Wednesday, October 3, 2018



Under Ohio law, if you as a motorist have the right of way, you are the “preferred driver” in your lane of travel. The other driver is automatically at fault unless you were not driving “in a lawful manner” at the time of the crash. If you have the right of way and you were not speeding, you are driving in a “lawful manner” and the other driver is 100% at fault.

So far, so good.

However, if you were speeding, or were impaired, then you are no longer the “preferred” motorist with the right of way. It doesn’t necessarily mean you were at fault, but it allows the insurance company the opportunity to claim that you share some of the fault/blame, even if your “unlawful driving” (say, 5 MPH over the speed limit) wouldn’t have made a difference in avoiding the crash.

A few years ago, I handled a motorcycle crash claim for a motorcyclist who "laid it down" to avoid a crash with a van that had pulled out from a stop sign directly into his path/right of way. He came to me after dealing with the insurance company for the driver on his own. They told him he was partially at fault in the crash, and, not happy with that, he came to see me.  I wrote the adjuster a letter and accused them of nitpicking my client’s actions based on hindsight. Here was the adjuster’s response (misspellings included): 

“Your position states Farmers really has nothing to argue here other then the fact plaintiff (the motorcyclist) should have done something differently then he did. You stated plaintiff was not speeding. We can concede to 25% comparative negligence but our insured states she slammed on her brakes then plaintiff laid the cycle down. Our insured stated plaintiff had half or the very least a third of his lane open and not blocked by our insured vehicle.
Our insured's perspective is plaintiff was going at least 30 in a 25 MPH zone and her above average witness qualifications would be compelling to a jury since you mentioned your trial experience.”

Huh? Their argument, translated: the motorcyclist was 25% at fault even though the van pulled out directly in front of him, because he could have swerved (into oncoming traffic) and avoided her and was 5 MPH over the speed limit (for a whopping 25 MPH) based on the negligent driver’s estimate of speed as she was illegally pulling out in front of him….

BS? You bet it is. So why did they argue 25% rider negligence in this case? They simply plucked it out of thin air in an attempt to reduce what they wanted to pay on the claim by that amount. I refused to accept ANY percentage of fault on behalf of my client, ignored their “25% negligence” argument, rejected their offer, and filed a lawsuit. A new adjuster was assigned to the case, and we were able to resolve it favorably to the client.

But what if the insurance company was right about their 25% argument? A simple example shows how your contributory negligence can impact your injury claim:

You are injured in a motorcycle crash and take your case to a jury trial. A jury returns a verdict for you in the amount of $100,000, but determines that you were 25% negligent in contributing to the crash (with the driver who hit you being 75% negligent).

Your verdict is reduced to $75,000.

If a jury found you 50% at fault, your $100,000 verdict would be reduced to $50,000.

If a jury found you 51% at fault, you would recover zero.

See how that works? After your crash, the insurance company is looking to open a door to discover some…ANY…evidence of speed/panic/improper evasive maneuvers, etc they can use to pay less on your claim. Fair? Not really. It taps into some of the long-held prejudices and biases against motorcyclists on our roadways. Those attitudes are fading, but they are still prevalent, and I’m sure you’ve heard some of that from non-riders.

But now you at least know where they're coming from, and why they are looking to pin fault on riders any way they can.

Wednesday, August 15, 2018

Yet Another "Turning Left In Front Of A Motorcyclist" Crash.

It happened AGAIN. Another phone call to my office. "My husband was hit by a driver (this time by someone operating a piece of agricultural equipment) who turned in front of him." As is typical, the injuries were horrendous. Numerous fractures, surgeries, lousy hospital and rehab center food, immobility, physical therapy, lifestyle changes, arthritis--you name it.

It's an all to familiar story for me as a personal injury attorney. This is probably the 12th consecutive "left turn in front of the motorcyclist" case I've handled in the last couple years. As always, there are 2 common denominators: the driver of the offending vehicle "never saw the motorcyclist," and the injuries to the motorcyclist are always serious.

It has to be disconcerting to riders that someone can turn abruptly in front of them and not see or hear them. But it happens all of the time. Riders have asked me over the years: "How can this be avoided?" Many times, it can't be. Every single one of my clients were free from fault, and riding their motorcycle safely and legally when they were hit. You can't control other peoples' inattention and other idiocy, like texting and other distracted drivers.

But my best advice to riders, as someone who's handled so many motorcycle accident cases over the years, would be:

DON'T SPEED.  If you are not speeding, you do not lose your right of way under the law. Besides, speeding can (in some cases, but not all) reduce reaction time to avoid the crash.

WHEN APPROACHING AN INTERSECTION OR SIDE ROAD, PRESUME THE WORST: THAT EVERY DRIVER MAY SUDDENLY TURN IN FRONT OF YOU. In most cases, this may not help you at all. But it might in that one in a hundred scenario.
WEAR BRIGHT CLOTHING AND AS MUCH SAFETY GEAR AS POSSIBLE. Yellow may be loud and gaudy, but it just might make you more visible. A yellow helmet did not protect my 
client in a recent left turn crash, but, again, it might help in certain scenarios.

The real shame here is that the REAL focus should be on the car and truck drivers' actions and why they SHOULD but don't see you as a motorcyclist. You as a rider cannot control that. But you can control  some variables that just might decrease the chances of being involved in a crash, or increase the chance of avoiding a crash, however slight.


I'll make this simple: bad crash + hundreds of thousands of dollars in medical bills + bad driver has little or no liability insurance + you had little to no uninsured/underinsured motorists' coverage ='s you recover little to nothing or file bankruptcy. If you want more information on this equation, I wrote a book on the subject. Call and ask for it--it's FREE.   


Thursday, April 12, 2018



The sentiment is correct: we do NEED to look out for motorcycles when we’re driving. But if you ride one, before anyone should be looking out for you on the roadway, what are YOU doing to LOOK OUT FOR YOUR OWN INSURANCE PROTECTION in the event someone hits you?

After 30 years or representing motorcyclists in crashes, here is a rule that is as sound as the laws of gravity, Einstein’s E=MC2, and the laws of physics: Car hits motorcyclist =’s motorcyclist loses. Bad injuries and thousands if not hundreds of thousands in medical bills. I’ve seen more of my clients with more surgeries, plates and screws, wheelchairs, walkers, canes, therapy, etc than I care to imagine.

Many of them were negligently plowed by careless drivers with minimal or still low liability limits—say 25 or 50 or $100,000. That coverage is useless if your bills exceed $100,000—which they often do.

So what can you do about it? Simple—take the irresponsible/careless driver who may hit you, and their cheap liability policy—out of the equation. AT A MINIMUM, YOU NEED AT LEAST $250,000 OF UNINSURED/UNDERINSURED COVERAGE ON YOUR BIKE AND $500,000 AND MORE IF YOU CAN AFFORD IT!

