Thursday, December 17, 2009

Getting Proper Coverage If You Drive A Company Car

Here's the scenario: You drive a company car. You were told by someone in your company that the car has "full coverage." Months or years later, you are seriously injured in a crash by an uninsured motorist. You miss months or years or work, or worse yet can't return to your job because of your injuries.

You come to learn that your "full coverage" on the company car work did not include uninsured/underinsured motorists coverage because your company declined the coverage(perfectly legal in Ohio and other states).

If you were injured on the job, workers compensation laws MIGHT cover your bills and a portion of your lost wages. But what about compensation for the rest of your wages, and your permanent injuries? Worse yet, what if you weren't on the job?

How can you protect yourself in this situation? More than anything else, you need to have high levels of uninsured/underinsured motorists (UM/UIM) coverage--more than the standard $100,000 limits most people have (I explain why in my "How To Buy Car Insurance" book). This coverage protects YOU if you're injured by a driver with little or no liability insurance.

Armed with the knowledge in the book, there are basically two things you can do to find out whether your employer has purchased enough UM/UIM coverage to protect you. First, ask your HR department or someone in charge of insurance matters: "Is there UM/UIM coverage on my car and what is the amount of coverage?" Ask to see a copy of the "Declarations Sheet" for your car. But what if you are not comfortable asking this for fear of "making waves?" There is still something you can do.

Ask your auto agent about purchasing "Drive Other Car" coverage. This coverage basically covers you for other autos that you drive that you do not own. You may ask: "Why doesn't MY auto insurance cover me when I drive another car?"

Welcome to the world of fine print "exclusions" in your policy. Buried in your policy is probably a "non-covered auto" exclusion. It basically says that your auto policy does not cover you when you drive another vehicle you do not own when it is made "available for your regular use."

Here's the beauty of asking your agent about purchasing "drive other car" coverage. He or she will be able to find out from your employer whether your company car has UM/UIM coverage as a means of determining whether you even need to purchase this coverage.

The absolute WORST thing you can do is drive a car that has little to no UM/UIM coverage. In over twenty years of representing auto accident victims, I have seen, in broken record fashion, a repeating scenario: clients seriously injured by drivers with very little or no insurance. And if you do not have high levels of UM/UIM coverage, guess who is left holding the huge bag of bills and unreimbursed lost wages (not to mention nothing to show for your permanent injuries)?

That would be you--which makes you twice the victim.

Thursday, December 10, 2009

Cellphone Industry Should Not Be Liable For Talking Drivers Who Cause Accidents

The issue of "distracted drivers" (and distracted pilots)continues to make news. Recently, an Oklahoma woman sued the wireless cellphone provider of a driver who killed her mother while talking on a cellphone.

This is a novel lawsuit. The claim? That the cellphone industry failed to provide appropriate warnings to users in light of the fact that it was foreseeable that users would talk while driving.

Negligent "failure to warn" cases can be legitimate when the product hazard is not obvious. For example, if a children's go kart can burst into flames if it is tipped on its side, a manufacturer should have a duty to place a conspicuous warning on the product and in the manual (an actual case we litigated a few years ago).

But the problem with the "cellphone lawsuit" is that, unlike the latent risk of something like a fire, it is common knowledge that it can be dangerous to talk or text while driving. The issue will therefore be: would an appropriate warning have prevented the driver from talking on his phone? Probably not.

Look for this case to be dismissed. And win or lose, I'll bet that cellphone providers will change their ways and start to include some specific warnings on the dangers of talking or texting while driving, which is probably not a bad thing anyway.

Wednesday, December 9, 2009

Medical Near Misses--Where Do They Go?

When two planes nearly collide in mid air, it is newsworthy and we immediately hear about it. But if a medical "near miss" tree falls in the forest of the medical system, can you hear it? In other words, where does it go? Is it reported, acted upon, and corrected so it will never come to fruition and harm a patient?

An example will bring this issue to light. The other day, my wife visited the pharmacy at a "chain" store to pick up a medication for one of our sons. When she returned home, there were four bottles in the bag. One was our son's medication. The other three were a chemotherapy drug, and anti-nausea medication, and another medication I can't even remember. Obviously, we were given some poor cancer patient's chemo drugs. Ugh.

Aghast, my wife called the pharmacy. They apologized and asked her to return the meds, which she did. The pharmacist told her the other three meds "must have fallen in the bag." Yeah, right. So what happened after she returned the meds? Did the pharmacy fill out an incident report and voluntarily report it to the retailer? Was an investigation initiated to get to the root cause of this egregious error and establish or modify existing safety systems to make sure this error did not happen again? Or did the pharmacy simply breathe a sigh of relief that such a colossal screw up didn't result in serious harm to the patient and go about its business like nothing happened (the ostrich approach)?

We'll never know. But it makes me wonder that, if this happens again, and a pateint who is harmed brings a lawsuit, will lawyers for the pharmacy say with a straight face: "this pharmacy has a spotless record and nothing like this has never happened before."

Just so you know, Ohio is one of 18 states that have NO requirement to report "adverse events" or even things like hospital acquired infections. So if ACTUAL adverse events are not even required to be reported, what do you think happens to near misses?

So, it appears that your only remedy is to go over the head of who was responsible for the error and try to report it yourself. Otherwise, you may be standing on the tip of an iceberg and not even know it. And somewhere down the road it may just crash into someone else.

These mistakes will continue to occur unless and until the medical delivery system adopts a zero tolerance policy for errors similar to the airline industry.

Tuesday, December 8, 2009

Where Do We Turn When Trust Is Betrayed?

