly fitting dentures, is associated with malnutrition in geriatric people. However, using partial dentures is associated with better nutrition compared to older adults who do not wear dentures.

Changes in Hunger Hormones

A hormone known as peptide YY tells the brain when you’ve had enough to eat. Research shows that this hormone may be overactive in elderly people who then feel full long before they have eaten enough food. A University of Plymouth study found that participants over 80 had the highest levels of peptide YY. Interestingly, aging doesn’t reduce level of ghrelin, or the hormone that tells the brain we’re hungry, as previously thought.

Living in a Nursing Home

Sadly, older adults living in a long-term care setting are at high risk of becoming malnourished. According to estimates, 12-50% of seniors in hospitals are malnourished compared to 23-60% of seniors in nursing homes and other long-term care facilities. Some estimates place the rate of malnutrition in nursing homes at 40 to 85%.

Symptoms of Malnutrition in Elderly People

Malnutrition in the elderly is a shockingly common problem that’s often missed, not just by families but even medical professionals. There are many validated tests for nutritional screening, but the signs of malnutrition in adults are frequently missed which can increase the risk of mortality and morbidity, reduce quality of life, and cause more frequent and longer hospital stays.

Important malnutrition in elderly symptoms include:

Unintentional Weight Loss: One of the Most Crucial Malnutrition Symptoms

The most obvious sign of malnutrition to watch for is unintentional weight loss. This is usually defined as 5% or more of body weight over 1 to 12 months. It’s estimated that up to 7% of the general population experiences involuntary weight loss of 5% or more, about 27% of frail seniors 65 and older experience unintentional weight loss.

Unintended weight loss can be caused by many things, but malnutrition should be one of the first suspicions in elderly adults. Unfortunately, this is one of the most misunderstood malnourishment symptoms.

Even overweight adults can become malnourished, especially older adults. Yet seniors who are perceived to be at a healthy weight or overweight are often not even assessed for malnourishment. Weight loss may even be viewed positively in overweight adults.

Using a Malnutrition Screening Tool for Elderly People

If you are concerned and believe a loved one may be malnourished, there are several geriatric nutrition screening tools you can use. The results of these assessments can then be discussed with your loved one’s healthcare professional.

The MNA assessment tool is used by many dieticians and medical providers because it’s validated and designed specifically for geriatric patients. The DETERMINE Checklist is also a helpful assessment tool but it isn’t appropriate for all cases, especially nursing home residents.

The results of the screening tool should be discussed with a medical provider so necessary intervention can be taken as quickly as possible.

Nursing Interventions for Malnutrition in the Elderly

Nurses play a critical role in preventing, recognizing, and treating malnourishment in seniors. Dieticians and other medical professionals are also involved in malnutrition intervention or monitoring patients at very high risk.

Research shows that multifactorial interventions are most effective at treating malnutrition in elderly people to improve function and frailty than any single treatment. Malnutrition treatment for elderly patients can include:

How long does it take to recover from malnutrition?

Early intervention is very important with elderly malnutrition. If caught early, malnourishment can be reversed fairly quickly. The longer it goes on, the harder it is to treat malnutrition in the elderly. It can take several months to recover from malnutrition, but frail elderly people may suffer serious consequences even after treatment.

Elderly Malnutrition Consequences

The effects of malnutrition in elderly people are serious, long-lasting, and affect everything from physical function and independence to quality of life, ability to heal, and overall health.

Potential consequences of malnutrition in the elderly include:

Death from malnutrition in the elderly is the biggest risk. Unintentional weight loss is a major predictor of mortality with 9% to 38% of people passing away within 1 to 2.5 years of losing 5% or more of their body weight. People who experience 5% or more unintended weight loss within one month have a 4x higher mortality rate.

Malnutrition in Nursing Homes – a Potential Sign of Neglect

If you suspect a loved one in a nursing home is malnourished, it’s important to take action quickly. Like dehydration in the elderly, malnourishment can be a sign of nursing home neglect. Nursing homes have a duty to provide residents with adequate medical care and supervision which includes recognizing risk factors for malnutrition, assessing patients regularly, developing customized treatment plans, and treating malnourishment quickly to prevent serious complications. Unfortunately, neglect is often the result in understaffing in nursing homes.

If you believe your loved one is at immediate risk of harm, you can call 911 for help. Otherwise, your long term care ombudsman can help investigate your concerns and find a resolution.

Your next step may be contacting a nursing home neglect lawyer to help. An attorney can help you hold the negligent nursing home accountable to recover compensation for the harm your loved one has suffered. This can be used to ensure your loved one receives the care and quality of life they deserve.

Berman & Riedel, LLP is a San Diego law firm specializing in nursing home abuse and neglect. We represent nursing home residents and their families throughout California. Contact our law office today to discuss your case and how we can help with a free case review.

One of the most common questions accident victims have once the initial shock of the accident passes and real-world obligations start to pile up is, how much is my case worth? While many damages are easy to calculate, the impact of pain and suffering is very difficult to value and may be worth more than your medical bills and lost earnings.

If you have suffered serious injuries after an accident, it’s important to understand how pain and suffering damages are calculated and what an injury attorney can do to prove the full extent of the turmoil, physical pain, and psychological trauma you have experienced.

What Is Pain and Suffering?

The term “pain and suffering” is used to refer to the many forms of psychological and emotional harm a victim may suffer after an accident. They are considered a type of non-economic damages because emotional or psychological harm has no intrinsic financial value. Because the harm is very subjective and the same injuries and circumstances can affect people in very different ways, determining damages for pain and suffering can be challenging.