This will cover you in the event someone with little or no insurance wipes you out. This coverage is relatively cheap---you may find you can add it for around $200 a year or less!

Look, you’re essentially riding naked with no protection against the laws of physics and 3,000 lb bullets being driven by texting drivers (and we’ve all seen them). So at least cover yourself with some REAL insurance protection if you ride.

I actually wrote a book about the ins and outs of how to buy insurance to protect you (and you’ll NEVER hear any of this stuff from your insurance agent). Call me for a free copy.

Tuesday, May 2, 2017

You Lost Your Job Due To A Car Crash Not Your Fault. Will The Insurance Company Cover Your Lost Wages?

Answer – perhaps, but there are some steps you need to take to help yourself.

Let's say you're a delivery driver for fast food chain and an irresponsible driver negligently crashes into your car and totals it. You're injured, and your Dr. orders you off work for a few weeks. You notify your boss of your inability to work, and they let you go because they're short on drivers and need to fill your position.

Will the negligent driver's insurance company cover your lost wages, and for how long? The answer to the first question is a rather simple one. Under Ohio law, you are entitled to lost wages for your time off work because of your collision related injuries. A simple off work order from your physician will suffice and will allow you to claim your lost wages for the time period that your doctor has ordered you off work.

But what about the time period after your doctor releases you to return to work, and you no longer have a job because your employer terminated your employment because of the inability to work due to the crash? This is where it gets dicey,

However, there is one HUGE thing you need to do as soon as your doctor releases you to return to the work field. If you can't get your old job back, it is essential that you make every reasonable effort to find substitute employment the minute your doctor releases you. More importantly, you need to document your efforts to find substitute employment.

If you fill out an online application for work, save and print the application. If you fill out an application at a prospective employer's place of business, obtain a copy of the application. If you call a local business inquiring over the phone about a job opportunity, document in writing the date and time of the call and the name of the person you spoke with.

If you do all these things, and eventually land substitute employment-- let's say six weeks after you were released, you will have proven to the insurance company that you made reasonable efforts to find substitute employment, and you've now made a good case for claiming lost wages over that period of time.

Conversely, if you make no effort for weeks or months to find substitute employment, you've given the insurance company an argument that you could've secured a job much sooner, and therefore have given them ammo to deny your lost wage claim between the time you lost your job and the time you eventually secured a new job.

Remember, it's the insurance company's job to pay as little as possible on your claim. This doesn't make them evil; rather, it simply part of their business model. Doing everything you can do to try to find substitute employment as soon as possible will prove to them that you are a responsible person who tried to mitigate your losses.

With a little bit of effort and legwork, they will be more inclined to pay your lost wages over a reasonable period of time after you lost your job through no fault of your own.

Monday, May 23, 2016

Which Is More Dangerous: Texting/Distracted Driving Or Drunk Driving?

According to Car And Driver Magazine, texting while driving is WAY more dangerous than drunk driving. Here's how Car And Driver set up the test:

Rigging a car with a red light to alert drivers when to brake, the magazine tested how long it takes to hit the brake when sober, when legally drunk at .08, when reading and e-mail, and when sending a text. The results are scary. Driving 70 miles per hour on a deserted air strip Car and Driver editor Eddie Alterman was slower and slower reacting and braking when e-mailing and texting.
The results:

  • Unimpaired: .54 seconds to brake
  • Legally drunk: add 4 feet
  • Reading e-mail: add 36 feet
  • Sending a text: add 70 feet

This may come as a surprise to some, but it makes sense from a perception/reaction standpoint. 

But it is not the SOLE reason why distracted driving is more dangerous than drunk driving.

The real reason why testing/fooling with your phone is more dangerous than drunk driving dawned on me the other day on one of those numbing drive home commutes. Every single day, I see drivers looking at their phones while driving. If I kept score during any given week, the count would  probably reach the hundreds.

This made me want to do some digging, so I called Mr. Google for help (what did we do before Google and why do our kids use their smartphones for everything BUT a Google search?--sorry for going off topic...).

 How many adults in The U.S. own smartphones? A Staggering 225 million.  Licensed drivers? 210 million. Number of drunk driving incidents last year? 121 million (how pathetic is that?)

From a sheer numbers standpoint, the number of drivers with smartphones significantly outweighs the numbers of drivers who choose to drink and drive. Can we infer from the data that the opportunity to access our phones while driving is significantly greater than the circumstances that lead to drunk driving?

I'm no statistician but I know what I see with my own eyes. And that is a public driving like a bunch of bobble heads, constantly looking up and down and glancing in stealth like fashion. I generally go to bed fairly early, but I can't remember the last time I saw someone driving impaired.   

Our technological advances have been staggering over the last decade, and the distracted driving phenomenon is one of the many byproducts. Until we develop the technology to disable the onslaught of information we receive while driving, distracted driving is going to continue to take a heavy toll on our collective safety.

In essence, we've become intoxicated by a new drug--our phones.

Tuesday, March 22, 2016

Car Accidents, Emergency Rooms, And "GOMER'S"--And The Importance Of Following Up With Your Doctor

By: Brian R. Wilson, Esq

Canton Ohio

You've probably never heard of the term "GOMER" unless you are in the medical profession. Actually, it is an acronym  (G.O.M.E.R.) used by ER doctors and staff it stands for "Get Out Of My Emergency Room."

Harsh? Perhaps. But if you've been in an auto accident, it's helpful to understand the mindset of emergency room medicine, and how it affects your injuries and future treatment.

Emergency rooms see just about every calamity known to society, and many are life and death or potentially serious. Gunshot wounds and trauma, or folks on the verge of strokes or heart attacks are just a few of a long laundry list of injuries or ailments ER personnel see on a frequent basis.

And, given our access to health care issues in this country, many people use the local ER as their primary care doctor as a means of receiving medical attention. What's more, the scourge of increasing drug dependency has led to the local ER becoming a target for those who seek a prescription to fuel their dependencies.

All this has led to ER rooms becoming increasingly crowded and frenetic.

Every day in the ER involves "triaging" or the prioritizing the treatment of patients based upon the seriousness or potential seriousness of  the injury or condition.  If you've ever waited in the ER for a few hours for that foot or knee sprain, you've probably been "triaged," meaning that your treatment was put on the back burner while others with potentially more serious conditions were seen ahead of you.

In the absence of obvious, serious trauma like head or spine injuries, fractures, or internal injuries many car accident victims become "GOMER's." They are frequently are worked up rather quickly to rule out serious injuries, and are sent on their way.

