Thursday, May 27, 2010

The Friday Big Picture....

Somehow I was placed on the U.S. Chamber Of Commerce's e-mail list. As some people know, the Chamber hates "trial lawyers" and has spent billions lobbying against any lawsuits filed by injured or ripped off individuals against businesses and corporations. In fact, their mantra on their website is "Jobs, Not Lawsuits." Recently they sent me a link to a poll where readers can vote on the "most ridiculous lawsuits." May's entry was: "Handyman leans ladder against tree branch he’s sawing off, sues employer after resulting injury" (read on to find out more about this doozy of a lawsuit...)

Who is in favor of "frivolous lawsuits?" Nobody, including me. But why does the Chamber lobby so heavily for limits or restrictions on legitimate lawsuits? For example, they are in favor of "caps" or limits on what you can recover if you're sentenced to a wheelchair or a family member is killed due to corporate wrongdoing, preventable medical errors, and a whole host of other shenanigans. Their position on lawsuits can be boiled down to two truths: Your lawsuit as an individual against any corporation? Bad, and we need limits on your recovery. Any corporation suing you or another business for whatever reason? No limits.

Here's the flaw with the Chamber's monolithic stance on lawsuits: every so often, current events shine a spotlight on the hypocrisy of an organization like the Chamber's talking or lobbying points.So let's review what's happened within the last few weeks and see it squares with the Chamber's position:

1. Upper Big Branch mine explosion Twenty nine miners killed or missing and 57 infractions just 1 month before the explosion, including one for failing to develop an adequate ventilation plan;

2. BP Oil Well Explosion--11 workers killed, and thousands of jobs lost in marine and fishing industries too numerous to mention, including the destruction of the Gulf Coast ecosystem for years to come;

3. A New York Hospital that failed to read over 4,000 echocardiograms (heart disease tests) ordered by doctors because nobody bothered to flag the tests for review;

4. A Georgia hospital failed to read over 900 mammograms due to an employee's "failure" to make sure they were read;

5. A Maryland doctor is under federal investigation for allegdly performing over 300 unnecessary cardiac stent procedures.

Goofball lawsuit? Meet mass, horrific, preventable tragedies, inepteitude, and greed. Funny, I searched all over The Chamber's website but could find no mention of any of these recent jaw dropping examples of institutional negligence/recklessness, much less any support for limiting the liability of BP, for example, for its corporate wrongdoing.

Nah--it's too fun and too easy to rail on "Handyman leans ladder against tree branch he’s sawing off, sues employer after resulting injury ." By the way, you can vote for this as the "most ridiculous lawsuit" of the month.

One final note. The "handyman" lawsuit? It was filed in GREAT BRITAIN! Do we need any more proof of how disengenuous the StarChamber is when it comes to this issue?

Monday, May 24, 2010

Should You Use Your Own Auto Insurance Company To Fix Or Total Your Car After An Accident?

Short answer: YES! Here are common misconceptions that I hear all too often from my clients shortly after an accident:

1. "My agent told me to go through the responsible party's insurance company first."

WRONG! If you have collison insurance with your own company, your insurance contract absolutely obligates your company to timely repair or total your car. Your policy, and Ohio law, does NOT obligate you to run the gauntlet of the at fault party's insurance company and their delay and low ball offers. All too often, crash victims in need of an estimate, a rental car, or an offer on their totalled car wait for days for the at fault party's insurance company to take care of the damage/loss. You can short circuit the dalay by insisting that your company immediately take care of your car.

2. "My agent said that my rates might go up if my company pays for my car damages."

WRONG again! Buried in your insurance policy is a "subrogation" clause. This means that if your insurance company pays a penny for your car damages, it will "subrogate" or obtain full reimbursement from the at fault party's insurance company.

3. "But I have a $1,000 deductible. My agent told me that they will have to subtract my deductible from any offer my insurance company makes on my car."

