Politics: An example of a Right Wing Attack on The Jury System

 

 

Republican legislator Charles Dave Hood from Ormond Beach sponsored a bill (HB379) in the 2014 session of the Florida legislature.  If passed it will  change evidence about medical bills in all personal injury trials.  Negligent persons will not be accountable for all the damages they cause, and you will be stuck with the balance due.

Good old Charlie is one of the founding partners in the Daytona Beach law firm of  Smith, Hood, Bigman.  It has long been  a defender of insurance companies.  If you take a look at Charlie’s  firm website, it proudly specializes in helping insurance companies “defend” all types of injury  claims;  in other words reduce or eliminate payments to persons who make an accident injury claim. Insurance has been cutting checks to the firm for more than 25 years.  Now that Charlie is in Tallahassee he is expanding the scope of his favors to the insurance industry, to the detriment of his constituents.

House Bill 379 proposes to limit damages caused by careless and negligence of all types by depriving the claimant’s right to show the jury what his/her actual total medical bills are, or will be for future medical expenses.  Here is how Charlie’s Bill would work:

You or a loved one are driving home from work when a drunk driver runs a red light and T-bones you, causing serious injuries.  You are taken via ambulance to the ER, from the ER to the operating room and you get surgery.  Currently you have a right to a judgment against the other driver  for all of your medical treatment, even though you had little choice about what it is or whether you will have surgery. The at fault driver is fully responsible for the treatment under laws that date back for centuries.

Under Mr. Hood’s proposed bill the drunk driver gets to second guess your own doctors in the ER, surgery, and all followup care.  If passed, his bill would allow the drunk driver’s attorney (Picked  by an insurance company)  to argue evidence to the jury that you were overcharged.  The new defense would be that your doctors should have charged way less;  that they gouged  you with bills too high  for work not necessary.

The defense (insurance) attorney for the drunk driver would get to call other doctors and healthcare providers to question  your  doctors medical decisions related to the necessity of and the reasonableness of their bills.  Mr. Hood’s bill would actually force your attorney  to hire more expert witnesses to vouch for the necessity and cost of the care you got.  If the jury finds the care was unnecessary or too  expensive, you still would owe the money to your doctor, but the drunk driver would not have to pay as much.  Instead of focusing on the drunk driver, the defense attorney will ask a jury to refocus on what he claims your doctor overcharged you.  How good can that be for your doctor-patient relationship?

Bottom line:  The insurance company for the at fault driver gets a potential windfall in savings in the amount of your medical bills, but you would still have to pay your own doctors bills regardless.

You should demand  more from your politicians.   No doubt the insurance industry will claim the “savings” will be passed along to reduce insurance premiums.

 

 

 

 

 

Travel Expenses, Out of Pocket expenses, Court costs and injury cases

 Florida is lucky to have a lot of tourists who come here to enjoy our beaches, visit Disneyworld or the races at the Daytona 500. Sometimes these tourists get into an accident and can’t drive home with the rest of their family.  They have to get an airplane ticket.

So the question is:  Who pays for the ticket? Does the at fault party have to pay for the airplane ticket so the tourist can fly home? No.  If the victim has to travel somewhere to get specialized medical treatment, like  going to a burn unit, then I would say yes.  However, the law of damages does not allow for transportation just to go home.

Another common question that comes up in litigation is whether travel expenses by the client to attend depositions, court proceedings or mandatory medical examinations by the defense doctor is reimbursable?  No.  But if the victim is incurring expenses to go back and forth to therapy, doctors visits or a drug store to pick up prescriptions, Yes.

The courts have certain rules regarding “costs” of litigation.  Florida is like most states and does not allow attorneys to charge (the adversary) for their travel costs and travel time.  However, clients have to pay the costs.  Some attorneys are more prudent than others when it comes to travel expenses.  Some go First Class, stay in the nicest places and spend extra time on the road.

I suggest you get a clear understanding with your lawyer about his out of pocket expenses  so you will know what discretionary charges he is incurring.  Some lawyers subcontract medical records review and legal research to others.  It is called “outsourcing.”  In fact, some research is even sent to India for medical reviews.  

In medical malpractice and products liability cases the lawyer will likely incur $100,000 in expenses.  He will have to eat the expenses if he loses the case, so he will want to make sure the case is big enough to justify those expenses.  That explains why attorneys are careful about taking some cases and turn down others.