And in this "treat em and street em" mindset, many injuries and conditions are not given serious attention, or are outright missed altogether. A few recent examples from car accident cases we've handled illustrate the occasional incompleteness of ER care:

Case No 1: Client is involved in a high speed, serious, head on crash with a drunk driver. His complaints of pain in the sternum or "breastbone" and mid back pain are noted in the records. A chest X Ray is ordered, which confirms a fractured sternum, but no spine X Rays are ordered. He is treated and released with a "back sprain." Days later, due to unrelenting pain in the mid back, he follows up with a health care provider, who orders a spine X ray. Two compression fractures are found in his thoracic spine.

Case No 2: After a serious fall at a grocery store, client is taken to the local ER. He has serious swelling in his knee. An X Ray of the knee reveals no fracture, and the client is discharged with a "knee sprain." Days later, due to inability to walk or even bend the knee, an orthopaedic physician orders an MRI, which reveals a complete tear of his anterior cruciate ligament (ACL) and  a complete tear of his medial collateral ligament (MCL) requiring immediate surgery.

Your takeaway if you've been in a car collision and went to the ER? Don't assume your "discharge diagnosis" was correct, and follow up as soon as possible with your family physician or other specialist if you are having any continued problems or discomfort.

You're probably much less likely to be GOMER'ed in those settings.

Thursday, February 18, 2016

The One Thing You Must Insist Upon After Your Crash...Or Risk Ruining Your Credit

I've seen this scenario OVER AND OVER again from car accident clients who call me in complete frustration months after their crash.

Client--let's call her Jenny--is involved in crash not her fault.  Jenny visits the local hospital for treatment. She explains to the hospital intake person (you know, the poor soul who has to ask for your insurance information while you're spasming in pain, bleeding, or have that bone sticking out of your leg) that she has health insurance and provides "nice intake lady" with a copy of  her insurance card.

Frequently, one of two things eventually happen after her insurance information is given. Either Jenny is told "since this is an auto accident, we will be billing the at fault party's insurance," OR the hospital takes her information and simply refuses to bill jenny's health insurance.

And then months go by. The hospital bill is lingering. Nothing has been paid. The at fault insurance company who promised to "work with" Jenny tells her that "we have to wait until you finish treatment" or "we can't pay anything until we review your records" or "we'll just offer you one lump sum as a settlement and you can pay your hospital bills out of your settlement."

Now Jenny is getting hounded by bill collectors hired by the hospital--which usually prompts a call to me.

What is going on here and why is Jenny being turned over to collections when she has health insurance and there is other insurance galore to pay her bills???

When the hospital sniffs that this is an auto accident claim and someone other than the patient may be at fault, it simply refuses to bill the patient's health insurance. But why?

Two words: hospital greed.

It's real simple: health insurance may pay well less than 50% of the patient's hospital bill. For example, if your ER bill is $5,000, the hospital may receive $1000 or even less from the patient's health insurance company as payment in full.  This is because insurance companies negotiate these discounts with hospitals who agree to be in their insurance network.

Because insurance reimbursement rates are so low, some hospitals are telling patients that the hospital "could not bill health insurance because it was an auto accident," or  told the patient that their health insurance "did not cover auto accidents."

Both of these statements are deceptive. First, virtually every health insurance plan will cover auto accident related expenses. Second, hospitals CAN bill health insurance. They just don't WANT to.

Reality: if there is a better and more lucrative source for the hospital's payment (such as the at fault driver's insurance company), the patient's health insurance is often viewed like a Spam casserole in the buffet line, and ignored.

Now, in a perfect world, this would not be a problem if the at fault driver's insurance company stepped up to the plate and simply paid the bill. But they almost NEVER do that. See excuses listed above...

The mistake that car accident victims make when they go it alone is not insisting that the hospital bill their health insurance, or simply turning the bills directly over to their health insurance company for payment to the hospital.  Chances are, the health insurer will pay the bill if the patient insists upon it.

The takeaway? If the hospital bill has not been paid within a month or so, contact your health insurance company and insist that it pay the bill.

Otherwise, the bill will linger, and here's the irony: your credit rating may get dinged despite the fact that you have health insurance, all because your local hospital (who is in your health insurance network), wanted to step out of that network to be paid a few more bucks.  

It's no wonder people call me after getting sucked into this unnecessary vortex.

Tuesday, February 2, 2016

Why A Hospital Was Fined $86,000 For Leaving A Towel Inside A Patient's Abdomen

Here's the story. A patient was admitted to a California hospital to have his bladder and prostate removed.

After three months and 43 pounds shed, this poor soul was re-admitted and underwent a CT Scan, which showed a large mass. I'm sure he thought this mass was possibly cancer.

Well, it wasn't cancer. Upon surgically opening his abdominal cavity, the surgical team discovered a different kind of mass: a large blue towel. It gets worse; the towel was intended for surgeons and the team to wipes their hands with only.

Oops. The hospital had no explanation for why the towel ever got inserted in the patient's belly, because it was not the kind of towel or sponge that was supposed to be used in the body cavity.

But here's the most interesting part: the only reason this story has seen the light of day is because California requires mandatory reporting of medical mistakes that can cause serious injury or death. But for this law, most likely the hospital would require the patient to sign a confidential settlement if he sued the hospital for malpractice.
Case closed, and the public never learns about something awful like this happening at its local, "trusted" hospital.

States like Ohio need to pass mandatory reporting requirements of medical errors, mistakes, and mishaps. Hospital care is big business, and hospitals often compete, and even sue each other, over market share.

Their public relations and messaging machines are colossal, and they are quick to tout their latest achievements and ratings. That's fine.

But the flip side of that coin is that the public should know when preventable errors like this one occur. Otherwise, we never get to peer behind the curtain, or in this case the surgical curtain.

If there's no transparency for hospital errors, it's like logging onto an online ratings site where negative reviews are not allowed.

Monday, January 11, 2016

"Does Your Dog Bite?" Inspector Clouseau And Ohio Dog Bite Laws....

The "Pink Panther" series of movies has provided many laughs (and quotes) in The Wilson house over the years. An exchange from "The Pink Panther Strikes Again," is a repeat favorite, particularly when one of us is being accused of not doing something (usually a household chore):  

Clouseau: Does your dog bite?
Clouseau: [bowing down to pet the dog] Nice doggie.
[Dog barks and bites Clouseau in the hand]
Clouseau: I thought you said your dog did not bite!
Hotel Clerk: That is not my dog.

"Not my dog" has become code of sorts for "that wasn't my mess to clean up" (usually not a defense but still funny....). 

That exchange does raise a legal question: does your dog have to bite or physically attack a person under Ohio law in order for you as an owner to be liable for the injuries Fido causes?

Not at all. Ohio has one of the more expansive dog liability statutes in the U.S. Basically, if your dog (1) chases; or (2) approaches in a menacing fashion or apparent attitude of an attack; or (3) attempts to bite; or (4) endangers a person and causes injury, you are liable if you own, keep, or harbor the dog. 