Pain and suffering can refer to any physical pain, emotional suffering, or psychological distress suffered after an accident. Pain and suffering examples include:

Understanding Pain and Suffering Damages

California personal injury law allows accident victims to seek compensation for their losses from the at-fault party. The compensation you can recover is not limited to your financial losses like medical bills, property damage, and lost wages; it also includes non-economic damages. These are personal losses you have suffered that have no financial value including the physical pain you have suffered, the impact of your injuries on your daily life, and any psychological or emotional turmoil or trauma you experience.

The purpose of pain and suffering damages is to compensate a victim for the many ways in which the accident has affected their life beyond financial costs.

There is no cap on non-economic damages in California except in cases involving medical malpractice. In these cases, the cap on non-economic damages like pain and suffering is $250,000. Starting January 1, 2023, new legislation increases the cap to $350,000 for cases that do not involve wrongful death. This amount is increased by $40,000 every January 1 until it reaches $750,000. The cap is $500,000 if the case involves wrongful death with the cap increasing by $50,000 every January 1 until it reaches $1 million.

How Much Is Pain and Suffering Worth?

This is a common question injury victims ask, but compensation for pain and suffering is complicated, especially when it comes to how much a jury will award as payment for pain and suffering. For some injury claims, pain and suffering may not be awarded at all or it may be a fraction of the total economic damages. A claim for pain and suffering can be worth many times more than economic losses in other cases, especially cases involving catastrophic injuries or significant harm.

To determine fair pain and suffering compensation, many factors unique to your case must be considered.

California jurors receive CACI injury instruction 3905A which explains the many forms of pain and suffering they can consider, including future suffering the victim is likely to experience. These instructions entrust jurors with “vast discretion in determining the amount of damages to be awarded” and specifically notes that there is no standard or fixed means to calculate pain and suffering damages.

The very subjective and personal nature of these damages makes pain and suffering settlement examples incredibly unhelpful.
To best understand how much a pain and suffering claim is worth, it helps to first understand how insurers calculate pain and suffering damages.

How Is Pain and Suffering Calculated?

Insurance companies consider several factors to reach a pain and suffering settlement amount. Some insurers use claims outcome advisor (COA) software that analyzes data provided by the claims adjuster to determine a settlement range. Some use a multiplier or per diem method. Insurers can even use a hybrid of these methods or none of them to determine pain and suffering compensation.

Juries do not use claims adjustment software, but they may also use a per diem or multiplier method and a broader consideration of the circumstances of the case.

Here's how to calculate pain and suffering according to these common methods and how personal injury attorneys instead propose a settlement for pain and suffering that considers the full impact on the victim’s life.

Colossus Personal Injury Calculator

Many major car insurance companies use Colossus claims adjustment software or similar products to value personal injury claims. Colossus was first licensed by Allstate as a way to standardize claims and minimize payouts. The software uses a hidden rules-based system to convert information inputted by a claims adjuster about the severity and nature of injuries into a numeric score to value pain and suffering claims.

Colossus uses more than 10,000 rules to determine the questions it asks an adjuster to generate a payout range. It attributes severity points based on injury codes. The software can even consider the jurisdiction and the injury attorney’s record of taking cases to court!

While this type of pain and suffering calculator is fine in theory to give insurers a starting point, it has many flaws.

Claims assessment software is designed to artificially lower the value of pain and suffering and other damages suffered by an accident victim. Artificial intelligence and software can never value the real impact of your injuries on your life or even recognize the many subjective factors involved in an accident.

Pain and Suffering Multiplier

Another way of calculating pain and suffering is a pain and suffering multiplier. Using this method, the insurer totals the economic damages in a case and multiplies the total by a multiplier of 1.5 to 5. The multiplier of 5 may be used for catastrophic injuries while the other end of the scale is for fairly minor injuries that do not need extensive treatment.

The variable or multiplier applied to damages can depend on:

It’s important to realize that this multiplier range is typical for insurers calculating a settlement offer – you will find many examples of pain and suffering settlements with multipliers much higher or even lower than this range. For serious injuries or cases that involve egregious behavior, the multiplier can be 10 or higher.

Pain and suffering multiplier examples:

Per Diem Method

In some cases, compensation for pain and suffering is determined with the per diem method. How to calculate pain and suffering per diem is straightforward: the number of days you suffered pain and mental anguish is multiplied by a dollar amount. This may be the amount you earn a day, but it may be lower for catastrophic injuries such as $20 per day for rest of your anticipated lifespan.

Insurers rarely use the per diem method to calculate pain and suffering damages for long-term injuries. Juries may use a per diem formula to award pain and suffering, even in cases involving catastrophic injury. A California personal injury attorney may ask the jury to award an amount such as $200 per day for every day the victim’s pain is likely to continue.

How a Personal Injury Lawyer Determines Pain and Suffering Damages

Insurance adjusters attempt to settle for as little as possible. They may use the lowest figure presented by their pain and suffering calculator or even adjust variables the software uses to reduce the value even further. Claims adjustment software can even consider the injury attorney’s track record and the likelihood they will file a lawsuit.

This is why it’s crucial to hire an experienced personal injury lawyer in California who is not afraid to take your case before a jury.

A personal injury lawyer will use a very different approach to value pain and suffering damages. Your lawyer must start negotiating with the insurance company by articulating what makes your case different and why the adjuster’s figure is inadequate. If the insurer is unwilling to reach a fair pain and suffering settlement, your lawyer must be prepared to file a pain and suffering lawsuit and present evidence and testimony to a jury who will consider factors that an insurance company disregards.