Getting a Claim Zapped by liens after a Settlement

 

 

Not every accident injury case can or should be accepted by an attorney.   There are often disputes about who was at  fault, whether the accident caused injuries, and how extensive they are.  Mix into the equation the unpredictability of collecting, people are left scratching their heads.  And, even when there is at last a small recovery after all bills have been raked off the top, clients look at the lawyer’s fee  as if to say why are you getting a fee when I am getting next to nothing.  Doesn’t make for good PR.

A valid lien for medical bills may swallow up a good case, making it impossible to for me to represent a client.  When a person is the victim of a bad accident, the last thing they think about is having to pay back all of the settlement for medical bills owed to an  insurance company or local hospital.  Therefore it is important for a lawyer during intake of a new case to find out asap how much liability insurance there is, and even if paid 100%, whether it is enough to satisfy all  of the clients’  doctors and hospital bills and insurance company rights of subrogation or reimbursement under ERISA.  He needs to tell the clients about liens and subrogation and ERISA and maybe even refuse the case.

Halifax Hospital has an aggressive collection policy.  It files a lien automatically every time the victim of an accident gets treated there even in cases not involving car crashes. Then, when the patient settles his case (or sometimes even before that) it blocks insurance companies from paying its insurance to the victim until it is paid off first.   Florida Bar rules REQUIRE an attorney to notify lienholders of settlements and to freeze money in their trust accounts until the lien is satisfied either by court order or an agreed deal with the lienholder. The same is true of ERISA claims, and claims where auto accident insurance companies claim a right of subrogation.

An attorney can work for months on a case only to find out that all of the money he finally got after hassling with the liability insurance company has to be handled over to an ERISA insurance plan, as a matter of law.  Neither his client or he get ZILCH!

 

Man’s Best Friend- The loss of a pet

 

Soco

 I came across the quote below while doing legal research.  Now that I have my own dog Soco, a rat terrier, this quote has come to life.  I can’t imagine what the loss of a loving pet means to its owner.  Here for your consideration is a final argument in a case concerning the loss of a pet.  Enjoy:

Perhaps the greatest closing argument ever made in an American courtroom was rendered in Warrensburg, Mo. in 1870 by George Graham Vest, a young lawyer who later served for 30 years in the U.S. Senate. One of his client’s hunting dogs had been killed by a neighboring farmer who thought the animal was killing his sheep. The owner sued and in the third and successful trial, when it came to arguing damages, Vest pleaded:

“Gentlemen of the Jury: The best friend a man has in this world may turn against him and become his enemy. His son or daughter that he has reared with loving care may prove ungrateful. Those who are nearest and dearest to us, those whom we trust with our happiness and our good name, may become traitors to their faith. The money that a man has, he may lose. It flies away from him, perhaps when he needs it the most. A man’s reputation may be sacrificed in a moment of ill-considered action. The people who are prone to fall on their knees to do us honor when success is with us may be the first to throw the stone of malice when failure settles its cloud upon our heads.

“Gentlemen, the one absolutely unselfish friend that a man can have in this selfish world, the one that never deserts him and the one that never proves ungrateful or treacherous is his dog. A man’s dog stands by him in prosperity and in poverty, in health and in sickness. He will sleep on the cold ground where the wintry winds blows and the snow drives fiercely, if only he may be near his master’s side. He will kiss the hand that has no food to offer; he will lick the wounds and sores that come in encounters with the roughness of the world. He guards the sleep of his pauper master as if he were a prince. When all other friends desert he remains. When riches take wings and reputation falls to pieces, he is as constant in his love as the sun in its journey through the heavens. If fortune drives the master forth an outcast in the world, friendless and homeless, the faithful dog asks no higher privilege than that of accompanying him to guard against danger, to fight against his enemies,and when the last scene of all comes, and death takes the master in its embrace and his body is laid away in the cold ground, no matter if all other friends pursue their way, there by his graveside will the noble dog be found, his head between his paws, his eyes sad but open in alert watchfulness, faithful and true even to death.”

The thing about a good final argument is that it is centered in true values.

In recognition of the close bond between animal and owner the Florida supreme court allowed a pet owner whose pet had been recklessly and maliciously killed to recover money damages for his mental anguish and punitive damages from the defendant in La Porte v Associated Independence, Inc. 163 So. 2d 267 (Fla. 1964).