There are limited exceptions to this blanket rule of liability: if the injured person was (1) criminally trespassing or committing a crime on the property; or (2) teasing, tormenting, or abusing the dog on the owner's/keeper's property.

This law covers a variety of situations other than a classic "dog bite." For example, if the dog rushes onto another person's property and causes someone to trip or fall, you as a dog owner are liable. Similarly, it covers situations where joggers, walkers, or bicyclists are chased by dogs and sustain injury in the process.

The message from Ohio's dog bite law is clear: You as a responsible pet owner need to keep your dog under control, restrained, and not roaming all over the place, or you will be held accountable for the harm caused. 

So, if Inspector Clouseau were to ask "Does your dog bite?" in Ohio, the correct response would be: "Does not have to." Despite this, all mail carriers, UPS, and Fed Ex drivers should still have the mace handy just in case....   


Saturday, January 2, 2016

What Should I Expect At My First Meeting With You?

By Brian R. Wilson, Esq.

It was a very good question and not one I have been asked often. But it was easily answerable. "It's pretty simple. You do most of the talking. I do most of the listening, though I may ask a few questions. I'll let you know what your best course of action should be and we'll go from there."

For an auto or motorcycle case, the initial client meeting lasts approximately one hour. Naturally, there is no charge for the meeting, but I have to laugh at how many attorneys/firms tout a "free consultation" as some great selling point.

News flash. Everyone offers it. It's about as big of a deal as a free straw with a drink purchase. What IS a big deal, and makes us a bit different, is that you are not obligated to sign any sort of fee arrangement or contract at the initial meeting. In fact, it is discouraged, and for good reason.

You should be given the time to take a proposed agreement home, look it over, talk it over with your loved ones or friends, and even talk to another attorney or firm in the interim.

The last thing any car or motorcycle accident victim needs is a "high pressure lawyer come on" after dealing with (_____________slow, stingy, annoying, aggressive or fill in other appropriate adjective here) insurance companies, and being bombarded with lawyer and chiropractor materials or pitches which blow up your phone or land on your doorstep.

The right personal injury attorney to help you with and through your journey is worth waiting for.

Wednesday, September 9, 2015

How Secret Insurance Company Databases Are Used (And Misused) Against Personal Injury Victims...And The Key That Allows Them Access

Just the other day I was negotiating an auto accident claim with an insurance company adjuster. The conversation went something like this:
     Adjuster (Adj): Your client had a previous injury to his foot.

     Me: No he didn't.

     Adj: Says right here in our ISO database that he had some sort of injury or claim involving his foot before the crash.

     Me: I'm pretty sure I'm right but if it's true I need to know about it. What info do you have in your database? What date are you referring to?

     Adj: (gives date of "previous foot injury").

     Me: Ah, well that date was ONE DAY AFTER THE CRASH WITH YOUR INSURED, so it's wrong! There was no prior injury to his foot!

     Adj: OK, well, I'll make a note that there was no previous injury.

And there lies the problem. Insurance companies have access to gigantic databases of information that they love to scour in an effort to see if auto accident victims have made any sort of previous claims of injury in past auto accidents, falls, or even workers' comp claims. In theory, no problem: if you've had a previous injury or problem with a body part that's been injured in a crash, that's fair game for everyone--your lawyer and the insurance company--to know.

But who knows what garbage is entered into those databases? In my client's case, the information in the database shared by the adjuster over the phone was dead wrong. What's more, insurance companies can access your credit and debt history, including any bankruptcies. Unless your Donald Trump, insurance companies view your past bankruptcy as a stain on your character, and more likely to file an exaggerated or "trumped up" (pardon the pun) claim.

What's the key that unlocks their access to this database? Your Social Security Number. In my client's case, he dealt with the insurance company on his own before he hired me. He disclosed his SS No to them as part of their "routine procedures" early on in the claims process.

Do NOT give the at fault driver's insurance company your Social Security Number! Despite what they may tell you at the outset of your claim, they do not have to have your SS Number to process your claim. I NEVER give out my clients' SS Numbers, even when told by the adjuster that "we have to have it." No, they don't. They may need it when the claim settles in order to verify whether the claimant was receiving Medicare benefits, but that can be done after a settlement is reached.

But they do WANT it as soon as possible--to make a trip to their database to snoop and sniff. It can often influence their settlement offer, and in a bad way. And as my recent experience points out, who knows if the data is correct or garbage.


Wednesday, August 12, 2015

Insurance Companies And Motorcycle Accidents: Looking For Blame In All The Wrong Places

Insurance companies will stop at nothing to find ways to blame motorcyclists in car-motorcycle crashes. A recent case I settled on behalf of an injured motorcyclist illustrates this point.

Scenario: my client-motorcyclist entered the intersection with the right of way traveling the speed limit (25 mph). The negligent driver rolled through the stop sign and entered the intersection. Realizing that a crash was imminent, and with nowhere else to go, the motorcyclist laid the bike down to avoid being smashed by the car, and was injured in the process. 

The driver of the car was cited in the crash.

The insurance company for the at fault driver took his recorded statement, and he confirmed that he was going the speed limit. There was little to no damage to the motorcycle, and there were no skid marks. In other words, there was no physical evidence whatsoever that the motorcyclist was speeding.

Months later, the adjuster sent my client a letter (before he hired me) claiming that he was 30% at fault, because (1) he "panicked"; (2) he had ample time to stop; and (3) the driver of the car thought he may have been going 30 mph and was therefore speeding.

Thinking this was b.s., he hired me. How did the adjuster come up with his "you were 30% negligent" figure? He pulled it out of thin air. Why did he take this position? Because he could, and because of the usual tactic taken by insurance companies in many motorcycle-car collision cases: blame the motorcyclist because of the bias and prejudice against motorcycle riders.

After I reviewed the case, I concluded that the motorcyclist did nothing wrong, and reacted in split second fashion to an oncoming 3,000 pound bullet the only way he could have: avoid a T-bone crash by laying the bike down, the only real option he had.

Ohio law is clear that if a motorist has the right of way and is not speeding, he cannot be charged with being at fault in a crash. This, however, did not stop the adjuster from taking a "you were 30% at fault" position. Why did he take this position? In this example, under Ohio law, if you are 30% responsible for your crash, you can recover only 70% of your medical bills, lost wages, and pain and suffering.

Because the adjuster would not back off of this position, we filed a lawsuit. A new adjuster was assigned to the case, and they backed off and finally made an offer that was reflective of the fact that my client did nothing wrong.

The takeway here is that motorcycle accidents are scrutinized much more than crashes involving two cars. The reason is simple: motorcycle-car crashes usually involve more serious injuries, usually to the motorcyclist. Because they have more to lose in a settlement payout or jury verdict, they often resort to nitpicking the motorcyclist's actions in an attempt to save money. Unfair? Yes. But it happens all the time. That's why our phone rings...    