An experienced personal injury attorney will present expert testimony about the extent of your injuries and testimony from friends and family about how your life has been affected. This testimony will include specific details about the suffering and anguish you have experienced, such as being unable to hold your infant, being forced to leave a job you loved, or the basic tasks you are unable to perform without help. The jury can consider the real impact of your injuries as humans and more fairly determine compensation than any multiplier or software.

Schedule a Free Consultation with Berman & Riedel, LLP

After submitting a pain and suffering claim to an insurance company, you can be sure that the first settlement offer you receive will drastically undervalue the pain and anguish you have experienced. Working with an experienced California personal injury lawyer is important to help you fight back against these unfair offers and pursue the fair compensation you deserve for the devastating harm you have suffered and its lasting impact.

The San Diego personal injury lawyers at Berman & Riedel, LLP are committed to fighting on your behalf. We are not afraid to present your case to a jury with extensive experience at the negotiation table and in the courtroom. Contact our law office today for a free consultation with a San Diego personal injury attorney to discuss your case. While based in San Diego, we accept cases throughout California with case results that speak for themselves.

Medical liens are one of the most overlooked aspects of a personal injury case, but they can have a big impact on what you are able to recover for your injuries. If you don’t have insurance, you will likely face a medical lien after an accident for the treatment you receive in a hospital. Even with coverage, a medical lien will likely attach to your claim for any treatment you receive related to an accident. Medi-Cal recipients face an automatic medical lien whenever the program pays for accident-related injuries.

A medical or hospital lien is a common part of the personal injury claim process, but it takes many injury victims by surprise. The medical lien takes first priority when a settlement is paid out. The lien can entirely eat away at your settlement proceeds or even take the entire settlement. Victims may even be left owing a hospital money afterward with nothing gained from settling a case.

Here's what you need to know about California medical liens on personal injury settlements and how a personal injury lawyer can help you negotiate a lien and protect your interests.

What Are Medical Liens? How a California Medical Lien Works

A medical lien grants a healthcare provider such as a hospital or doctor the right to receive money from your personal injury claim to recover any money they are owed for your treatment related to the accident.

There are two broad types of healthcare liens: explicit and hidden.

A lien may be hidden, which means the injured person did not sign an agreement and is not aware the lien exists until the case settles. These usually come in the form of health insurance liens and personal injury settlements, most often from PPOs and HMOs. VA, Medicare, and Medicaid liens on personal injury cases are also common and do not require that you sign a new agreement.

With these medical liens, the provider’s right to make a claim against your settlement proceeds is in the fine print of your policy or the program itself.

The Medicare Secondary Payer Act (MSPA) is a federal law giving Medicare and Medicaid the right to pursue repayment from personal injury settlements and awards in the programs paid for any of the related medical expenses.

The Federal Medical Care Recovery Act and 38 U.S.C. § 1729 are federal laws that allows a lien to be placed for reimbursement of care provided by TriCare or the VA.

A healthcare lien can also be explicit. When you receive treatment for your injuries, the healthcare provider may be willing to provide treatment in exchange for a lien. You will usually be required to provide a Letter of Protection or a signed contract stating you will pay the provider the amount owed once your claim settles.

A healthcare provider will “perfect” their lien by sending a notice of hospital lien to the insurer and interested parties.

Not all healthcare providers are willing to provide services with a medical lien as they face risk. If your case is not successful, their only avenue to recover the money is suing you.

Who Can Place a Medical Lien on Settlement Proceeds?

Personal injury liens can be attached to your case if you have insurance, have government health benefits, or are uninsured. Medical liens on settlements can be placed by:

A medical lien can work in different ways depending on how it’s placed and the lienholder.

Health insurance and government health insurance programs use subrogation, a concept that means they have the right to be paid back for the cost they paid on your behalf. The insurers have the right to take your place to pursue the negligent party for the money. If you file a lawsuit or personal injury claim and recover compensation, the insurer has the first right to the money they are owed.

Unlike most health insurance companies, government programs like Medicare, Medicaid, and the VA do take your attorney’s fees and expenses into consideration. This means the amount of the medical lien is generally reduced in proportion to your cost to recover compensation.

Hospital liens, also known as explicit medical liens or a Letter of Protection, work differently. A hospital or other healthcare provider is agreeing to provide services with the right to be repaid from the proceeds of your case. They are essentially providing a credit. They do not have subrogation rights to pursue the negligent party; the accident victim who signed the agreement is responsible for paying the bill, even if the settlement does not cover the full amount.

You or your personal injury attorney are required to notify the proper agency if you make a personal injury claim. This can be done through the Medicare Secondary Payor Recovery Portal (MSPRP) or the CHAMPVA Potential Liability Claim form for the Department of Veterans Affairs.

You are legally obligated to notify DHCS within 30 days of filing a claim or action if you are a Medi-Cal beneficiary. The Medi-Cal lien process can be lengthy, and it’s similar to what you can expect with other health insurance liens.

How Are Personal Injury Settlements Paid Out?

Medical liens in California are complicated and have the potential to delay your settlement payout. Until an agreement is reached and the lienholder is paid, your settlement cannot be disbursed.

In some cases, you may be required to create a Medicare Set-Aside along with repaying medical benefits from your settlement. As a general rule, you must create a Set-Aside if you are a current Medicare recipient and settle a claim for more than $25,000 or settle for over $250,000 and are expected to receive Medicare within 30 months. The purpose of the Set-Aside is creating a fund to pay for future medical expenses Medicare is expected to pay.