 

 

Mud Racing in Bunnell without a Car

 

 

I just found out about a new kind of sport called Obstacle Racing. There is a coupon on Groupon for the bargain basement price of $45 (a 50% discount).  There is a club in Florida called Fl.ROC.  It has a Facebook page and seems pretty popular judging by the photos posted on its pages.  The next race will be on Cemetary Road, just a couple of miles south of Bunnell on April 12, 2014.  The Bunnell race includes a race on a 4 mile obstacle mud course.  There are similar races in about 7 states, and the sport is taking off.  You can go to Youtube.com to see what it is like.

Here is what Fl.ROC says about its Bunnell race:

“FL.ROC’s impish staff designed a 4-mile racecourse to break the flat monotony of routine street races. Muddy ponds and walls hinder solo runners and teams as they dash toward the finish line. After conquering an array of obstacles, contestants have time to celebrate and, if 21 or older, tilt back a complimentary beer. The culture of the race is festive: many contestants compete in absurd costumes to scare off mud monsters.”

I checked out the waiver form you have to sign before allowed to race.   It looks awfully scarey.  A lawyer who knew what he was doing put it together.  You can get killed or seriously injured doing the sport even if you are being 100% careful.  You certify you know how dangerous it is, that you are healthy enough to race, know that the water has not been tested, etc.  Forget about suing anyone if you get hurt.  If you get injured don’t bother calling me ’cause I would not take the case. The Bunnell obstacle course looks like 4 miles of hell. The event sponsors set up different waves of 200 depending on whether you are serious or not.  Only those in the competitive wave get awards.  The competitive race starts at 9:00 am sharp. The awards look like human skulls.  I wonder why?

Fees for the event include a mandatory $9 insurance fee.  I wonder what kind of legitimate insurance company would get involved in a race like this?  Besides the insurance,  costs of participation range from $55 to $90 depending on when you sign up.  And if you are going just  to have a beer and people watch then it costs $10 for parking.

The event reminds me of the TV show called Jack-Ass,  where people do crazy stuff on camera, some getting hurt really bad.  This phenomenon is for people with low self esteem and a death wish, or spectators who like to see people making fools out of themselves.  I bet you have a have a tattoo or some really ugly scars to get in.

ERISA and your settlement- When Insurance wants its money back

 

 

When your lawyer calls and says he has settled your case you want to know how much you will get.  There are several steps he has to take before you will know. He has to know if you owe any money back to any of the insurance companies that paid for medical care or lost income.  If your injuries are due to a car accident, then under Florida law you do NOT owe money back to your personal injury protection carrier for accident related bills.  You may owe some if you had “Medpay” coverage. If your bills were submitted to Medicare then it has a right to get part of its money back out of the settlement.

Some accident victims  have major medical insurance or disability insurance benefits with companies like Blue Cross-Blue Shield now called Florida Blue, or with United Health care. If the major medical policy is a part of a benefits package at work then there is a chance that your employer has set up an ERISA plan to help with a 401(k) and insurance benefits.  ERISA plans may require dollar for dollar pay back.  So, if there is a large chunk of money paid by your ERISA plan  for major medical benefits then it may claim every drop of the settlement is owed to the plan administrator.   Your lawyer should ask the administrator for plan documents to determine what the ERISA plan rights are against your settlement, and examine IRS filings.

I have represented clients with large medical bills.  Their ERISA plan want ALL of their settlements, and do not even allow them to pay for my fees and costs, or court costs if we had to go to court.  It is obvious that I would like to get paid and also that I want to put settlement money into my clients’ pockets rather than sending a large settlement to an ERISA plan administrator.

One of the things I have to check is IRS documentation available at www.freeErisa.com.  It requires a free registration to get plan information about the ERISA plan. IRS requires annual filings of Form 5500 (and attachments) which show whether the employer is “self funded” or whether the employer has bought a group  insurance policy.  In the later case, the ERISA plan is subject to the Florida court rules.  In the former it is bullet proof and it must be fully paid back.

Under Florida rules, if there is no ERISA qualified plan. a company claiming subrogation rights is NOT entitled to a lien against any money paid by UM carriers.  It also has to pay a pro-rata cost of collecting the liability settlement.  If the client pays me a 1/3rd contingency fee, then the insurance company has to give them a 1/3rd discount on the subrogation claim against the liability settlement. There is another loophole.  If the subrogation documents do not waive the Florida “made whole doctrine” then you do not have to pay anything back to the insurance company for subrogation.

This whole area of subrogation, reimbursement and ERISA is a field of land mines with lots of booby traps and potential legal problems.  Don’t try to navigate it on your own. Get a lawyer who knows what to do to protect your rights.