Monday, April 27, 2015

A Neil Young Inspired Mediation Tactic In Personal Injury Cases

By Brian R. Wilson, Esq.

Only the most hard core Neil Young fans (that would include me) have heard of his obscure tune "Walk On" (from his mid 70's album "On The Beach"--a commercial flop but an album that more recent critics have hailed as genius). Unbeknownst to Neil, it offers a great strategy at certain mediation conferences.

For those unfamiliar, mediation is the process where parties  meet informally with a mediator to try to settle a lawsuit or dispute short of a trial. 

Most sane people would rather forego going through a trial and "settle it out of court" if at all possible. In cases of private mediation (where both sides agree voluntarily to mediation and agree upon a mediator), almost all mediators are highly skilled and like the bullpen closer, they successfully close the overwhelming majority of the cases they mediate. 

What is the recipe for a successful mediation? From the plaintiff's standpoint, her attorney's stock in trade is twofold: (1) placing a realistic settlement value on the client's case after the due diligence of fact gathering, depositions, hiring experts, etc. is complete; and (2) managing the client's expectations. There's a LOT more to this, but suffice it to say the client and her attorney need to be on the same page at mediation as to what the settlement demand will be, and what is a realistic, acceptable final offer.

The defendant/insurance company's mediation metrics consist of "risk evaluation." Definition: what is our risk of getting tagged with a verdict we won't like at trial, what are the limits of our worst case scenario verdict, and what are the remaining litigation costs and expenses going forward? In theory, the combination of all these considerations should translate into some sort of realistic mediation settlement.

This is how it's supposed to work. But not all personal injury cases settle at mediation, for many reasons, even when the plaintiff and her attorney have made a realistic settlement demand. Sometimes, insurance companies come to the mediation table with no real desire to resolve the case.

In my experience there are a few tactics that increase the chance that a case won't settle at mediation.


Many insurance companies have invested billions in fancy software programs that input all of a personal injury plaintiff's accident data (injuries, medical bills, lost wages, pain and suffering, future care needs and future pain and suffering). The program spits out a settlement figure, and that's about it.

No deviation from the algorithm. The claims representative shows up at mediation with the insurance company attorney and, marching orders in hand, convey "take it or leave it" offer with little to no deviation from that number. 

Certain insurance companies (Allstate and American Family, to name a few), are famous for this. Their message: take the case to trial and beat our offer. Makes for a short and time wasted mediation. You can't negotiate with a robot.


This tactic often surfaces in catastrophic injury cases, where the potential for a huge jury verdict is substantial. Occasionally, the insurance company will suggest "early mediation" before the lawsuit gets bogged down with too many depositions and experts.

This olive branch approach sounds good in theory, and there are times when the insurance company is sincere in the mediation offer. But it is often offered with another purpose in mind.

Take for example a young, married wage earner with children, who is killed due to a truck driver's negligence. The effects of the loss of a spouse and parent can be devastating, both emotionally and financially. The grieving family is vulnerable and must withstand this tsunami for years to come, and insurance companies realize this.

Let's assume that, internally, the insurance company has evaluated its risk of an adverse jury verdict in this scenario at $3-5 million. Early mediation may offer it the opportunity to make an offer of $1-1.3 million at the end of a long mediation, well below its own evaluation of risk. There is one purpose for doing so: to dangle enough money on the table to make the family think long and hard about turning down the money out of economic necessity and vulnerability.  


Dean Smith, the late great North Carolina basketball coach, was the architect of the "four corners stall." The idea is to hold the ball for as long as possible while ahead on the scoreboard in order to run out the clock, or force the opponent to gamble on defense and make a mistake. Insurance companies and certain institutional defendants, like nursing homes, will occasionally employ this tactic, with mediation acting as camouflage.

Recently, I litigated a case against a long term care facility. Numerous depositions had been taken, and the trial was close at hand. The timing of the mediation was perfect in that enough information (known as "discovery") had been exchanged that the parties had a good idea of the probable jury verdict outcome.

Yet, at mediation, the facility showed up with a realistically low settlement offer, claiming it needed "more time" to evaluate the case. Truthfully, it needed no more time, and the offer was designed to weaken my clients and make us spend more money on trial preparation. It had the opposite effect of hardening my clients' resolve to see the case through to the end.

Less than one week before the trial, the facility made an offer it should have made three months prior, and the case settled.

When any of these scenarios rear their ugly heads, often the best tactic is to invoke Neil's advice and "walk on." In the right case, it can send a powerful message to the other side that you are prepared to take the case to trial and a verdict.

But it is important to walk on in a professional, emotionless manner without burning any bridges with the other side, for one reason: good mediators will not consider the case closed when one side leaves the mediation table. Many mediators will not view walking on as a failure, but an opportunity to keep the lines of communication and negotiation open, and this will often result in a settlement days or weeks after the "face to face" mediation has concluded.

Hopefully now my parents understand why I blasted all of those Neil Young albums in the house or the car. Educational purposes only.... 





Monday, March 30, 2015

When Nursing Homes Fumble The Transfer Process...And What You Need To Know

By Brian R Wilson, Esq.

In the fairy tale movie classic " The Princess Bride," Miracle Max (played by Billy Crystal) is the medieval "pharmacist" responsible for concocting a magic potion to bring hero Wesley back to life from a "mostly dead" state. When asked to hurry the job, he snarkily replies: "You rush a miracle man, you get rotten miracles."

Such is often the case when hospital patients are transferred and become nursing home residents. The rush of the transfer process can sometimes expose nursing home residents to serious harm.


From The Hospital's Standpoint: 

When a Medicare patient is admitted to a hospital, the hospital's payment is based on the diagnosis or DRG ("diagnosis related group"), and NOT the number of days spent in the hospital. But there are special "transfer DRG's" that determine a hospital's payment for patients transferred to skilled nursing facilities like nursing homes.

It's complicated. But at the root of it is the possibility that a patient  transferred from a hospital may be due in part to payment and reimbursement rules as opposed to what is in the patient's  best medical interests.    

From The Nursing Home's Standpoint:

Any seasoned nursing home malpractice attorney is familiar with the term "census" or "census development." It refers to a nursing home's efforts to fill as many empty beds as possible. Simple math is the reason: more resident bodies in beds, more $$$. Nursing homes have departments and personnel dedicated to the recruitment and referral of patients from both hospitals and directly from the community. Their Marketing departments work directly with hospitals to stay top of mind for hospital referrals, and their Admissions departments are charged with screening admissions to make sure the nursing home can meet the residents' care needs upon admission.

