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Limits on Recovery in Medical Malpractice in California

Civil Litigation, Dental Malpractice, Medical Malpractice, San Francisco0 comments

The Medical Injury Compensation Reform Act (MICRA) was passed in 1975 and heavily regulates how medical malpractice actions are prosecuted in California.  One of the more significant details of the law is that it limits pain an suffering damages to $250,000.  This applies to all forms of medical malpractice including: dental malpractice, emergency room malpractice, Birth injuries, Pediatric meningitis, Misdiagnosis, Failure to diagnose, Anesthesia or surgical errors.

This means that no matter how much the patient has suffered they can never recover more that $250,000 for their suffering.  Thus, a young child who, because of medical malpractice, will goes blind, can never be awarded over $250,000 in pain and suffering.  This stands in stark contrast to ordinary negligence where there is no cap.  So, if someone was to spill very hot coffee on themselves they would technically be able to get more in pain and suffering than the child who has gone blind from medical malpractice.

The end result is that a certain amount of legal know-how is required to make to maximize the damage potential of the case.  Generally this involves a thorough review and presentation of economic damages.  Because no cap exists on such damages, the more you can characterize as economic the more value can be added to the case.

The Attorneys of Jones and Devoy are experienced in medical malpractice actions throughout the San Francisco Bay area and are familiar with the special restrictions that laws like MICRA apply to cases.  So when considering whether to bring a lawsuit or sue a doctor consider consulting with us before trying to navigate these treacherous waters.

Child Custody in California

Custody, Family, San Francisco, San Francisco Family Law, Uncategorized, Visitation0 comments

The California Family Code provides that Custody and Visitation of a child shall be ordered according to the “best interests” of that child.  “Best interests” however, is a difficult to define term.  Often, both parents will believe that it means they should be the primary parent, and, so, a judge is left to decide with only this broad guideline.

While legally speaking there is no presumption in favor of joint custody, often, judges tend to gravitate towards joint custody and equal timeshare; the idea being that spending as much time with both parents as possible is usually in the child’s best interest.

This does not always mean that joint custody and equal visitation will be ordered though.  What are the considerations that result in a judge ordering sole custody or a majority timeshare to one parent? Here are just some of the many, many, considerations a court may take into account:

  • Circumstances where a parent has committed domestic violence.
  • Circumstances where the parents are separated by distance such that equal custody and visitation is impracticable.
  • If one parent does not have the mental or physical health to care for their child.
  • If one parent refuses to obey custody orders.
  • Lifestyle choices of a parent interfere with their ability to care for a child.
  • The wishes of the child (if the child is old enough).
  • The living environment the parent can provide to the child (though “wealth” is not considered).
  • The parents agree otherwise.

As you can see from just this short list, there are many considerations a judge can take into account when determining what is “best” for child.  In this way the family code is designed to give a level of flexibility to order custody and visitation based on the particular situation.

The result of the code being written in this manner is that child custody and visitation matters are extremely fact intensive: because a judge can consider so many different facts your child custody case depends on gathering up as many facts as possible and then trying to present the most powerful ones in order to convince the judge of your perspective.

The attorneys at Jones & Devoy have experience in child visitation and custody cases throughout the San Francisco Bay Area and can help you understand what are realistic goals and possible outcomes. From Oakland to San Francisco to  San Mateo to San Jose family law courts apply the law slightly differently, and, knowing the court and law is critical to the success of your case.

Breaking up outside of Marriage

Family, LGBT, San Francisco0 comments

Many modern families function in today’s day and age without marriage.  Legally though this creates some unique problems.  For example, what happens if a long term couple who is never married breaks up?  Often many couples own significant property together and/or have children together and so even though they were never married they find themselves facing problems typically associated with a divorce.

The answer, it turns out, is fairly complicated: the family code in California is primary structured to address marital or registered domestic partnership relationships, or, biological or adopted children, but it is not structured to deal with property division of unmarried couples.  So, if a couple is not married and has issues outside of child custody, then they have to rely on a different set of laws that were not necessarily structured with a couple breaking up in mind.

For example, if a couple is never married, owns property together, and has children then family law will govern their rights and responsibility over the children (such as child support, visitation and custody), but, general civil law will govern the division of assets.  The civil law portion that often arises for such couples as either: a Partition Action or a Marvin claim.

A partition action is a lawsuit that asks a judge to divide a piece of property if co-owners cannot agree on how to do this.  A Marvin claim is a lawsuit that asks a court to enforce agreements that arose during the relationship.  (Ie if one partner says “honey I will take care of you forever” the other partner asks for palimony).

Some actions like Marvin claims, are pretty challenging to bring, while other claims, like partition actions, have a more rote application. Whether you are trying to understand your rights or avoid a prolonged court battle, the attorneys of Jones & Devoy have experience with non-martial dissolution and can make sure that your rights are protected.

Special Issues in LGBT Divorces

Family, LGBT, San Francisco, San Francisco Family Law, Uncategorized0 comments

Because of the patchwork way that laws emerged for gay, lesbian and queer couples, undoing a marriage or domestic partnership can present many unique challenges.   For example, certain states like Kentucky, explicitly do not recognize unions similar to marriage such as civil unions or registered domestic partnership.

So, while the recent supreme court decisions finds an ultimate right to marry, it has not found an ultimate right to a domestic partnership or civil union.  The bizarre result of this is if you are getting divorced in Kentucky there is a chance that the judge in Kentucky will not dissolve your registered domestic partnership.

Thankfully, California has law that any party may file in the state to dissolve a registered domestic partnership or marriage if their home jurisdiction will not recognize them.  While California’s progressive laws certainly reduce the number of issues that might come up in a same sex divorce or dissolution it cannot eliminate them all.

Than San Francisco based lawyers of Jones & Devoy have experience helping members of the LGBT community navigate the ever changing landscape of same sex law.

Tenant Buy Out Agreements in San Francsico

Civil Litigation, Landlord-Tenant, San Francisco0 comments

Tenant protection laws are so strong in San Francisco that it is often more expedient for a landlord to pursue a “Tenant Buy Out” rather than trying to evict them.  A Tenant Buy Out is where a landlord pays a tenant a set amount of money to leave the unit.

For many years these agreements were unregulated and only general contract law applied.  However, as housing became tighter and tighter, more and more landlords started using  in tenant buyouts in San Francisco.  In response, in March of 2015 San Francisco passed the Administrative Code 37.9E.  37.9E requires landlords to make very particular disclosures, in writing, to a tenant before they present or negotiate a Buy Out Agreement.

Failure to follow the procedures allows a tenant to void the entire agreement.  Further, a tenant can try to recover attorney fees during such a voiding action.  So, landlords are advised to be extremely careful when trying to effectuate a buyout.

The attorneys at Jones & Devoy have experience in meeting all of the requirements for tenant buy-out agreements and can make sure that your interest is well protected.

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    Alexander T. Jones

    Mr. Jones has an extensive background in both general litigation and family law as well as experience in various business and transactional matters…

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    Practicing civil litigation with an emphasis on client advocacy, Mr. Devoy is experienced in litigating a wide range of legal matters …

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