 

 

Don’t talk yourself out of a Settlement by Blabbing about it on Facebook

 

 

 

A claim is often “settled” by the exchange of money for a release. The terms of the settlement are often put in writing and are sometimes supposed to be kept secret. If the secret is not kept what happens next?

In Gulliver Schools, Inc vs Snay,  Mr. Snay agreed to keep his $80,000 settlement against the School secret. A few days later his daughter went onto her Facebook account and blabbed:

Mama and Papa Snay won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT.”

Mr. Snay’s daughter had 1200 followers. Word of her facebook post quickly got back to the School. The School called their attorneys. The School then refused to pay his $80,000 settlement because he failed to keep it a secret. Mr. Snay’s excuse was that he had to tell his daughter how his claim turned out. That was no excuse said the court. There was nothing in the plain and simple settlement agreement allowing him to tell her anything.

Mr. Snay should have been more careful in drawing up the terms of his settlement. If it was so important that he had to be able to share the secret with his daughter, then the Settlement agreement should have permitted him to do so. He should also have made sure his daughter knew the dire consequences of blabbing about her dad’s good fortune on her facebook page.

Settlement agreements are contracts which can be enforced in a court of law. In this case Mr. Snay breached his agreement. The breach relieved the School of having to pay him any settlement.

The takeaway is that breaking a contract has consequences. This family has learned that the hard way. So, before you settle you case make sure you know all of the consequences of your settlement!

A Chinese Proverb may help you avoid disaster

Which is worse? Being a liar or having a bad memory? Sometimes they blur…Better not being forced into the position of trying to prove you have a bad memory rather than a liar.

No one has a perfect memory. But when it comes time sue you are about to enter a danger zone of land mines and booby traps, snares, bear traps, trip wires and snake pits. If you have ever been hurt before, you better know about it or else…you will look like a Liar…and no one likes liars.

There is a Chinese proverb: the faintest ink is stronger than the strongest memory. “I don’t remember” does not stand a chance against a medical record showing a previous injury from your past. Records are sometimes kept for a long, long time.

In litigation the Defense of a bodily injury case will always get and scour all your medical records for anything that looks, smells, or sounds like a previous injury to the same body part. They will then defend by saying the earlier accident is the true cause, not the most recent accident, and the icing on the cake for the defense is when you “forget” about the old accident. Medical records have a funny way of turning up other doctors, other hospitals, other illnesses, injuries and conditions which we have forgotten all about. Your right of privacy is gone and you stand exposed, naked to your past without a shred of decency left. You will have to give your lawyer a detailed breakdown of every kind of doctor you have seen for the last 10 years, and he will ask you what they saw you for. He should scour those records for you and be looking for similar injuries. If you or you lawyer fail at getting and scouring your records it will plant a poisonous seed which will blossom at exactly the worst possible time: during trial.

I was recently in trial for a nice lady who claimed severe foot and ankle injuries as a result of a slip and fall at a nice restaurant in 2008. She had almost $250,000 in doctors bills. I had invested a lot of time and money in her case. I had taken over from 3 earlier attorneys. I believed her. She had RSD/CRPS in her ankle which is the worst kind of pain known to mankind. In her deposition in 2010 (years before I got her case) she was asked if she ever injured her foot or ankle before? Her answer was: “No.” The Defense was laying a trap.

Fast forward to 2013. She is in trial on the witness stand in front of a Jury. She is claiming severe foot and ankle injuries and RSD due to the slip and fall in 2008. On cross examination she is again asked about previous foot and ankle injuries. She still says “None.”

The trap was set. She was caught. She was embarrassed in front of the jury. It turns out that 20 years ago she was seen in an ER for an ankle injury. She got ankle x-rays done. She said she forgot all about it. Was she lying to cover it up or did she really have a bad memory? During her deposition she had forgotten all about it, and her lawyer did not know about the 1993 ankle injury and failed to warn her about remote accidents. A better answer would have been “I don’t remember.” The Defense attorney whipped out her 1993 ER record showing she was in the ER with ankle and foot injuries in the exact same spot she claimed was hurt in the slip and fall in 2008. He gave it to the Jury. Her case was over. The jury thought she was a liar and they quickly dumped her case into the toilet.

Stuff happens at trial. Sometimes the bad guy wins. Sometimes the claim should not be
made at all. Better have a lawyer who knows how to prepare your case for settlement and if necessary, for deposition and trial. Better to be prepared for the storm that is coming than hope it will remain a secret. Ignorance is not bliss.