CORRECT....but only half true. The at fault party's insurance company will reimburse you for your $1,000 deductible shortly after the collision, and most body shops will work with you and simply wait for you to turn over the $1,000 when you receive it.

4. "I have rental coverage through my own company but my agent told me to first go through the at fault party's for a rental."

WRONG...and totally improper if you have purchased rental coverage with your insurance company. You pay a separate premuim for rental coverage, and the whole point of having it is to be entitled to immediate access to a rental car shortly after a collison, when you need it the most. Many of my clients report that the at fault party's company is too slow to offer a rental car. Worse yet, many companies tell accident victims: "go pay for a rental and we'll reimburse you later for reasonable rental charges," whatever that means. And many crash victims don't have the cash to plunk down on a rental car.

When you go through your insurance company, almost all of them will pay the rental agency directly.

These roadblocks are nothing more than your company's attempt to not have to get involved/pay anything by throwing everything back on the at fault party's insurance company. In a perfect world, the at fault party's company will step in and fairly take care of everything with no delay. All too often, however, this is not the case.

So you need to do two things to protect yourself. Get your insurance company involved immediately in your car's repair or replacement. Don't take no for an answer. And if you start to hear some or all of these excuses from your own company, it's time to drop your company and find a new one--and an agent who will work WITH you, and not against you.

Tuesday, May 18, 2010

An Insurance Secret That Personal Injury And Insurance Attorneys Know...

Personal injury attorneys who represent auto accident victims routinely square off against attorneys hired by insurance companies to defend the at fault motorist in a lawsuit. Here's a secret that both we personal injury and insurance company attorneys know: we all carry high amounts of Uninsured/Underinsured Motorists' coverage. Ask any one of these attorneys what kind of coverage they carry, and the typical amount will be around $500,000--minimum.

There is a simple reason for this: all of us see case after case where (1) accidents victims were seriously injured, and the at fault motorists had (2) no liability insurance, or (3) minimum or low amounts of liability coverage, meaning that there was not enough coverage to compensate injured victims for all their losses. And all too often, auto accident victims did not have enough uninsured/underinsured motorist (known as UM/UIM) coverage with their own insurance comapny to protect them from irresponsible drivers with little to no liability insurance. If you have high levels of UM/UIM coverage, you could make a claim against your own insurance policy for the difference bewteen what your claim is worth, and the at fault driver's insurance.

EXAMPLE: You are seriously injured in a crash and your claim is worth $300,000. The at fault driver had Ohio state minimum limits of $12,500. If you had $500,000 in UM?/UIM coverage, you could collect $12,500 from the at fault party's insurance and $287,500 from your own insurance company under your UM/UIM coverage.

Now you know why we carry high levels of of UM/UIM coverage.

Here's another secret: we know that it is cheap to purchase high amounts of this coverage. Typically you can increase your UM/UIM coverage from $100,000 to $500,000 for around $150.00 per year ballpark, and maybe even less than that.

In my book, Fully Exposed: How Auto Insurance Companies Are Stripping Your Auto Policy, I explain the importance of this coverage, how you can intelligently purchase it, and all the RIGHT questions to ask your agent or companny.

It's free to all Ohioans. Just click on the book cover and fill out the contact information.

Monday, May 17, 2010

Trucking Company Tries To Avoid Responsibility For Loading Dock Injury


Facts: an out of state truck driver fails to set the brakes at a loading dock, injuring a forklift driver. A lawsuit is filed, and it is discovered that the truck driver took pictures of the resting position of the truck and forklift and turned the photos over to his employer’s company safety director. The safety director’s deposition is taken, and he denies the existence of any photographs, raising the issue of whether important evidence was destroyed.

Every truck driver is given an “Accident Kit” by his company. Usually included in this kit is a disposable camera, some instructions for the driver (including instructions to “Never admit fault to anybody”), and, in this particular case, an “Exoneration Card.” This card basically said that the truck driver was relieved of any responsibility for the crash! Worse yet, the truck drivers were instructed to try to get accident victims to sign these cards!