Before you receive your settlement funds, all medical liens must be cleared and the attorney’s fees and costs must be paid. An important benefit of hiring a personal injury lawyer in California is they can attempt to negotiate your medical or hospital liens.

What Happens if I Lose My Injury Case?

What happens to a medical or hospital lien if you lose your personal injury case depends on the type of lien.

With a hospital lien, the patient is typically still liable for the remaining balance if they do not recover enough through settlement or a jury award, or if they lose their case. The hospital or provider can pursue you for the balance through collections or a lawsuit.

Most medical liens only give the insurer the right to collect on the lien if and when you recover compensation from a negligent party. With these personal injury liens, you are not liable for the balance if you lose your case.

Medical Lien Auto Accident Example

A car accident personal injury lien is very common and may involve multiple lienholders including your auto insurance company and health insurance company.

California Medical Lien Law

California law places some important limits on medical liens to protect your right to recover damages. Most limits like CCP 3040, the Made Whole Doctrine, and the Common Fund Doctrine only apply to subrogation, not hospital liens enforced by a signed agreement.

Hospital Lien Act (CCP 3045)

California Civ. Code § 3045 or the Hospital Lien Act spells out certain rights and responsibilities for healthcare providers and patients:

A Court of Appeal opinion places a burden on hospitals to prove their lien amount is “reasonable and necessary.” Other court opinions have also limited accident victims to recovering the amount of their bills paid by insurance, not the total billed amount. Essentially, California courts have found that the full amount medical providers bill is not a good measure of the value of the services as hospital charges are inflated and almost no one pays their standard rates.

This can make it easier to get a hospital lien reduced through settlement.

California Civil Code 3040 CCP

This California law limits how much health insurance carriers can receive from a victim’s personal injury settlement. Your insurance company is only entitled to recover the lesser of:

Under 3040 CCP, the cost of services will depend on how providers were paid by the insurer. With capitation, in which providers are paid a flat amount for every patient they see, the cost is capped at 80% of what providers pay in non-capitated cases. If the insurance company does not use capitation, the cost is the amount on the medical bill.

Made Whole Doctrine

This doctrine is a common law principle that applies to subrogation, or an insurer’s right to be reimbursed for costs paid on behalf of a policyholder. Under the made whole doctrine, the policyholder must be made whole after their accident before the insurance company can take money from the settlement proceeds or the policyholder as reimbursement.

The purpose of this doctrine is to ensure accident victims can exercise their right to be made whole by the negligent party.

If you are injured, you have the right to be made whole by the responsible party. If the responsible party can’t fully compensate you for the damages you suffered, this doctrine protects you from an insurance company taking money from a settlement amount already lower than your damages.

Many insurance companies use language in their policy contracts to bypass the made whole doctrine. California allows companies to use contractual language to override the doctrine. In some circumstances, an attorney may challenge this agreement if the provisions are not sufficient.

Common Fund Doctrine

This doctrine protects injury victims from bearing the full cost of their attorney fees without any help from insurance companies using their subrogation rights. Under this law, the party who recovers a common fund for the benefit of others is entitled to reasonable attorney’s fees from the fund.

In simpler terms, if an accident victim recovers compensation from the responsible party through a lawsuit, an insurance company can’t simply benefit from a subrogation claim and get reimbursed without paying a portion of the attorney’s fees too.

Under this law, you will not be forced to pay attorney’s fees and reimburse the insurance company when they did nothing to help you recover the compensation.

California Medical Lien Statute of Limitations

If you sign a hospital lien agreement, there is a statute of limitations of four years which begins if you break your promise to pay.

If you do not win your injury case or the settlement doesn’t provide enough money to pay the lien, the lienholder can only pursue you for the debt until the statute of limitations expires.

Note that most agreements have language that specifies that any settlement money recovered is held in trust for the hospital or provider. In these cases, the statute of limitations does not apply. This means you can’t recover compensation, fail to pay the hospital lien, and wait four years for the statute of limitations to expire – the hospital is still able to pursue you for the balance.

How do I Know if I Have a Medical Lien?

Many injured victims are unaware a medical lien exists until they file a personal injury lawsuit or make a claim.

How to find out if you have a medical lien:

Your personal injury lawyer will help you understand any medical liens in your case and file appropriate notices to insurers.

How a California Personal Injury Lawyer Can Help with Medical Liens on Settlements

A medical lien has the potential to eat up a large portion of your injury settlement. California personal injury attorneys can help you retain as much of your settlement as possible for your pain and suffering.

Most medical liens can be reduced, settled, or even waived depending on the circumstances. This includes Medi-Cal personal injury liens and health insurance liens.

An experienced California personal injury lawyer will work on your behalf to negotiate the reduction of a hospital lien. This includes verifying the lien is valid and perfected and the charges are reasonable and necessary. A release of hospital lien is an important aspect of negotiation to make sure the lien is completely cleared.

It’s best to begin negotiating medical liens as soon as possible, ideally before a settlement is reached. However, negotiating hospital liens after settlement may still be possible.

If you agreed to a hospital lien and signed an agreement, it’s especially critical to work with an experienced lawyer because you will still be liable for the bills if you lose your case or do not recover enough money. An injury lawyer can often negotiate a reduced lien amount in these cases.

At Berman & Riedel, LLP, we have decades of experience fighting for accident victims. We can help you find a healthcare provider who accepts medical liens in California if needed to cover your treatment and negotiate the agreement to protect your interests. We can also help with negotiating any personal injury lien in your case and making sure any lien or subrogation clause is valid and properly executed.