Passenger Claims in Single Vehicle Accidents

 

The recent tragic death of Paul Walker when he was a passenger in a $440,000, 604 hp, V-10 Porsche CGT has saddened his fans.  The driver somehow lost control of the high powered car and it crashed.  The car is crazy fast, and even one of Proche’s own test drivers, Walter Rohrl,  has said the car is the only one that scares him when he drives it.  This was a single vehicle case, meaning it was not a drag race, and no other car was involved in the accident.

Passengers have the right to a driver who can control the vehicle and  use at least ordinary care while driving no matter what kind of car, truck or motorcycle they are on.  Gettng behind the controls of a high velocity motorcycle or car implies the driver knows how to drive it.   I have handled many cases involving single vehicle accidents which have killed or injured passengers.  Most are single vehicle roll overs at high speed on the interstate.  Sometimes the passenger is lucky enough to walk away without significant injuries.  Sometimes they are killed if they are not wearing a seatbelt and get ejected.

Most insurance policies exclude (don’t cover) the liability of the driver to the passenger for the driver’s negligence if the passenger is related as a family member  to the driver.  However, friends who are riding around with a negligent driver are covered if the negligent driver caused them to get hurt by running a light, failing to stop at a stop sign, or violating other traffic laws.

Passengers who are seriously injured need to decide whether their need for compensation outweighs the personal relationship between them and the driver. The personal relationship will definitely take a hit if the passenger makes a claim against the driver’s insurance company.  Even though the insurance company for the driver will ultimately have to pay the claim, the driver will likely get offended by  the claim.  Nothing like a threat of a lawsuit to ruin a good relationship! If the driver is uninsured or underinsured the passenger may fall back on the passenger’s own uninsured coverage.

Passengers have  no legal duty to control the driver.  We hear of backseat drivers.  The law does not require  passengers  to make the driver slow down or drive more carefully.  However, if the passenger gets into the car knowing the driver is incompetent because he is drunk or high on illegal drugs that is a defense.  Under those circumstances the passenger should get another ride.

My suggestion: if you are a passenger who has been seriously injured in a single vehicle car accident it is a good idea to get legal advice from a skilled attorney.  Also, don’t let someone who you know is drunk drive.  This time of year especially is a  good time to be the designated driver.

 

Fixing Mistakes in Your Own Medical Records

I should have known better!

 

Guess what?  It is almost impossible to fix a mistake in our own medical records!

Why? For one reason you rarely see them.  So how are you going to know if they are wrong?  Records come up for  review when you have an accident injury.  Or on your next doctor’s appointment. After and accident your lawyer gets the records, and then should review them before your deposition is taken to make sure you know what is in them.

Second: if you tell the doctor he made a mistake, he will immediately think you are trying to game him so you can get more money from your accident case.

Third: if your lawyer asks him to fix it, then your doctor thinks your lawyer is trying to game him.

Betty was in a head on collision.  An old fart turned in front of Betty. The impact was violent.  She was thrown head first into the windshield and had significant head and dental injuries.  She wound up with bilateral TMJ, which is a severe jaw injury making it hard to eat.  She spent almost $50,000 for surgery with her dentist.  I looked at her records and  said,” Betty, I thought you told me you hit the right side of your face against the windshield. Why do your dental records say you hit the left side?”  Betty shook her head, and said she would tell her dentist and get it fixed.

Two weeks later I got her new dental record.  It made it worse. The dentist had made a new entry. “Betty has now hired a lawyer.  Now she says she hit the Right side of her face on the windshield. Before she said it was the left side.” Now the entry clearly looks like I am trying to get Betty to help orchestrate a fraud on the dentist and through his records a fraud on the jury.

The insurance company took one look at that new entry and could hardly wait to show it to our jury.  We had to settle for less.

More common are the errors when doctors say you came in with complaints of no pain, or only left sided pain.  In fact you had pain on the right side.  Try to get the doctor to fix that and it will make you look lousy.  Or the ER  record after an accident.  The one that says you came in with the smell of alcohol on your breath!  Of course it does: you went home and had a couple of hi balls to help with the pain and headaches.  They got worse and then you went to the Emergency Room.  The nurse left out the part about you going home  so it makes you look like you were drunk when the wreck happened!

Lesson to be learned:  You are playing with gasoline and matches if you try to fix medical records.  Be careful or you will get burned!  Better get an experienced trial attorney who can avoid traps than someone who runs a mill.