This made me wonder: Shouldn’t the “Accident Kit” have an “Acceptance of Responsibility” card in the event the truck driver was clearly at fault? So I asked the Safety Director about this at his deposition:

Q. Does the accident packet have a card that says, "Acceptance Of Responsibility," if the driver truly committed a driving mistake, for instance, if he rear-ended somebody?
A. No.
Q. All right. I didn't think so. Thought I'd ask anyway, though.
A. Well, he's told not to say nothing, so he wouldn't answer it anyhow.
Q. Even if he's at fault he's told not to say anything?
A. Absolutely.
Q. Why?
A. If they want a third party narrative from an officer, then he tells him what the sequence of events. We tell the drivers it's left to somebody else to determine fault, usually in a court of law.
Q. Well, what if a driver's clearly at fault, clearly rear ended somebody, I wasn't paying attention?
A. What's clearly at fault?
Q. You don't know what that is?
A. No. If you're driving through an intersection and a light is green, and somebody hits you, who's at fault, the guy that ran the red light or the guy that ran the green light?
Q. Let me give you a hypothetical.
A. Okay.
Q. Truck driver's trying to make a cell phone call, not paying attention and he rear ends somebody clearly at a stop sign.
(Trucking Company Attorney) I'm going to object to the hypothetical.
Q. Do you instruct your drivers under all circumstances, "Don't admit you're at fault even in a situation like that, just don't do it?"
A. I've got nothing further to say about it.
Q. Yes or no?
A. I've got no opinion.

See how it works after a crash? Never admit fault, but always try to get the injured person to admit responsibility. So much for “personal responsibility” or doing the right thing; apparently that only applies to the injured person, and not to corporations or their insurance companies...

After we filed a motion to include a count for punitive damages due to possible destruction of evidence, the trucking company admitted liability at a court ordered mediation, and the case settled for a confidential sum.

Tuesday, May 11, 2010

Robotic Surgery Safety--Are Patients Part Of A "Learning Curve?"

Robotic or robot assisted surgery appears to be the latest surgical craze. Hospitals are purchasing these robots (known as the "de Vinci") to assist in heart, prostate, and gynecological surgeries, just to name a few. They are also spending lots of money marketing robotic surgery in billboards, TV, newspaper, and radio ads as a new breakthrough in "minimally invasive" surgery. However, a recent Wall Street Journal (WSJ) article has questioned whether certain hospitals and surgeons are qualified to offer robotic surgery as a safe alternative to traditional surgery.

The reason: there is a steep learning curve for the operator/surgeon to become proficient or experienced with the robot. Some surgeons quoted in the article indicated that it takes anywhere from 200-700 surgeries to become experienced enough to avoid certain surgical complications due to tecnical or operator error. And some smaller hospitals don't do nearly enough surgeries per year to allow surgeons to gain the necessary experience.

Here's the problem, according to the WSJ: many smaller hospitals have invested an initial $1.4 million in the machine, and may need to have 500 surgeries per year to make money on their investment. This raises an obvious question: is robotic surgery being "pushed" on patients in order to justify the use (and cost) of the machine?

Another potential problem is that there are no real standards as to when a surgeon is deemed qualified to safely operate the robot. Surgeons interested in robotic surgery are typically sent to a two day seminar where they operate on pigs and cadavers. Hospitals are free to set their own additional standards regarding operating under supervision (known as "proctoring"), but they are often minimal.

The article is worth a read because it highlights numerous misadventures/injuries with robotic surgeries, and hints that surgeon inexperience was the primary cause of patient injury. This issue sounds eerily similar to what happened when laparoscopic gallbladder (known as laparoscopic cholycystectomy or "lap chole") surgery was introduced in the late 1980's as the newest revolutionary breakthrough. Similarly, surgeons were sent to two or three day seminars and practiced on pig bladders, were supervised for a limited number of surgeries, and were deemed "proficient" in laparoscopic surgery.