Contact Berman & Riedel, LLP today for a free case review with a San Diego personal injury lawyer to discuss your case. Our law firm is based in San Diego but we accept cases throughout California.

While car accidents, workplace accidents, and falls usually result in minor to moderate injuries, tens of thousands of people ever year sustain a catastrophic injury that affects them for the rest of their life.

Have you or a loved one been catastrophically injured? You are entitled to compensation from the at-fault party but recovering fair compensation for a life-changing injury can be challenging. Here is what you should know about catastrophic injury claims in California and how a catastrophic injury lawyer can help you.

What Is a Catastrophic Injury?

Catastrophic injuries are generally defined as permanent or long-term impairment or loss of use of an organ or limb, or an inability to perform gainful work. A catastrophic injury drastically alters the victim’s life and/or ability to work.

Catastrophic injuries may involve long-term or permanent cognitive impairment, paralysis, loss of hearing or vision, organ damage, or even significant scarring.

Depending on your lifestyle, hobbies, and employment, the catastrophic injury definition can be quite broad. Someone who is an avid skier may be catastrophically injured if they are no longer able to ski again, even if they are still able to walk and maintain gainful employment.

Definition of Catastrophic Injury

California personal injury law does not have a specific definition of a catastrophic injury, unlike some states. This is because some states operate a “no-fault” system in which injury victims must go through their own insurance policy to recover damages and cannot seek non-economic damages unless they are catastrophically injured.

In California, a specific legal catastrophic injury definition isn’t strictly necessary as victims are entitled to seek financial and non-economic damages from the at-fault party without overcoming a hurdle based on the severity of their injuries.

However, it’s still important to recognize when an injury is catastrophic because these injury claims can easily be worth millions in damages. Catastrophically injured victims will face lifelong consequences and medical expenses. This means insurance companies will invest more money and effort into limiting the payout for catastrophic injuries.

Types of Catastrophic Injuries

A catastrophic injury is any injury that significantly impacts your ability to work and/or quality of life. Catastrophic injury examples include:

Berman & Riedel, LLP represents clients who have suffered all types of catastrophic injuries. If you have suffered a catastrophic back injury, head injury, or other type of life-changing injury, we are ready to help you.

Common Catastrophic Accidents & Statistics

Any type of accident can result in catastrophic injuries. The most common types of catastrophic accidents involve:

How common are catastrophic injuries?

Spinal cord injuries: Research indicates there are about 17,800 new spinal cord injury cases every year in the United States. There are about 294,000 people living with a SCI in the United States. Vehicle accidents are responsible for almost 39% of spinal cord injuries followed by falls (32%), violence (14%), and sports (8%).

Traumatic brain injuries: Between 1.5 and 2.8 million people sustain a traumatic brain injury (TBI) every year in the United States. There are about 64,000 TBI-related deaths every year. About 75% of TBI injuries seen in ERs are mild, but around 70,000 TBI cases each year result in permanent impairment and long-term disability.

About 28% of TBIs are caused by falls followed by traffic accidents (20%), being struck by or against objects (19%), and violence (11%).

Pedestrian accidents: There were an estimated 6,516 pedestrian fatalities and 55,000 pedestrian injuries nationwide in 2020 according to the NHTSA. More than 14,000 injuries and 893 pedestrian deaths occurred in California in 2018 alone.

Amputations: There are at least 30,000 traumatic amputations every year in the U.S., 70% of which involve upper limbs. The most common causes of accidental amputations include traffic accidents, workplace accidents, agricultural accidents (such as lawnmower accidents), firearm and fireworks accidents, and electrical shock. There are nearly 2 million Americans living with amputation. About 25% of amputations in the U.S. are traumatic and accidental.

Eye injuries: About 1 million eye injuries occur every year and around 90% are preventable. Around 300,000 eye injuries each year are the result of workplace accidents.

Workplace accidents: 2.7 million non-fatal workplace injuries occurred in 2020 alone according to the BLS. There were 4,764 fatal workplace injuries that year, but many more were catastrophically injured on the job.

Catastrophic Injury Law in California

After a catastrophic injury victims have the right to seek compensation from the at-fault party. However, it’s important to understand your rights as California personal injury law affects how long you have to make a claim and the compensation you can recover.

California’s Pure Comparative Negligence System

The pure comparative negligence standard in California can affect the compensation you can recover in your personal injury case. Under this system, you can recover any share of damages that the defendant caused. However, if you share any amount of fault for your injuries, your compensation is reduced proportionately.

As an example, suppose you are injured in a car accident and suffer $85,000 in damages. If you had no fault in the crash, you would be entitled to the full $85,000 from the at-fault party. If a jury decides your own negligence contributed to the crash and you were 20% at fault, your award would be reduced by 20% to $68,000.

The defendant and their lawyer will likely try to shift as much blame as possible onto you to reduce how much they are responsible to pay.

Punitive Damages in California

A small number of personal injury cases are eligible for punitive damages which can be awarded on top of compensatory damages (economic and non-economic damages). In California, punitive damages can only be awarded if you can show clear, convincing evidence that the at-fault party acted with fraud, oppression, or malice.

California Civil Code 3294 defines oppression, malice, and fraud as:

Cap on Damages in Medical Malpractice Cases

There is generally no cap on the damages you can recover in a personal injury lawsuit, although in practice what you can recover will be limited by the at-fault party’s insurance coverage and assets.

Medical malpractice claims are an exception. Even if you suffer catastrophic injuries due to medical malpractice, you cannot recover more than $250,000 in non-economic damages.

