Sunday, January 26, 2014

How Should We Fight Off The Ambulance Chasers?

It's an ever recurring scenario after you've been involved in an auto collision. As Radar in the hit series M*A*S*H* used to yell: "INCOMING!" Within a few days, here come the solicitation letters, DVD's, glossy brochures, "books" delivered to your door. And now texts from so called "injury help centers," which are buffer groups that are trying to funnel injury victims to certain medical providers and attorneys.

If you search this blog you'll see that I have railed against these practices as the worst thing to happen to our profession ever. It has been our ill fated version of "Pickett's Charge," and it has been slaughtering and maiming the already fragile reputation of personal injury attorneys for years.

Until recently, it appeared that texting accident victims was the next shiny object for the solicitation crowd in a race to the bottom to sign up clients. But now it appears there is a new twist: Some firms are now contacting accident victims who've already hired another attorney or firm to represent them!

What I suspect is happening is these firms are offering to represent the client for a lower contingent fee in an attempt to lure the client to them and away from their original attorney.

The response of personal injury attorneys who engage in none of this crap has been predictable. "Client stealing" is one of the more G rated accusations some of my colleagues have thrown out. I don't disagree. But I have a different take, and a few rules for anyone who might consider hiring us for their personal injury case:

1. If you hire us, you're free to leave and discharge us at any time. More than the terms of the contract, the attorney-client relationship is one of feel. It is one of trust and having a comfort level with your attorney. If it doesn't feel right or like a good fit, then maybe it isn't.

2. If you hire us and then receive calls from other law firms, we would expect the courtesy of a phone call to us, discussing what you were told and by whom.

3. If you hire us, only to jump to another firm days or weeks later for a lower rate, I wish you all the best with your new best buds. If you are that fickle and willing to get rid of us at the drop of a hat AND violate Rule No 2., we were probably not meant for each other anyway.

We've been handling personal injury cases for 25 years now. We don't solicit anyone to be their lawyers and never will. 90% of our business is word of mouth (and we know this because we keep track). We don't have a revolving door at our entrance. We have no fancy jingles and slick phone numbers.

Somehow, our phone still manages to ring anyway....


Wednesday, January 22, 2014

"I Was Not Wearing My Seat Belt At The Time Of The Crash--Can They Use That Against Me In My Personal Injury Claim?"

"Were you wearing your seat belt at the time of the crash?" If you are involved in an auto collision, it's a question you'll most likely be asked by the the investigating police officer, the insurance adjuster, and even your attorney.

But how does it affect your injury claim in Ohio, if at all? The answer: it depends. Ohio law is a bit quirky on this issue. We have a "seat belt" law in Ohio, but as it pertains to an auto injury claim, it is admittedly narrow:
No person shall… occupy, as a passenger, a seating position on the front seat of an automobile being operated on any street or highway unless that person is wearing all of the available elements of a properly adjusted occupant restraining device. 
Translation: Ohio law creates a duty to wear a seat belt only for passengers in the front seat of the car. Therefore, if you were an unbelted passenger in the back seat and injured in a crash, evidence of your non-use of the seat belt would be inadmissible in any claim or lawsuit you bring for your injuries. The insurance company would not be able to argue that your injuries were caused or made worse by your failure to wear a seat belt.

But what if you were an unbelted driver or front seat passenger and injured in a crash? Again, Ohio law is fairly narrow on this issue and limits what an insurance company can argue against you even if you were not wearing a seat belt. First, it cannot argue that your failure to wear a seat belt means that you were negligent. Why is this important? An overly simplistic example will illustrate the point.

Suppose you have an injury claim worth $100,000 as determined by your jury. However, they also find that you were 50% negligent in causing your own injuries. Therefore, your $100,000 damage claim is reduced by 50%, and you are left with a verdict of $50,000. In our example above, the insurance company could not argue your non- seat belt usage was negligent, in an attempt to reduce your damages.

However, it can argue that not wearing your seat belt can diminish your pain and suffering damages if not wearing a seat belt contributed to the injuries you sustained in the crash. Example: you were driving and were rear ended and smashed your head into the windshield and lost 6 teeth as a result. It is possible that you wouldn't have injured your head or lost your teeth if you were wearing your seat belt.

But here's where things get a bit more complicated: it is the insurance company's burden to prove that you would not have sustained those very same injuries if you had been wearing your seat belt. This is often difficult if not impossible to prove. A person can be wearing a seat belt and still sustain brain, head, neck, shoulder, spine, lower trunk/limb, and a whole host of other injuries due to the nature of the crash. This is particularly true in high speed crashes, intersection collisions, and other off angle crashes

In fact, studies from numerous federal government agencies, and even data from the insurance industry, show that in side impact crashes, occupants are 2-3 times more likely to sustain head, neck, and spine injuries for a simple reason: a standard 3 point harness seat belt is not nearly as effective in protecting occupants from side impacts. It is for that reason that many cars now contain side impact airbags!