The results were initiallly disasterous. The incidence of common bile duct injuries (a devastating injury to the main bile duct that is NOT supposed to be cut during gall bladder removal) increased dramatically versus the old fashioned "open" method of gall bladder removal. Numerous medical journals reporting these findings noted that the increase in common bile duct injuries was due to a "learning curve" caused by inexperienced surgeons as hospitals rushed to promote a new and better method of gall bladder removal. From personal experience, I investigated and litigated numerous Ohio laparscopic gall bladder malpractice cases where the patient's common bile duct was cut/severed, including a jury trial where the jury concluded that malpractice occurred and that the injury was preventable.

With the similar history of laparoscopic surgery in mind, patients inquiring about robotic surgery should ask the following questions of their hospital and surgeons:

1. How long has robotic surgery been in place at your hospital?
2. How many operations have been performed robotically at your hospital since this technology was introduced?
3. What are the surgeon's qualifications for performing robotic surgery?
4. What do your qualifications consist of?
5. How many robotic surgeries did you assist in?
6. How many have you performed on your own?
7. What specific complications have you encountered?
8. What is complication rate for your proposed surgery over and above the complication rate for traditional surgery?
9. Has the hospital published or kept track of the complication rate for robotic surgery and are those results available for review?
10. What are the latest leading studies, medical journal articles, papers, or abstracts regarding the safety or complication rates for your proposed surgery (and ask for a copy of the article or study)

If you don't receive any real answers to these basic questions, consider taking a pass on the de Vinci. Medical technology can be a wonderful thing. Indeed, laparoscopic bile duct injuries in lap gall bladder surgery have now essentially decreased very close to the level of injuries seen with traditional gall bladder surgery. But the lack of real testing and data with any new technology or surgery can put thousands of patients at risk for years until more is known about complication rates. Bottom line: you as a patient should not be an unknowing or unwilling guinea pig in any hospital's or surgeon's "learning curve."

Monday, May 3, 2010

I Have An Injury Claim And I'm Getting Divorced--How Much Is My Spouse Entitled To?

Occasionally we have guest bloggers write on topics of interest that cross over into Ohio personal injury issues. Our guest blogger is Robert L. Mues, an outstanding Dayton, Ohio family law attorney. I found his interesting and informative blog and website while searching the Net for...interesting and informative blogs and websites! His blog is a must read for folks dealing with the weighty issues of divorce, custody, and other related legal matters. One issue that intersects our legal worlds is how Ohio personal injury claims or proceeds are divided in domestic relations court. Take it away, Robert...

How Injury Settlements are Treated by Ohio Divorce Courts

Factual Scenario:

A year ago you were involved in a rear-end car accident which was not your fault. You were the only occupant in the car. You were taken to the hospital from the accident scene and given some pain medication and told to contact your family doctor. The next day, you couldn’t believe your back and neck pain! The pain continued and your wife correctly suggested that you hire an attorney to represent both of you in dealing with the insurance company. As a result of the accident, you missed a week of work at ABC Machine Shop, where you work as a tool maker being paid $17 per hour. Fortunately, all your medical expenses were covered under your health insurance plan except for $100 in co-pays.

In addition, for about a month or so you were not able to cut the lawn, take out the trash and do other chores you usually did. Your wife had to pick up the slack. Your interest in being intimate with your wife also suffered. All of this started causing arguments between the two of you. You generally just went to work and would come home and go to bed early. Your wife started staying out late after work and “going out with the girls”. After much discussion and investigation, you learned she had become involved with a male friend. The two of you decided 7 months after the accident to separate and, unfortunately, to end your marriage and get a divorce.
You both hire separate divorce lawyers. In the midst of the divorce, your lawyer on your accident case calls you to tell you that after long and hard negotiations there is a “fair” offer on the table for you and your wife. That is great news you think, since you could use the money to help get back on your feet.