Statute of Limitations for Catastrophic Injury Cases

You have a limited amount of time to file a personal injury lawsuit. In California, you generally have two years from the date of your injury. If your claim is against a government agency, you may have as little as 6 months. Medical malpractice claims must be brought within one year of when you knew or should have known about your injury, and you must give the healthcare provider 90 days’ notice before filing a lawsuit. In some cases, you have more time to bring a claim.

It's important to consult with an experienced injury lawyer as soon as possible, no matter how much time you have left to bring your claim. A delay in pursuing your case can make it harder to gather evidence needed to prove liability and the extent of your damages. This is particularly true if you have been catastrophically injured as your case will likely involve a thorough investigation and working with experts in many fields.

Compensation for a Catastrophic Injury

By their very nature, catastrophic injuries have a significant impact on your life and ability to work. You have the right to seek compensation from the at-fault party responsible for your injuries.

Because a catastrophic injury can result in life-long medical needs and disability, the financial damages alone can exceed $1 million. According to the Christopher & Dana Reeve Foundation, the average cost of paraplegia is $2.5 million for a 25-year-old or $1.65 million for a 50-year-old. The cost of high tetraplegia increases to $2.52 to $5.16 million depending on age. These costs only include health care and living costs and do not even consider lost wages, pain, and suffering.

Damages in catastrophic injury claims may include:

In rare cases, you may be entitled to punitive damages as well. Punitive damages are intended to punish the wrongdoer for the actions that caused your catastrophic injuries and provide compensation beyond your actual damages.

How Much Is a Catastrophic Injury Case Worth?

Catastrophic injury claims are often worth $1 million or more. However, there is no way to estimate the value of your case without carefully considering unique factors like:

The value of your case requires calculating not only the financial losses you have suffered but projected future damages. This includes lost wages, employment benefits, home adaptations, medical care, and home care. Your catastrophic injury lawyer will work with experts to calculate these damages.

Your non-economic damages like pain, suffering, emotional distress, reduced quality of life, and disfigurement will play a large role in how much your catastrophic injury case is worth. These damages can be estimated by multiplying your economic damages by a factor of 2 to 5, but every case is unique.

Whether you reach a settlement or your case is decided by a jury is also a factor. Only jury verdicts are public information, but many catastrophic injury cases result in multi-million-dollar jury awards. Catastrophic injury settlements are confidential. Taking your case before a jury has the potential to result in more compensation for your injuries, especially if you are entitled to punitive damages, but trials are expensive and time-consuming, particularly when catastrophic injuries are involved.

Why You Need a California Catastrophic Injury Lawyer

An experienced catastrophic injury attorney is critical to recovering the full compensation you deserve when you are catastrophically injured. There are many ways in which the catastrophic injury lawyers at Berman & Riedel, LLP protect your best interests and build the strongest case possible.

Insurance companies invest significant resources in fighting catastrophic injury claims

Because catastrophic injury settlements can easily reach millions, insurance companies are prepared to invest a significant amount of money and resources to reduce payouts as much as possible.

You will be up against a team of lawyers who will attempt to find weaknesses in your claim, minimize the severity of your injuries and damages, and blame you for your accident.

Under California’s pure comparative negligence system, every 1% of fault the plaintiff can shift to you reduces the damages they need to pay. An experienced California catastrophic injury attorney will fight back against attempts to shift blame.

Working with experts is necessary to prove your future damages

The value of future medical needs and lost earnings are extremely difficult to estimate. When it comes to catastrophic injuries, this is best done by experts who can testify about the nature of your injuries and the type of care you will need.

Your injury lawyer may work with medical experts who can testify about the extent of your injuries, the limitations you will face, how your injuries are treated, and the care you will need in the future. Financial experts can present data backing up the value of future earnings, employment benefits, and retirement contributions you will lose due to your injury.

Valuing non-economic damages requires persuasion and skill

Because non-economic damages do not have a financial value, it’s often left to a jury to decide how much a victim’s pain, suffering, and reduced quality of life is worth. A catastrophic personal injury lawyer must use skilled narrative to demonstrate these damages to a jury.

Psychological evaluations and testimony from friends, family members, and colleagues can all help to illustrate just how your injuries have changed your life. Your lawyer will present a persuasive case that demonstrates the affect of your injuries on raising children, participating in your favorite hobbies, and disruption to relationships.

Schedule a Free Consultation with a California Catastrophic Injury Attorney

Berman & Riedel, LLP is a prominent San Diego personal injury law firm representing victims throughout California. If you have been catastrophically injured due to someone else’s negligent or criminal behavior, we will fight tirelessly to help you seek justice and the compensation you need to preserve your quality of life.

Berman & Riedel, LLP has recovered more than $100 million in verdicts and settlements. Our case results include $8 million in a defective product case that caused traumatic brain injury and a seizure disorder and $3.3 million in a case involving a negligent driver who injured a pregnant woman and infant.

Contact our law office today for a free case review with a San Diego catastrophic injury lawyer to discuss how we can help you.

Has a loved one in a long-term care facility suffered serious consequences or even lost their life from a MRSA infection? Sadly, MRSA in nursing homes is a common problem, but infection is preventable. Thousands of older adults lose their lives to MRSA infection and complications every year, in many cases due to poor infection control and cleaning protocols, understaffing, and neglect.

At Berman & Riedel, LLP, we are committed to helping you hold the responsible parties accountable. We can help you seek fair compensation to move your loved one to a safe facility, provide the medical care they need, and support their quality of life.

Here is what you need to know about MRSA, proper MRSA protocol in nursing homes, and what facilities should do to protect your loved one.