That's all well and good, but in the rush to keep the census of admissions high, it can be a breeding ground for mistakes, shortcuts, and cutting corners. 

The Rushed Admission...  

The turnaround on a transfer from a hospital to a nursing home can be less than 24 hours. In a recent case I litigated, the nursing home was sent medical information regarding the patient's condition and medical needs, and accepted the patient for a future transfer within hours. So far, so good, but the patient was not transferred to the nursing home until late afternoon on a Friday--some 48 hours later.  Upon arrival, there was no oxygen in the room and no special breathing equipment per the hospital physicians' orders. It was a rushed transfer and admission, and things only got worse because of a series of choices by the nursing home about when to order necessary equipment.

The nursing home had a policy of not ordering certain respiratory equipment until after the patient arrived, for fear of being charged for delivery and use of the equipment in the event the patient did not arrive at the home for whatever reason. Unfortunately in this case, the equipment did not arrive until after the patient died, approximately 12 hours after admission.

 By the time a hospital patient is transferred to a nursing home, the nursing home is supposed to be familiar with the patient's specific care needs. Federal regulations require it: 

Each resident must receive and the facility must provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychological well-being, in accordance with the comprehensive assessment and the plan of care. 

In virtually every case, the hospital sends the physician's orders to the nursing home so that the nursing home can make sure the patient's specific care needs can be met. What's more, the patient typically shows up at the nursing home with a copy of the hospital physician's orders, in case they weren't transmitted before his or her arrival. Yet, despite clear orders and regulations, necessary equipment is sometimes not present when the patient arrives.

The Takeaway...

If your loved one is about to be transferred from a hospital to a nursing home, ask as many questions of the nursing home as you possibly can. Make sure you have a copy of the physicians' orders that will accompany your loved one to the nursing home, and have the hospital explain it to you and go over any abbreviations in the orders.

Make sure those orders make sense to you. And when you arrive at the nursing home, you'll have a good idea what their marching orders are, and what they should be doing to follow them. 


Monday, January 26, 2015

Large Truck Wheel Separation Accidents: What Are The Common Threads?

By Brian R. Wilson, Esq.

Imagine a rolling, 200 pound tractor trailer wheel careening toward you at 50-60 MPH when you're traveling at 65-70 MPH and have nowhere to go to swerve or avoid it. This is what can happen:

  (Actual photo of truck trailer wheel after impacting a pickup truck going in the opposite direction on a  four lane, major Interstate)

 Large truck tractor or trailer wheel separation is like a detonated dirty bomb: you never know the true path of destruction or how devastating the damage will be. And the damage is often done in a split second. But a wheel separating and the resulting injuries to motorists is rarely ever the product of a sudden, unexpected, split second event. To understand the reasons for a commercial truck wheel separation, one must first appreciate that a large truck is not a car and a large truck crash is not like a car crash.

Large trucks (defined as vehicles with a gross vehicle or gross combination wright rating as 10,001 pounds) are regulated by federal and state law. Specifically, The Federal Motor Carrier Safety Act (FMCSA) contains very specific regulations involving a myriad of situations affecting large trucks, from hiring of drivers to the operation and maintenance of trucks.

These regulations include obligations on drivers to inspect their rigs both before and after every trip and document that fact. Thus, by reconstructing the driver's activities via log book entries, fuel and other receipts, maintenance and repair records, and other documents, it can yield evidence and clues as to why a wheel separated.


A truck driver pulling a trailer on the Interstate suddenly notices that his rear dual trailer wheels have separated from his trailer. They smash into a car traveling the opposite direction, injuring occupants in the car. The truck driver tells the investigating officer that he had no notice of any problems. However...

Nine days before the incident, the truck driver undergoes a routine inspection by Department Of Transportation in a nearby state, and the inspection reveals the trailer's brakes are shoddy and leaking brake fluid, among other violations. The trailer is deemed "out of service" until the brakes can be replaced. A repair facility performs the brake repairs, and to do so has to remove and re-attach the wheels to the trailer.

So why did the dual trailer wheels suddenly disengage nine days later?

Because a lawsuit was filed, both the driver's paper trail, and the wheels themselves, were examined. The wheel holes (through which the bolts slide to accept the lug nuts) revealed a wear pattern that was consistent with a gradual loosening of the lug nuts. We claimed the physical evidence was such that a driver would have noticed a problem either through feeling a problem while driving. or through mandatory pre or post trip inspections, which include wheels and lug nuts.

The other problem was that the lug nuts were either under or over torqued when repairs were made (which was denied by the repair facility). The combination of these two factors led to the wheel separation, in our opinion, and took this incident out of the realm of a sudden, unexpected, "freak" occurrence.

The lawsuit was settled shortly before trial. By stepping back and re-constructing the driver's and the trailer's history before the incident, we were able to show plausible reasons for why a set of wheels could separate just nine days after they were re-attached.

One final note: many of the "retention" periods for certain aspects of a driver's paper trail under the FMCSA are as short as six months. All the more reason to contact an attorney or firm familiar with handling large truck accident cases sooner rather than later.

Sunday, January 11, 2015

Why The Lack Of A Citation Against A Nursing Home Is No Bar To A Negligence Lawsuit

By Brian R. Wilson, Esq.

Nursing homes are regulated by state and federal agencies. As part of their license, nursing homes are required to undergo an annual license certification survey. In addition, they are subject to unannounced annual inspections/surveys.

More importantly, they can be investigated after an individual complaint is filed against them. This sounds all well and good, but what is the likelihood that a preventable mistake in a nursing home will ever see the light of day in the form of a citation against the nursing home? And what effect does a citation or lack of one have on any negligence lawsuit filed against a nursing home?


Under Ohio law, nursing homes have an obligation to report incidents of abuse, neglect, and theft of residents' property to regulatory authorities. Abuse and theft appear to be obvious, but what is meant by "neglect?" Federal regulations define it as a "failure to provide goods and services necessary to avoid physical harm, mental anguish, or mental illness."

In a recent nursing home case I litigated, we claimed a nursing home did not timely secure physician ordered respiratory equipment, which we claimed resulted in harm to the resident. According to them, there was no legal obligation to self-report the incident as an instance of "neglect." Assuming this to be true, what does that say about the relative weakness of the obligation to self-report adverse incidents resulting in harm to residents?

Answer: it's as weak as a cup of tea brewed with an old, used tea bag. Bottom line: if they don't report it, you have to make a formal complaint about the care your loved one received to The Ohio Department Of Health.... or hope the surveyors just happen to find it on their own in the annual survey process


What is the likelihood that a random survey will catch a nursing home error or substandard care that results in harm to a resident? To start with, there are 945 nursing homes in Ohio. Assuming a conservative number of 100 residents per home, that's almost 100,000 residents per year.