But your accident lawyer tells you that your wife will need to sign both the insurance check and release document. Now you realize that you might have a problem. So you decide to call your divorce attorney and tell her the situation and ask if keeping all the money would be a problem. She says that this is a new issue and that it will “need to be worked out” with your wife’s attorney. “Worked out?” What is there to work out, you think, since it was you that was injured and not your wife? Here is what you are likely to learn from your divorce lawyer about how personal injury claims are typically treated in Ohio Courts.


The general rule is that if the settlement is to compensate for injuries, pain and suffering, loss of enjoyment, or medical bills that do not have any impact on the marital estate, the settlement is separate property and should be fully awarded to the injured person. Realizing this to be the law, your divorce attorneys will try to get you all or as much of the proceeds as possible.

If the two lawyers are not able to negotiate an agreement, the divorce court would need to determine what part of the proceeds are “martial” and subject to equitable division and what portion is “separate property” and not divided. Separate property is defined to include “compensation to a spouse for the spouse's personal injury, except for loss of marital earnings and compensation for expenses paid from marital assets.” Thus, in order for the settlement to be considered separate property, a person must trace those funds, and those funds must represent something other than a loss of marital earnings or compensation for expenses paid from marital assets. A personal injury settlement is “marital property” divisible upon divorce, only to the extent that it reimburses injured spouse for lost earnings and medical expenses that have adverse impact on marital estate. In characterizing settlement proceeds, it is proper to consider whether injured spouse's medical expenses had, in fact, depleted the marital estate, or whether employer or insurer had picked up such expenses. It is also common that a portion of the settlement proceeds are intended to compensate the injured person’s spouse for the damage or impact to their marital relationship, which is referred to as a “loss of consortium” claim. Divorce Courts typically view that claim as the separate property of the spouse of the accident victim.

Ohio Courts have held that a personal injury settlement is marital property in the following situations: commingling assets by accepting entire settlement in one check made payable to both parties; compensation for lost wages; and medical bills that have an impact on the marital estate. In addition, when there is a lower settlement amount than what would have otherwise occurred due to low policy limits or a lack of funds from the responsible party, there is no abuse of discretion for the trial court to allocate a portion of the settlement to lost wages even when the settlement indicates that it is for personal injury only.

Many personal injury attorneys are successful in requesting the insurance adjustor to provide a letter breaking down the proceeds by category. That can be very helpful for the divorce lawyer. But if the adjuster will not provide that breakdown, then the Court will need to hear testimony about the injuries and review the demand package sent to the adjustor and apply the law.


So, what is my best estimate how a court might allocate the net proceeds in the above scenario if there is no letter from the insurance company setting forth their breakdown? Well, it would seem that the lost wage portion of approximately $680 would likely to be considered “marital” and she would get half of that amount. The medical bills did not impact the parties significantly. Technically, she should get perhaps $50 to reimburse her 1/2 of the co-pays. In my experience, loss of consortium claims typically make up only a small portion of the gross settlement unless the injuries are very significant. But this is a very “grey” area subject to the Court’s equitable discretion. Any amount allocated to her loss of consortium claim would be wife’s separate property. So, in my scenario, the lion’s share of the settlement proceeds will go to you to compensate you for your pain, suffering, and all that you had gone through as a result of the collision.

Robert L Mues is the managing partner of the Dayton law firm of Holzfaster, Cecil, McKnight & Mues. He has focused much his practice over the past 31 years in the family law arena handling divorce, custody and juvenile law matters throughout Southwest Ohio and in many Ohio Courts, including the Ohio Supreme Court. Mr. Mues has received the highest rating from the Martindale-Hubbell Peer Review for Ethical Standards and Legal Ability. He has been very active in supporting child welfare issues throughout his career as well as serving on various charitable non-profit boards. He loves to write and is very proud to be the publisher of the popular and informative Ohio Family Law Blog. To learn more about Mr. Mues and to be linked to the Ohio Family Law Blog, click here.
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