What Is MRSA?

MRSA or methicillin-resistant Staphylococcus aureus is a potentially dangerous staph infection that is difficult to treat because it is resistant to many antibiotics. MRSA still responds to some antibiotics but treating serious infections can be challenging. It was first detected in 1961 about 20 years after methicillin treatment of Staph infections began.

MRSA is classified into two types:

HA-MRSA includes resistant strains of Staph acquired in a hospital or long-term care facility. These infections are usually more serious because they tend to be invasive or serious infections after a surgical or invasive procedure. HA-MRSA is also more likely to be resistant to other types of antibiotics like vancomycin.

Antibiotic Resistance and Seniors

Older adults face a higher risk of antibiotic-resistant infections for many reasons:

According to a study published in 2021, about 40% of fatalities due to the most common antibiotic-resistant infections occur in seniors. Over 11,000 adults 65 and older died from hospital- and community-inset infections in 2017 alone due to one of six resistant bacterial infections. The most common antibiotic resistant pathogens are:

CR Acinetobacter is the hardest to treat and most dangerous, but MRSA and ESBL-producing Enterobacteriaceae are more common.

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How Common Is MRSA in Nursing Homes?

MRSA and staph infections in nursing homes are incredibly common. About one-third of all Americans carry Staphylococcus auereus or staph in their nasal passages or on their skin. Around 1% of these people carry MRSA which is introduced and spread in nursing homes by staff, visiting healthcare providers, visitors, and residents.

In some settings, about 1 out of every 4 nursing home residents carries MRSA. Many do not realize they are carriers and may not have an active infection – but may spread it to other residents, often through healthcare workers.

A study published in the American Journal of Infection Control revealed the shocking prevalence of MRSA in nursing homes. After testing 37 surfaces in each of seven nursing homes, researchers found S. aureus on almost 29% of the surfaces and MRSA on 20% of surfaces.

A study in Minnesota found the average age of people with MRSA in health care facilities and hospitals was 68 years old.

MRSA Causes in Nursing Homes – How Elderly People Catch MRSA

MRSA is normally spread by direct skin-to-skin contact with someone who is infected or contact with items or surfaces contaminated with MRSA. If items are not sterilized or washed, MRSA can live on surfaces for days or up to 6 months. MRSA can live on towels, bedding, hard surfaces, and even dust and pets!
Nursing home residents catch MRSA in many ways:

Open wounds, including cuts, scrapes, incisions, or abrasions, are often the site of MRSA infections. However, you can catch MRSA without an open wound. Infection may occur in mucus membranes the nose or even on unbroken skin. Because the elderly are at increased risk of infection, MRSA infection is more likely to happen on intact skin.

MRSA Signs and Symptoms

MRSA symptoms depend greatly on the site of infection. A staph infection in elderly people may involve the skin, lungs, heart, bloodstream, urinary tract, surgical site, or other organs.

The typical MRSA skin infection may cause a range of symptoms:

A staph skin infection is often mistaken for a spider bite or even a pimple.

More serious MRSA symptoms include:

MRSA UTI Symptoms

MRSA can also result in a bladder infection or urinary tract infection (UTI). UTIs are one of the most common infections in nursing homes, often underdiagnosed, and may even lead to sepsis in elderly residents. While Staph is not a common organism associated with UTIs, the prevalence is rising – especially in long-term care facilities where patients who use catheters or have limited mobility are at an increased risk. A 2014 study found more than 5% of urine samples collected over six years showed MRSA infection. About 25% of sepsis cases begin as UTI. A MRSA UTI can lead to a MRSA bloodstream infection with far more serious symptoms and a higher mortality rate.

Many patients have no MRSA UTI symptoms. In the elderly, a unique and common symptom of UTI is confusion. A UTI may also cause pain during urination, a frequent and intense urge to urinate, cloudy or foul-smelling urine, sudden incontinence, reduced mobility, and agitation.

MRSA Pneumonia Symptoms

MRSA infection can lead to pneumonia, empyema, and lung abscesses. Common pneumonia symptoms may include:

MRSA Blood Infection Symptoms (Bacteremia)

If MRSA enters the blood, it can lead to a systemic bloodstream infection known as bacteremia. This can trigger sepsis, a seriously life-threatening condition that can cause acute organ damage, acute respiratory distress syndrome (ARDS), low blood pressure, decreased urination, and altered mental status.

What are the first signs of MRSA?

The first signs of MRSA are usually small, red bumps that become painful and deep abscesses of the skin. They may resemble a spider bite. The skin may be warm to the touch, tender, or swollen.

MRSA Treatment & Complications

MRSA infection is notoriously challenging to treat, especially in elderly patients with weakened immune systems. While MRSA is resistant to all ß-lactam drugs, it can still be treated with some antibiotics. It may be susceptible to a new class of MRSA-active cephalosporin.

Most MRSA infections respond to vancomycin, but strains with reduced susceptibility or full resistance to vancomycin have been reported since the 1990s. Treatment failure can happen even when strains are susceptible to vancomycin with a failure rate of 44% to 90% depending on the strain.

Many strains of healthcare-associated MRSA (unlike community-associated infections) are also resistant to other common antimicrobials and antibiotics like clindamycin, fluoroquinolones, and erythromycin.

If treatment with vancomycin fails for a serious infection, there are few other options aside from linezolid and trimethoprim-sulfamethoxazole.

Is MRSA deadly?

MRSA infection is described as a silent killer, particularly among seniors. The MRSA mortality rate ranges from just 5% to 60% depending on the patient’s age and overall health and the infection site. The MRSA in bloodstream survival rate is much lower than the survival rate for a MRSA skin infection, for example. In 2017, MRSA resulted in about 20,000 deaths.