State surveyors simply don't have the time and resources to go over the medical charts of every resident to scrutinize whether their care was adequate. As a result, the surveyors will examine a random, representative sample of residents' charts. According to testimony in a recent nursing home case, it was estimated that surveyors randomly sampled approximately 20% of current residents' charts, which included past residents from that same year.

Bottom line: it's hit or miss, and perhaps largely miss, that a survey will ever discover an instance of substandard care, and that assumes the surveyors have access to all charts.


Suppose you do file a complaint against a nursing home. If the appropriate agencies investigate and do not cite or fine the nursing home, does it prohibit you from pursuing a negligence lawsuit against the nursing home? Not at all. Whether or not the nursing home was cited/fined HAS ABSOLUTELY NO BEARING on your ability to sue the nursing home. Under Ohio law, the results of any survey process are inadmissible in any lawsuit. If the nursing home was not cited, it cannot stand up in court and tout that fact. Conversely, if it was cited, the patient's family cannot introduce that fact into evidence.

Why? I've seen countless cases where the nursing home was not cited, yet it knew it handled the resident's care in a substandard manner, and chose to settle the case, or a jury decided that the nursing home was negligent. And in fairness to nursing homes, juries have concluded that a nursing home was not negligent even in cases where the nursing home was cited by a state or federal agency.

All of this proves one thing: the survey and citation process has its limitations, and any jury that decides a nursing home negligence case does so independently of any survey process.  And that's a good thing.

So D.I.Y. Report the nursing home if you suspect your loved one received inadequate care, come what may of the process. Don't be the needle.....

Monday, October 27, 2014

Follow The Money Trail....And You May Find Malpractice....

Recently a woman sued a Chicago area hospital for using improperly sterilized, dirty endoscopes that allegedly inflicted her and as many as 42 other patients with a nasty bacterial infection known as CRE (carbapenem-resistant Enterobacteriaceae).

This "superbug" is usually contracted in medical facilities, and can be fatal if it enters the bloodstream.

How did this happen? According to a recent article, "manual cleaning and high level disinfection" (whatever that is) failed to remove E-Coli and other bacteria.

Ewwww. Disgusting at a minimum that a used, unsterilized endoscope can find its way into numerous patients AND cause potentially fatal harm.

Despite the presence of the CRE bug in perhaps dozens of patients, the hospital claims there were no lapses of protocols. And despite there being no lapses of protocols, the hospital is now including gas sterilization of its endoscopes.

Now, I'm no expert in how to sterilize all the scopes that are used in volume fashion at a hospital or outpatient facility. But why is the hospital now including more elaborate (and presumably more effective) gas sterilization of its scopes? This is just a guess on my part, but I would suspect that gas sterilization is probably more expensive than manual cleaning, which was considered "good enough"....until this happened.

Bottom line: some "protocols" are more expensive than others. Whether the setting is a hospital or a nursing home, many times the ultimate decision on which policies and procedures to implement comes down to the almighty dollar.

Never forget:  most hospitals and nursing homes are just another form of a big business. Budgets and financials are just as important as other considerations. Although this is not a bad thing per se, when they cause safety shortcuts and cause patient harm, they shouldn't get a free pass from our civil justice system.

Friday, October 10, 2014

What If The Death Certificate Is Wrong?

The cause of death on the "official" death certificate read: "Intoxication." One small problem. The "intoxication" that led to the patient's hospitalization for a broken jaw in a one car accident occurred about 10 days earlier. After successful jaw surgery, which included wiring the jaw, the patient was resting comfortably and was soon to be weaned from the tracheostomy tube and ventilator, in preparation  for discharge.

Unfortunately, on post op day 10, a nurse dislodged the patient's trach tube while suctioning it. A cascade of medical errors followed, including the inability to re-insert the trach tube in the patient's trachea or "windpipe." Consequently, the patient suffocated and died.

A medical malpractice case followed. The issue was whether the hospital staff was negligent in dislodging the trach tube and/or failing to timely re-insert it in the patient's airway. All the medical experts in the case--even the doctors' and hospital's--agreed that the immediate cause of death was cardiopulmonary arrest due to oxygen deprivation.

Yet, we had this "official" death certificate that listed "intoxication"--10 days prior-- as the cause of death, which was dead wrong (pardon the pun). The question is: in a medical negligence or any other civil lawsuit, can the cause of death be tossed out or set aside under certain circumstances? Great question--glad you asked! The answer is YES.

In Ohio, the coroner’s factual determinations concerning the manner, mode, and cause of death as expressed in the coroner’s report and death certificate create a non- binding, rebuttable presumption of the actual cause of death, unless there is competent, credible evidence to the contrary. In other words, the coroner's findings are not set in stone, and can be rebutted if there is good evidence to the contrary.

The reason? Coroners, like any other profession, aren't infallible and don't always get it right. The law recognizes this. In our case, the coroner had apparently confused the immediate cause of death (the dislodged trach tube) and the remote cause of death (the car crash.) for reasons I'll never truly understand... 

The case above settled shortly before trial so the Court never ruled on our motion to toss the coroner's "intoxication" cause of death. But given the overwhelming expert testimony that the dislodged tube cut off the patient's oxygen supply, most likely the death certificate would have been inadmissible at trial.

Tuesday, September 23, 2014

"Are You A Bulldog Lawyer?"

This is a common question that people ask me at the initial client meeting. After all, what client does not want their lawyer to "fight" for their case? The primary source for this expectation has its roots in the vast wasteland known as television. Between law shows showing aggressive and over the top courtroom lawyer betrayals, and countless lawyer TV ads vowing to "fight for you" or to "make them pay," it is little wonder that people may expect that of the lawyer they hire.

But that question is the equivalent of eating cotton candy for dinner. Little caloric value, not fulfilling, and leaves you wanting for more, for lots of reasons.

After having been a personal injury attorney for 25 plus years, with the battle scars to prove it, you learn a few things. Being a "bulldog," without more, is like that cotton candy meal. I've seen and have gone up against so called "bulldog" lawyers who are long on bombast and hot air and short on common courtesy, civility, common sense, and legal acumen. They run roughshod through everyone--opposing counsel, witnesses, sometimes even the judge. Sometimes the trail of destruction they leave makes it difficult if not impossible to bring a case to an amicable resolution.

When your stock in trade as an attorney is fear, intimidation, yelling and screaming, and pushing and injecting personal emotions into any given situation, well good luck with that. It eventually implodes like an arsonist who sets the fire and leaves the scene, even if it gives the lawyer's client a temporary sugar high.

So what is a good set of criteria for choosing an attorney to help you solve any legal problem? In no particular order, competence should be high on your list. How do you measure a lawyer's competence?

First and foremost, ask around. You'll get more from simply asking trusted friends and colleagues than any useless lawyer ad or slick, self-laudatory materials left on your doorstep or mailbox two days after your crash.