I found this recent article about a Gallup survey on trust that decries a general lack of societal trust. I'm not so sure this recent "study" is all that illuminating. But it got me thinking in general about the notion of trust in our society and how it intersects with the law.

By and large, we are a trusting society. The other day I was Christmas shopping and made some purchases at Dick's Sporting Goods. The checkout girl asked if I wanted to make a donation to St. Jude's Children Hospital, which I did. I had the fleeting thought: "How do I know if my donation will ever make it in full or in part to St. Jude's?" The answer was simple: you trust that it will.

Similarly, we trust that the fast food burger or sub we eat won't be tainted with e coli. We trust that the financial institutions that hold and invest our money won't defraud us. And we still place an inordinate amount of trust that our hospitals and doctors will safely treat us.

Simply, our society is built on trust. So where so we turn when that trust is shattered by any of these institutions? Where is the accountability for breaking our trust and harming us in some fashion? The only avenue of redemption we have is the legal system. It too is founded on trust and is by no means perfect either, but the only alternative is personal revenge and taking the law into our own hands, which is chaos, the antithesis of trust.

So I have to wonder why so many people are clammering for a legal "reform" movement that seeks to chop down our right of legal redress when that sacred trust is broken. What is even more perplexing is that this movement is moving forward on the heels of unprecedented Wall Street financial fraud that assaulted millions of hard working Americans' 401K's and other retirement plans, and practically brought our national economy to its knees.

Our legal system is the last line of defense when our sacred trust is fractured. Why we are seeking to dilute it at this crossroads in our nation's history defies logic, reason, and history.

Sunday, December 6, 2009

Hospital Boards More Concerned With Financial Issues Than Patient Safety?

I'm not a gambler. Never been to Vegas and it's not even on my bucket list, much less my radar screen. But I am willing to bet that, if you asked any living, breathing human being with half a brain: "What should a hospital's Number One priority be," the response would be universal: quality of care, and patient safety.

However, a recent survey of hospital boards reveals a shocking result: quality of care is taking a back seat to the business and financial aspects of running a hospital. Sixty six percent of the 722 Hospital Board Chairs surveyed listed quality of care as third on the list of priorities, which was not suprising to one former hospital CEO:

The study results are not surprising, said James L. Reinertsen, MD, a health care consultant and former hospital CEO. He was not involved in the study.

"Boards tend to think that quality and safety are already pretty good or OK and that it's not an issue," Dr. Reinertsen said. "They're looking for leaders at the board level and executive leadership to work on financial issues, strategic issues, growth issues and the whole list of what I'd call 'business issues' within health care systems. They take the core business of delivering care kind of for granted."

"Growth" and "business issues" more important than quality of care? Now think of all the fancy ads and brochures and websites hospitals pour millions into that tout--you guessed it--quality of care. Come to think of it, I've never seen any hospital ad campaigns that said: "Our number one priority is the business of growing our hospital."

This survey proves the obvious: hospitals are a business. Like any business, if they run it ethically and don't cut corners with patient care, they deserve to make a profit. And grow and prosper. But when committment to patient safety and quality of care is not "Job One" (as Ford Motors used to say), what follows is obvious: a pattern of preventable medical errors. If you think this is an isolated problem, I invite you to read a recent nationwide report that chronicles the scope of egregious medical errors in the U.S: Dead By Mistake.

These two recent news items surface at a critical time, as hospitals and their insurers are lobbying for national medical liability reforms that limit what injured patients can recover when legitimately harmed by preventable medical mistakes.

The lesson: there's a lot going on behind the curtain of fancy ad campaigns, both on the floors of hospitals, and apparently in the Board rooms as well. And some of it is not good.

Wednesday, December 2, 2009

Ohio Should Pass A "Payee Notification" Law To Protect Consumers From Fraudulent And Unethical Attorneys

My most recent post discussed the rampant health care fraud that has gone on for years in the medical profession. Well, we in the legal profession have our own warts, and it's only fair to bring our own shortcomings to the light of day as well. Since 1985, Ohio has had in place a state agency known as "The Client's Security Fund." This organization is devoted to securing restitution for clients ripped off by unscrupulous attorneys. According to its 2009 Annual Report:

Since its inception in 1985, the fund has awarded more than $14 million to 1,795 former law clients (see Appendix C). All fund losses are attributable to less than 1 percent of Ohio’s more than 56,320 licensed attorneys, 42,164 of whom are engaged in the active practice of law. This report confirms that the verwhelming majority of Ohio lawyers observe high standards of integrity when entrusted with law client money or property. However, the dishonest acts of a few can affect the public’s image of and confidence in the legal profession as a whole. The Clients’ Security Fund seeks to restore public confidence in the legal profession by reimbursing law clients for losses sustained as a result of the dishonest conduct of their attorneys.

Some states have passed "payee notification" laws that notify clients by letter that their case has settled and that the settlement check has been mailed to their attorney. The purpose is obvious: to prevent an unethical attorney from forging the client's signature and absconding with the money.

Ohio should pass a similar law. Some of my colleagues do not agree with this law and consider it as offensive and an intrusion on their attorney-client relationship.

I couldn't disagree more. We as a profession should encourage any law that protects innocent clients from being ripped off by attorneys who have no business practicing law.

Until such a law is passed, the lesson here is: there are lots of attorneys that make all sorts of claims in advertisements. Some even solicit you after an accident. And some are shysters. So do your homework and carefully research the attorney or firm you're looking to hire. Ask for plenty of word of mouth references, and look to see who's providing you with EVIDENCE of their competence, beyond all the "puffery."