The 2021 study on antibiotic resistance among older adults found invasive treatment-resistant infections are incredibly deadly. The 30-day MRSA death rate for seniors was 14.8% compared to 26.9% for invasive CR Acinetobacter infection.

Another study to predict the risk of death from MRSA found the following factors increase the risk of MRSA death:

Having lived in a nursing home, renal insufficiency, and cirrhosis are all independently associated with a 7% to 15% higher risk of death from MRSA within 90 days.

Complications of MRSA

In addition to its high mortality rate, MRSA infection can come with many complications for older adults, especially when it leads to an internal infection.
Potential MRSA complications include:

MRSA Precautions in Nursing Homes – How Facilities Can Prevent MRSA in Elderly Residents

In conjunction with the 2021 study, Pew Charitable Trusts released a policy brief highlighting steps it says the government and policymakers can take to reduce the risk of antibiotic-resistant infections in seniors. The brief recommended that the CMS push policies that incentivize hospitals to develop quality measures, track, and report the use of antibiotics and data on drug resistance, particularly in nursing homes.

MRSA poses a significant risk to vulnerable nursing home residents, but infection is preventable.

The use of gloves that are regularly changed, regular hand washing by residents and staff, and careful cleaning of all equipment and resident rooms are critical MRSA nursing precautions that should be taken.

The facility should have an infection control policy in place that addresses Staph infections. Nursing home residents with MRSA should remain in a single-occupancy room or with another resident with MRSA. Visitors and staff should always wear personal protective equipment (PPE) when visiting or caring for the resident and remove the equipment then wash their hands after leaving the resident’s room.

Sadly, MRSA infections in nursing homes are often related to understaffing and cost-cutting measures. If the nursing home fails to take adequate steps to prevent and treat MRSA, they can be held liable.

Schedule a Free Consultation with a California Nursing Home Negligence Attorney

Have you lost a loved one to a nursing home-acquired MRSA infection or has a family member suffered serious complications from MRSA? If the nursing home failed to take proper precautions to prevent MRSA or give your loved one the care they needed, they can be held accountable.

Berman & Riedel, LLP specializes in nursing home litigation in California. We represent families in seeking justice and holding negligent nursing homes accountable for abuse, understaffing, and neglect that harms the residents for whom they are entrusted to care. Our main office is in San Diego, but we handle nursing home neglect, abuse, and wrongful death cases throughout California.

Contact our law office today to schedule a free case review with a San Diego nursing home neglect lawyer to discuss your case.


Frequently Asked Questions

Below are answers to common questions people have about personal injury cases and working with a lawyer. During your initial consultation, we will be happy to answer questions that are particular to your case.

How Much Does It Cost to Hire a Personal Injury Attorney?

The attorneys at Berman & Riedel, LLP, accept cases on a contingency-fee basis. This type of agreement means you do not pay any attorneys’ fees out-of-pocket for legal representation. Attorneys’ fees are also contingent on the outcome of your case.

You benefit from legal representation in exchange for an agreed-upon percentage of a settlement or jury award. We will only recover a fee if you recover compensation.

Can You Tell Me How Much My Case Is Worth?

There is no way to determine the exact value of a personal injury case, especially early in your case. However, an experienced attorney can give you an estimated range based on their experience with similar cases.

There are many factors that may influence the value of your case, such as:

  • Your total financial or economic damages
  • The severity of your injuries
  • The impact of your injuries on your daily life
  • The strength of your case
  • Whether you share fault for your accident
  • Insurance policy limits 

Some damages are easy to calculate, such as lost wages and medical bills. Calculating the value of diminished earnings for the rest of your life or future medical needs; however, may require the help of experts. Non-economic damages like pain and suffering have no intrinsic financial value. These damages are challenging to calculate. 

If your case goes before a jury, you may potentially be able to recover more than you could through a settlement. However, this introduces a new element of risk: the jury. The circumstances of your accident and even how sympathetic you or the defendant are can influence the outcome.

During your consultation, and throughout your case, we will help you understand how these factors influence your case. We will also work tirelessly to document the value of all your damages and pursue maximum compensation on your behalf.

Will My Case Go to Trial?

The vast majority of cases are resolved by reaching a settlement agreement outside of court. Very few personal injury cases actually go to trial, but it is more likely if the facts in your case are in dispute, a legal issue is being contested, or you have a high-value case.

An experienced lawyer will build your case as if it will go to trial from the beginning. The stronger your case and evidence, the more likely a fair settlement will be reached.

How Do I Know If I Need a Personal Injury Lawyer?

If your case involves mostly property damage or minor injuries, you likely do not need a lawyer to handle a claim with the insurance company. The more serious your injuries, or the more complex your case, the more important it becomes to seek experienced legal counsel.

Remember that the insurance company is not on your side, even if the insurance adjuster seems sympathetic and you receive a settlement offer. If you are being blamed for your accident or sustained serious injury, a lawyer will help you protect your rights and build the strongest case possible. This includes calculating the full value of your current and future losses.

Legal representation is also vital if your case involves a complex area of law such as elder abuse or neglect, premises liability, commercial vehicle accidents, medical malpractice, or serious work-related accidents. Determining liability, navigating decades of legal precedence, and interpreting specific statutes in these cases is best done with years of relevant legal experience.

Do You Accept Cases Outside of San Diego?

While our law office is located in San Diego, Berman & Riedel, LLP, accepts cases throughout the state of California.


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