Second, what kind of information can you acquire from your attorney or firm for your particular problem? Generally speaking, any written information the lawyer offers in the form of books or reports can be helpful in measuring competence, but you have to be careful here. I've seen law firms that have great looking websites and list their "significant cases,"when in reality they farmed the case out to another lawyer or firm, and are merely taking credit for the results of a case they did no heavy lifting on.

Third, you must ask about the attorney's actual experience in the courtroom if you have a personal injury or criminal case, for example. Here are a few simple questions to ask of any personal injury lawyer: when is the last time you tried an auto or medical negligence case to a jury? How many of these cases have you tried to a jury verdict in the last few years? You need to know this as your worst case scenario, and if your attorney has not seen the courtroom in years, think: paper tiger.

Finally, you need to gauge the attorney's passion for what he or she does and your case. Did the attorney take the time to talk to you in detail, or did you feel like a number or that your time was not really respected or valuable? More than anything else, what kind of vibe are you getting from the attorney? Realistic yet positive? Personable? Disinterested?  All the personality of a piece of wet cardboard?

And back to that bulldog thing. There is a time and a place for everything. Generally speaking, in the world of litigation, my prescription is simple: treat everyone like you would like to be treated. Simple decency, kindness, and common courtesy will get you more information than acting like a mad dog tearing through a meathouse. On rare occasions, a witness or a defendant or an expert will be so caustic or rude that they give you permission to take a more firm handed approach.

After all, any dog backed into a corner will know when and how to bite back.

Friday, August 22, 2014

Hospital Tube-Connection Mishaps...More Than a Mere "Oops..."

"The tube just came out. These things happen."

I'm sure thousands of families have been told this in hospitals when any sort of tube, catheter, or other medical device lost its connection with a patient.

A recent report, however, shows that this is frequently not something that "just happens." Rather, it appears to be a problem that is both underreported and largely preventable. According to The Joint Commission, which sets standards for accrediting hospitals, tube misconnections can have devastating consequences:

The New York Times reported on the death of a fetus and expectant mother after
a feeding tube was accidentally connected into the mother’s bloodstream. 6  In 34
various publications, 116 other case studies were found involving misconnections
directing enteral feeding solutions into IV lines. 7  These adverse events resulted in
21 deaths. It is believed that tubing misconnections are underreported; adverse
events related to tubing misconnections are sometimes not reported, especially
when the mistake does not result in harm to the patient, 1  and they are sometimes
reported under another category, such as a medication error. The risk for tubing
misconnection is high, considering that almost all patients admitted to the hospital
are likely to receive an IV. 8  This risk is also seen in other settings.   

Types of misconnections that have been reported to cause serious injury or death or the potential for both include:

  • Feeding tubes connected to IV's;  
  • Limb cuff inflation devices connected to IV's;
  • Epidural solutions connected to  Peripheral or central IV catheters;   
  • Epidural line connected to IV infusions;  
  • Bladder irrigation solution using primary IV tubing connected to  peripheral or central IV catheters;  
  • IV infusions connected to indwelling bladder or "foley"catheters;   
  • IV infusions connected to nasogastric (NG) tubes;   
  • Primary IV tube connected to blood products;  
  • Feeding tubes connected to a tracheostomy tube; or  
  • IV solutions administered via blood administration 

Why do so many tube misadventures occur in hospitals? Two major reasons include (1) health care providers going into "automatic" mode (I prefer to call it "auto pilot" syndrome) due to stress or fatigue, and (2) "spaghetti syndrome"---too many tubes and wires strewn in haphazard fashion. Both are the proverbial "accident waiting to happen."

As you can see, many of these causes are entirely preventable, which is why The ISO (International  Standardization Organization) is formulating new standards that will hopefully spurn hospitals to take measures to prevent tube misconnections from occurring.

Having litigated two misconnection cases, both resulting in death, I can attest to how easily they can be prevented, and how awful they were for a family to accept. Although from the list above some of these tubes and wires have fancy names, most all have one thing in common: they are frequently a loved one's lifeline. You don't need to be an Ivy League trained doctor to know that if you knock out a patient's lifeline, some really bad things can happen... 


Thursday, July 24, 2014

This Was Not A Seven Figure Settlement....But Satisfying Nevertheless...

Law firms and lawyers love to brag on websites about a lot of things.

Much of it is useless fluff ("experienced" or "aggressive"attorneys, whatever the hell that means) and some of it can even be quite misleading. Many of those "seven figure settlements" or verdicts a firm lists are not even the product of their own work or expertise. Many firms refer those cases out to another attorney or firm.

All that aside, today was not one of those "seven figure" days for me. In fact, today was a freebie for an elderly couple. Weeks ago their car got hit by a real gem of a nice guy who fled the scene. They weren't hurt but their car was totaled.

The driver was driving someone else's car, so there was a delay of a few weeks in getting the owner's insurance company to appraise the car and investigate the claim. In the meantime, the storage fees on the car exceeded $1,000, through no fault of the elderly couple.

This particular insurance company, who I have had consistently HORRIBLE dealings with, tells these nice folks: "we're only paying half of the storage bill since it's too much." They offered him $1200 on his car, and told him he could pay the rest of the storage bill out of the $1,200 offer.

They did this for one reason: they could. They figured they could strong arm these folks into caving in, because no lawyer would take their case over a $500 storage bill dispute.

They called me after an Internet search, and I told them to come in after hearing their story. I had an idea. I told them that if I call the adjuster on their behalf, it would probably go nowhere because the first thing out of his mouth would be "it's company policy," followed by "go ahead and sue if you want," figuring that no lawyer would do that over such a small amount.

So here's what I told them: "Go down to the local municipal court, take out a small claims petition, and bring it back. I'll help you fill it out and then take it back and file it. THEN I'll call the adjuster and my guess is that it will get worked out, since now they'll have to send a lawyer and an insurance rep to the hearing."

Almost a week later, I finally get a return call from a new adjuster. After haggling over a few facts, I told him that my clients sued their insured and if they did not want to pay the storage they could tell the magistrate at the hearing why a nice elderly couple should have to incur any storage fees for a hit and run driver and a delayed insurance investigation that led to the high storage bill.

And I told them I would be at the hearing representing these folks for free.

Next day, it's the adjuster on the phone: "we'll pay the storage bill."

Happy ending. Clients got what they wanted, and weren't out anything in the process.

I made no fee but made new friends. I guess it's a good sign that after 25 years, what happened to some nice folks still ticks me off enough to help with a practical solution to the problem. No burnout yet. Still like what I do.

It's certainly not headline grabbing. And it won't pay any overhead. But it sure is satisfying as hell. Call it a "zero figure settlement." Now there's some real bragging.....