So here's the bottom line: it is the insurance company's burden to show that the specific injuries you sustained would have been less or non-existent if you'd been wearing your seat belt. And in the overwhelming majority of crashes, occupants will sustain injury even if wearing a seat belt.

Does that mean you should not wear one? Hell no! In many situations, seat belts may not prevent injury, but they may save your life. One thing is for certain: if you're ejected from your vehicle, the chances of you not surviving increase astronomically. And a seat belt is your best bet to keep that from happening.

Thursday, January 16, 2014

Little League Helmet Toss Lawsuit Will Strikeout!

If you fertilize your lawn correctly, you'll have a nice lawn with virtually no weeds. But occasionally a few will pop up despite your best efforts and hard work.

And so it is with the latest example of the occasional, goofball lawsuit that rears its ugly head like that patch of crabgrass on your lawn. This time, a little league coach in California is actually suing a 14 year old kid he coached for over half a million because the kid threw his helmet in celebration after a game and struck the coach in the back of his leg, shattering his achilles tendon.

Bad injury, no doubt. But this lawsuit is a major strikeout for a number of reasons and will eventually be thrown out at 2nd base or hopefully sooner. There are plenty of "legal arguments" for tossing this suit. First, there may be an argument that the coach assumed the risk of injury. Second, he's suing a 14 year old kid, and the standards for holding a minor liable for injury are more stringent than if he were an adult, at least in Ohio where I practice.

Legalities aside, this case screams out as being a loser for a number of practical reasons. Even if it goes to a trial (which I predict it won't), the overwhelming sympathies lie with this poor kid. It's generally not a good idea for a coach to sue a kid-player on his own team.  Second, as an aside, the coach is a chiropractor, and all the negative publicity he is getting is bound to be awful for his business.

In fact, I can think of nothing good that will come out of this lawsuit---unless you're The Chamber Of Commerce and its militant wing, "The Institute For Legal Reform." This group is famous for scouring the legal universe to find a handful of zany lawsuits like this, only to prop it up with its PR machine, and declare that our legal system is broken and in need of "reforms"--that coincidentally favor big business and insurance companies even when  legitimately injured folks bring meritorious lawsuits.

We who investigate and pursue personal injury lawsuits can do nothing about these outlier lawsuits. And we can't stop The Institute For Legal Reform's massive PR machine. But we can speak out against crap like this, and let people know that these lawsuits are truly like the unsightly weed on your manicured lawn.

The solution is to get rid of the weeds, not the lawn.....


Thursday, January 2, 2014

Passing Out At The Wheel Due To A Medical Condition--When Are You Liable?

Infrequently, a driver afflicted with a medical condition will lose control of the car and cause a collision. 

What is MORE common is the driver's insurance company claiming that the driver is not liable to pay the injured driver's damages in a personal injury claim/lawsuit because of a "sudden medical emergency."

For example, if a diabetic has a hypoglycemic (low blood sugar) episode and causes a crash, his insurance company may well deny being liable for the injuries he causes due to a "sudden medical emergency." Other classic examples of this accountability avoiding insurance tactic include drivers with epilepsy or heart ailments who become incapacitated due to those conditions while driving. 

This is almost always a bogus defense, for a number of reasons. First, the definition of a "sudden medical emergency" under Ohio law is where the driver "is suddenly stricken by a period of unconsciousness which he has no reason to anticipate and which renders it impossible for him to control the car he is driving." 

In other words, the "sudden medical emergency" must have been unforeseeable. Problem: most medical emergencies are quite foreseeable, even if not predictable as to exactly when they will occur.

Take the diabetic , for example. Most folks with this unfortunate condition must frequently manage their glucose levels. Because they can often fluctuate, even with careful management, their blood sugars can often rise or fall to dangerous levels, and cause impaired or lost consciousness or even seizure activity. Their insulin pump readings (which can store average glucose readings for months will often show dangerous fluctuations in glucose levels.  What's more, their medical records (from their internist or endocrinologist) may have documented previous incidents of problems, such as emergency trips to the hospital to re-regulate their glucose levels, and other evidence of lapses of consciousness.

Very rarely is unconsciousness due to a diabetic event ever considered an "unforeseeable" or "unanticipated" event.

What would be a potentially good example of a truly unforeseeable sudden medical emergency? A driver with no history at all of any heart problems or history who has a heart attack at the wheel, passes out at the wheel, and injures another motorist. That's about as rare as a politician at a truth convention...

Absent something like that, drivers (and their insurance companies) are not excused from  liability for injuries caused while under a medical condition. In my 25 years of personal injury practice, I have yet to see this defense work. Whenever it has been raised, it has usually died on the vine after a subpoena for the driver's physicians' medical records, which will often show the paper trail of problems that preceded the crash.